Tuesday, 20 May 2003
Criminal Justice (Joint Investigation Teams) Bill 2003: Committee Stage.
I move amendment No. 1:
In page 4, subsection (1)(a), lines 14 to 15, to delete "that established the team".
The purpose of the amendment is to make the section clearer. We put it to the Minister of State that the qualifier "that established the team" provided for in paragraph (a) is inappropriate. For example, if the State and another state establish a team and a third state joins the team, the members of the third state would not be seconded members under the Minister's definition because that state would not have established the team. That is the reasoning behind the amendment.
In accordance with Article 11 of the framework decision, a joint team can be set up by mutual agreement of the competent authorities of two or more member states setting up the team. The team will be set up in one or more of the member states in which the investigations are expected to be carried out. Members of the joint investigation team for member states other than the member state in which the team operates are referred to as being seconded to the team in accordance with Article 14 of the framework decision. In other words, seconded members are the foreign members of a team appointed by member states involved in establishing the team, but these members are operating outside their state of appointment.
The definition, as drafted, makes it clear that seconded members are those members who are appointed by the member states involved in the team but not the state in which the team is operating. This clarity comes from the qualifying term "that established the team". The effect of this amendment might lead to confusion. Removal of the qualifying term "that established the team" would give the impression that seconded members could be from member states other than those involved in the establishment of the team. That is not the case.
When a joint investigation team is operating in the State, the seconded members of the team will be those team members from the other member states or states involved in establishing the team. Members of the team from states other than those involved in the establishment of a team are provided for in section 6(2)(c). This provision allows the Minister to appoint persons who, in his or her opinion, have experience or expertise relevant to the investigations concerned.
The Bill distinguishes between different types of team member. On the one hand, there are the main players, the team members appointed by the member states involved in establishing a team, called seconded members where they operate outside their state of appointment. On the other hand, there are those team members appointed from wherever to provide additional experience and expertise not readily available to the existing team. To accept the amendment would only serve to blur that distinction.
The Minister of State should reconsider this aspect. If a member state not involved in establishing a team joined one, its members would be outside the definition. As worded, the subsection clearly envisages that a team may comprise members from other member states. If that was not meant, why would a member of a team be seconded in the first instance? As worded, the provision could exclude those not involved in the establishing of a team but may join at a later stage.
I move amendment No. 2:
In page 4, subsection (1), line 40, to delete "Subject to subsection (2),".
Section 2(1) provides that the Garda Commissioner will be the competent authority of the Sate for the purposes of the Council framework decision. However, section 2(2) qualifies this by providing that where "the competent authority of another Member State requires a request to it under section 3(1) to be made, or a request from it under section 4(1) to be received, by a judicial authority, the Minister shall be the Competent Authority in relation to the request". Amendment No. 2 seeks the deletion of the words "Subject to subsection (2)" in page 4, line 40, while amendment No. 3 seeks the deletion of section 2(2). This would ensure the Garda Commissioner was the competent authority in both cases. If he is the competent authority in one case, why should he not be the competent authority in all cases? The amendments seek to provide for this.
I thank the Senator for tabling these amendments. The difficulty is that some states will accept communications and requests from the Garda Commissioner while others will not. Section 2 provides that the Commissioner will be the competent authority in Ireland for the purposes of the Bill but that where the competent authority of another member state requires that requests in relation to the establishment of a joint investigation team should be made or received through a judicial authority, the Minister, not the Garda Commissioner, will be the competent authority in such cases.
If accepted, the amendments would result in the Garda Commissioner being the sole authority for the purposes of the Bill. While that would be a neater way to proceed, if it was possible, other states, in accordance with either their legislative or constitutional arrangements, require and have named judicial authorities rather than chiefs of police as their national competent authorities for the purposes of the legislation giving effect to the framework decision. For example, Austria has named the Federal Minister for the Interior as the competent authority while Italy has named the Minister for Justice and Portugal, the Attorney General.
A member state which has nominated a judicial authority as its competent authority will refuse to send requests to, or accept requests from, the Garda Commissioner. It is for this reason that the Minister must be designated as a competent authority for the purposes of the Bill. In practice, this does not mean that the Minister will be involved in the setting up and operation of joint teams, which would be the responsibility of the Garda Commissioner. Providing for the Minister as a competent authority merely facilities the transmission and receipt of requests to and from those member states which do not have provision in domestic legislation to permit direct transmission of requests within judicial authorities and the police forces of a foreign state.
While I understand the concerns that motivate these amendments, the effect of accepting them would be to prevent Ireland from establishing joint investigation teams with certain member states. The Minister has been nominated as a competent authority to enable us do business with those member states which would not recognise the Garda Commissioner as a competent authority in implementing their legislation to give effect to the framework decision.
I understand the problems that arise from the failure by some member states to accept the Garda Commissioner as the competent authority when requesting information. While there is little that can be done about this, the matter should be raised at European level to see if it could be overcome. In the meantime we must accept the current position and I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Section 2 agreed to.
Sections 3 and 4 agreed to.
I move amendment No. 4:
In page 7, subsection (1), lines 5 to 7, to delete "if the circumstances so require, for such period or periods as may be agreed by the Competent Authority" and substitute "for such periods not exceeding its duration since establishment, or if the circumstances so require, for such periods as may be agreed by the Competent Authority in consultation with the Minister".
The purpose of the amendment is to attempt to provide for a more definite structure in terms of the period during which investigations take place. If they are allowed to proceed without greater clarity in terms of duration, they could become open ended. The Garda Síochána is under serious pressure to fulfil its responsibilities in this and other countries and many of us have called for greater resources to be allocated to it. If these investigations are ongoing for too long a period, they will impose a great strain on resources and involve a huge cost to the State. In view of this, the amendment seeks to provide that investigations should not exceed the duration provided for at their establishment but that where required, the duration may be extended if it is agreed by the competent authority in consultation with the Minister.
As drafted, section 5 provides that a joint investigation team shall be established for a specific purpose and a limited period. Where necessary, that period may be extended for an additional period or periods as agreed by the competent authorities concerned. All countries involved in a joint investigation will have to agree to the extension.
The amendment proposed seeks to allow the period of time for which a joint investigation team operates to be extended while limiting it to "such periods not exceeding its duration since establishment". In other words, a joint investigation team which had been established for four months could only be extended for an additional four month period unless other periods were agreed. This would not make sense. It is not possible at the beginning of a criminal investigation to know exactly how long it will take. The duration of an investigation depends on many factors which are completely outside the control of the persons involved and change as the investigation progresses. As an investigation progresses, the length of time involved may become clearer. Where it becomes evident that more time is needed and it is estimated that, for example, the complexity of the investigation requires an additional period of one year, the written agreement drawn up among the member states involved in establishing the team will have to be amended. It would not make sense to have to amend an agreement three times over the course of the subsequent year when it would have been quite clear at the outset that an additional period of year was required.
The Senator's proposal gives the impression that the Garda Commissioner will allow joint investigations to run endlessly. Where no further benefit is likely to accrue from the continued operation of a joint investigation team, the Commissioner will terminate it in accordance with section 5(7)(b). Where the purpose for which the team was established is achieved in advance of the elapse of the time allocated, the Commissioner will also terminate the team in accordance with section 5(7)(a). If an investigation has not been completed, the time period for which it is to continue will have to be extended. To do this in the limited manner proposed by the Senator would weaken the section. I am sure that other member states involved in the establishment of teams would agree with this conclusion.
It may be of interest to note that on 8 May last the Council of the European Union adopted a Council recommendation on a model agreement for setting up a joint investigation team. The model is intended to permit flexibility and be adapted according to particular circumstances. The agreement does not limit the period of extension in this way either but provides that, "The expiry date stated in this agreement may be extended by mutual consent of the parties". In such a case, the agreement shall be updated.
The amendment also provides that the Minister should be consulted in any agreement to extend the period of time for which a joint investigation team operates. This appears to contradict the Senator's previous amendment to section 2 which sought to remove the provision to allow the Minister's involvement in joint investigation teams. During the debate on Second Stage, the Senator asked:
Amendment No. 4 appears to seek to provide for shared responsibility between the Garda Commissioner and the Minister. As I have explained, the Minister is a competent authority for the purposes of the Bill and can facilitate the transmission and receipt of requests to and from those member states which do not have provision in domestic legislation to permit direct transmission of requests between judicial authorities and the police forces of a foreign state. The Commissioner has responsibility for the establishment, operation and running of joint investigation teams. I emphasise that the Minister has no role to play in the operational aspect of a team's work. For these reasons, I cannot accept the amendment.
My question as to whether the Minister had full trust in the Garda Commissioner was dealt with on section 2. The provisions in section 5 make possible lengthy investigations, many of which may be carried out at the same time. I have no doubt that this will give rise to serious costs. To prevent this happening, I tabled this amendment which seeks to provide that investigations may be extended for one term or further after consultation with the competent authority, in this case the Minister. If we proceed in the way the Minister of State has outlined, we will be in danger of initiating lengthy and costly investigations which might continue indefinitely. We should not leave ourselves open to this in the light of the potential cost to the State.
The deployment of gardaí and the assigning of tasks to them are matters for the Garda Commissioner. As the Senator rightly points out, while we are in about third place in Europe in the ratio of gardaí to the population, there is a perception that there is a scarcity of officers. The Government believes we can use more gardaí. I take the Senator's point in that regard. Gardaí constitute a scarce resource which the Commissioner must deploy to maximum effect. I am certain that any reasonable and responsible Commissioner would not allow joint investigations to drag on for longer than was necessary. As with certain local investigations, it becomes evident if a joint investigation is failing despite the expenditure of time, effort and resources. In the circumstances, I am sure the Commissioner will terminate an investigation having decided that he has better uses for the persons involved.
Provision is made in the legislation which allows the Garda Commissioner to terminate an investigation if it finishes before the period for which it is agreed elapses. The Senator will be aware that we are creating a statutory framework for an arrangement which is in place informally. Joint investigations, as the Senator pointed out on Second Stage, are already a reality. Some of the most successful efforts have lasted for up to two years. When people sit down to draw up the agreement for a joint investigation, they will not provide for a two year duration but as evidence is uncovered, there must be an element of flexibility. The Commissioner will be advised by his staff and act responsibly in that regard.
I point to the model joint investigation team agreement adopted by the European Council which does not mention limiting the duration of an investigation. If one looks through the agreement from start to finish, one will discover that flexibility is its hallmark. It is important not to write in restrictions. We can rely on the Commissioner to act responsibly as the competent authority who will superintend the joint investigations which take place. He will not waste scarce resources.
Amendment, by leave, withdrawn.
I ask that any investigation initiated under the Bill be costed by the competent authority. I have serious concerns about the cost of investigations, some of which, as the Minister of State pointed out, may continue for two years. There is no provision in the Bill to award costs to the Garda for the work which will be carried out, or for the allocation of additional resources of any type. We should cost joint investigation teams prior to establishment. Garda drug operations are fully costed prior to their commencement. I ask that these investigation teams be costed in the same way.
Investigating and detecting crime costs money. In this situation, the competent authority, namely the Garda Commissioner, provides the initiative to set up the joint investigation team. We cannot introduce something into domestic law which compels competent authorities in other countries to calculate costs in advance. The Garda Commissioner will calculate costs and ensure taxpayers' money is not spent foolishly in setting up joint investigations and allowing them to continue indefinitely. We are talking about serious crime. Joint investigations will not be a daily feature of policing. Rather, they will be set up to deal specifically with serious problems which have a trans-national element. The crime will of necessity be serious if the Garda get involved and invite foreign police forces to help them.
These cases will involve crimes such as drug trafficking or the trafficking of human beings, which have a serious impact on quality of life. These types of situations are unusual but are, nonetheless, a feature of the modern criminal scene. It would not be possible successfully to investigate such crimes unless police forces from outside were involved. Therefore, the costs will be well worthwhile and some of those costs will be borne by the other states. That is the mechanism we are seeking to establish here.
The proposed amendment in the name of Senator Terry provides that the establishment of each joint investigation team should be costed prior to establishment. One of the guiding principles for the Garda Síochána, as indicated in the Garda corporate strategy 2000-2004, is to ensure that the Garda carries out its functions in a way which obtains the best value from Garda activities. The Garda policing plan for 2003 lists 12 strategic goals, one of which is managing finance to achieve best value for money. The performance indicators in the plan for this strategic goal include compliance with budget allocation and costing of major functional policing areas, including drugs, traffic and crime enforcement.
This goal is intended to ensure that resources are properly managed and effectively used. With regard to certain drugs operations, which can often involve the deployment of personnel and resources from different Garda divisions, as a matter of good management practice it is not unusual, as the Senator indicated on Second Stage, that they be costed in advance to determine where costs fall and to ensure that such resources are being used effectively. I am informed by the Garda authorities that sanctioning operations which could involve major seizure or arrest are not subject or dependent on such costing. However, it is considered to be good management practice for the reasons illustrated.
If the Senator is suggesting that a provision be made for the establishment of teams to be subject to costing, it is difficult to see how this would work in practice if the implication is that joint teams would not be set up if costs were over a certain limit. Investigations would be set up to deal with serious crime. While good management practice would require effective use of resources and planning for same, it would not make sense to compromise the safety of citizens, perhaps even in life threatening situations, by having a mandatory requirement to go ahead or not on the basis of cost.
Given the nature of a joint investigation, I do not believe it would be possible at the outset to give anything other than an estimate cost of the establishment or operation of the team. The costs will vary depending on issues such as the nature of the investigation, the type of offences to be investigated, the size of the team and the length of the investigation.
As the Senator will be aware, precise costing exercises take time and protracted discussion on the subject between competent authorities would only serve to delay the establishment of a joint investigation team. The primary benefit of a joint investigation team is speed and efficiency. Why introduce provisions which allow team members to bypass existing mutual assistance procedures if we are going to delay the establishment of the team while engaged in discussions on arithmetic with the other competent authorities involved?
As currently drafted, the issue of pay and remuneration for team members is dealt with in section 6 of the Bill, while section 8, which provides for the written agreement drawn up between member states establishing the team, makes specific provision for "the financial arrangements for the team, including arrangements for the payment to its members of remuneration and allowances for expenses, if any, incurred by them, the payment of other expenses that may be incurred by it in the performance of its functions".
With a view to facilitating the establishment of joint investigation teams and to allow, where possible, consistency between member states with drawing up agreements for the establishment of teams, a Council recommendation for a standard model agreement was adopted by the Council of the European Union on 8 May. The model is intended to allow for flexibility and to be adapted according to particular circumstances, i.e. not all of the provisions would necessarily be used in every case. The Council recommendation is an unbinding measure – it is being recommended. I agree that it is appropriate that the agreement to establish a team, rather than legislation itself, address the issue of costs. The Senator might wish to note that the model agreement, in dealing with organisational arrangements, allows for the setting out of costs, which will be subject to the exclusive competence of one or other of the parties to the agreement and to costs which will be shared by the competent authorities establishing the team. It is important to remember that the cost is a shared one between the member states involved. We will never bear the burden of the cost alone.
As I said on Second Stage, I support the Bill. The amendments I have tabled are an attempt to improve it. I fully respect the benefits of having these joint investigation teams and, as the Minister of State said, the cost is worthwhile.
However, I make these points at a time when our Garda force is under serious pressure and we have not provided for the additional resources that are needed to carry out these sometimes lengthy investigations. I am trying to ensure that the Garda Síochána is resourced so it can continue with the work it is required to do. While I am asking for the teams to be costed and for resources, my request is in order that the Garda force should not be depleted. We have requested additional gardaí, yet these extra members have not been forthcoming. If we do not cost these teams, we are doing ourselves and the public no favours by not ensuring that we have the resourced Garda force we need.
I do not disagree with some of the Senator's sentiments. The question of increasing the number of gardaí is a separate one. I agree that we would benefit from having more gardaí. The Government has certain commitments in that regard, which have been the subject of recent controversy. The commitment in the election manifesto and the programme for Government, as I recall it, was to provide 2,000 extra gardaí over the lifetime of the Government. Just 20% of the Government's lifetime has elapsed. Therefore, we still have four years to go. The commitment was subject to resource constraints and let us hope the resources can be made available to increase the number of gardaí.
However, we cannot use the fact that we need more gardaí as an excuse or reason for undermining the operation of joint investigation teams. These will be a rarity and will be set up only in the most extreme circumstances to deal with particularly serious forms of crime which are seriously affecting the State and its people. The Government is accountable to the public and must deal with what it promised in this regard in the programme for Government and its manifestos. We will have to answer to the people in due course.
The setting up of joint investigation teams is a good initiative. It is happening already but we are now putting in place a formal structure. In the operations that have taken place up to now there was flexibility – competent authorities were not forced to cost them in advance. It would not be desirable to do this now. In many cases it would be a wasted exercise and could delay the setting up of a joint investigation team, which could have horrendous consequences.
While I do see the Senator's point, I do not propose to accept the amendment. We must take into consideration the model agreement drawn up by those who are expert in this area and which does not make any provision for this but allows the competent authority setting up the investigation team in each case to deal with the issue of costs. Costs will vary from one investigation to another – in some cases it will be appropriate to deal with costs in advance and come up with a figure, while in others it may not, depending on the complexity and scope of the investigation. While I understand the thrust of the Senator's argument, I am not prepared to put anything in the legislation which might in any way hinder the efficacy of joint investigation teams, whose purpose is to combat serious crime with a transnational flavour.
I will withdraw the amendment, although I am disappointed with the Minister of State's response. Looking at the model of the Garda drugs operations, which are costed, one can see that this could be a worthwhile exercise.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 7, subsection (4), line 19, after "State," to insert "and the Competent Authority is satisfied that the conditions specified in section 4(3) exist,".
Section 5(4), as worded, provides that the State can join an existing joint investigation team without any conditions and, in particular, without any of the conditions that would have to be considered if the State was involved in establishing the team. Section 4(3) sets out the criteria which must be fulfilled before the competent authority can set up a team, yet section 5(4) allows the State to join a team without having to satisfy such criteria.
This is a tricky area. Section 5(4) allows the State to join a joint investigation team which has already been established on such terms and conditions as the Irish competent authority may agree with the competent authorities of the member states involved in the original establishment of the team. In other words, under this section the team has already been set up. The effect of the proposed amendment would be to provide a cross-reference to section 4(3) which deals with the criteria to be taken into consideration by the State when deciding whether to establish a joint investigation team with another member state in the first place.
When I looked at this proposal initially, I though it sounded reasonable but having consulted both the office of the chief parliamentary counsel I find it is not possible to accept the amendment. The sections in question deal with two aspects of joint investigation teams: establishing a team and joining a team. Section 4 deals with the future establishment of a team by the State upon request from another state and lists the criteria that must be taken into consideration in this instance. Section 5(4), however, makes provision for joining a team which has already been established by other member states. In section 4 the Irish competent authority can agree to the establishment of a team where the investigation is to be conducted in the State. In section 5, however, the team has already been established by other member states and public interest considerations, although they may account for the State wishing to join a team, cannot be said to have been the reason for establishing the team.
Similarly, while the fact that part or all of an investigation will be conducted in the State can be taken into account when deciding whether to agree to the establishment of a joint investigation team, this consideration does not count where the State joins a team which has already been set up by other member states and which is evidently operating in another member state. The sections are at odds with each other. They relate to quite different sets of circumstances and I am advised that it would technically not be possible to link them in this way.
Under section 5, if the State joins a joint investigation team, the team will not have been set up with its agreement. The Minister of State mentioned a cross-reference but there is no cross-reference that I can see between the two sections. Even though under each section the State's involvement in the team is under different circumstances, surely there should be similar criteria for joining a team as there would be for setting it up in the first place.
I take the Senator's point. There seem to be no criteria to guide the competent authority of the State in deciding whether to join a joint investigation team which has already been set up. I will ask the chief parliamentary counsel to reconsider this between now and Report Stage.
Amendment, by leave, withdrawn.
Section 5 agreed to.
I move amendment No. 7:
In page 8, subsection (2), between lines 9 and 10, to insert the following new paragraph:
"(a) a bureau officer (within the meaning of the Criminal Assets Bureau Act 1996) who is not a member of the Garda Síochána,".
The purpose of this amendment is to insert a new subsection which would allow for a member of the Criminal Assets Bureau who was not a member of the Garda Síochána to be appointed to a joint investigation team. The reason is obvious: it is quite clear that members of the CAB who are members of the Garda could be included under section 6(1). It seems, therefore, to be an omission not to mention CAB members who are not members of the Garda later in the section.
This amendment would provide for an additional category of person to be appointed as a member of a joint investigation team, namely, a non-Garda CAB officer. However, having examined the amendment, I am a little lost about the purpose behind it. Section 6(2), as drafted, allows the Minister to appoint to a joint investigation team officers of customs and excise, the Revenue Commissioners, any other Government Minister and persons who, in the opinion of the Minister, have experience or expertise relevant to the investigation. I have examined section 8 of the Criminal Assets Bureau Act 1996 and found that the only non-Garda members appointed as bureau officers are officers of the Revenue Commissioners and the Minister for Social Welfare. Both categories have already been covered by section 6(2)(b) of the Bill. The Office of the Revenue Commissioners is specifically named and the reference to "any other Minister of the Government" covers officers of the Minister for Social and Family Affairs.
An officer of the Revenue Commissioners or the Minister for Social and Family Affairs who is also a bureau officer is permitted to join a joint investigation team under the existing provision. I, therefore, cannot see any reason for accepting the amendment. I see the point the Senator is making but it is already catered for.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 8, subsection (2)(c), line 14, after "persons" to insert "being officers of the Minister or of another Minister of the Government".
This amendment seeks to insert a provision to the effect that a person appointed by the Minister would be an officer of the Minister or another Minister of the Government. Without this qualification, anyone could be appointed to a joint investigation team which would be inappropriate. Anyone appointed to an investigating team should be a public official of some kind in order that he or she would be accountable. The section leaves it open for anyone to be appointed to such a team, which would be questionable. I would be interested to hear the Minister of State's comments.
I understand what the Senator is saying. Section 6 deals with membership of a joint team and provides that members of the Garda Síochána, officers of the Customs and Excise, officers of the Revenue Commissioners and officers of any other Minister may be assigned or appointed to a joint team. In addition, section 6(2)(c) allows the Minister to appoint any other person who, in his or her opinion, has experience or expertise relevant to the investigation. The provision is broad and has been widely drafted in order to ensure that whatever additional expertise or advice is needed by a team is available. The Minister has the power to look beyond the gardaí and the Civil Service in order to provide this experience or advice.
The proposed amendment seeks to qualify this provision by referring instead to one or more persons being officers of the Minister or of another Minister. This, in effect, merely repeats the provision in section 6(2)(b), which already provides for the appointment of any officer of the Revenue Commissioners, the Minister or any other Minister. It narrows the scope of the provision in that it restricts the pool of expertise to officers of Government Departments or, as Senator Tuffy said, a person in a public position.
This approach is not in keeping with the spirit of the framework decision, which makes specific provision for the inclusion of additional expertise from appropriate persons – be it fingerprint experts, systems analysts, computer programmers, accountants, researchers or statisticians – who are not representative of their competent authorities, to take part in the activities of the team. I refer, in other words, to persons who are not State officials. While I am aware that in the majority of cases the necessary expertise will be found among members of the Garda Síochána and officers of Government Ministers, I must consider the fact that a joint investigation team may be established, which, in certain circumstances, will require something extra. It is that for which I am providing.
I still have concerns about who might be appointed under this provision. Freelance operators could be appointed. The scope of the provision is broad. How would a person appointed, who is not a public official, be accountable? What kind of person is it envisaged will be appointed? If a psychologist was to be appointed – bearing in mind that there are psychologists employed as public officials – why would there be a need to appoint a person who is not a public official?
The public service, excellent though it may be, is not the sole repository of wisdom, experience and expertise. In complex fraud investigations, we may need to bring in representatives of some of the top accountancy firms. In cases of trafficking of children for sexual or other reasons, we may have to bring in representatives of the authorities in other countries, such as Albania, where such an offence is a phenomenon.
In signing up to the framework decision, member states undertook to put into law not only the letter but the spirit of the agreement. A cursory glance at it would quickly demonstrate that we should not limit ourselves. It is envisaged that members of the Garda Síochána and the customs authorities – persons who are State officials – and officers of various Government Departments will be sufficient in the vast majority of cases. Occasionally, however, in order to make the difference between success and failure, we may need to appoint a person who is not in the public sector. It will not be a question of appointing party political supporters.
Under new legislation, the Garda Commissioner will be the accounting officer for the gardaí and he will have to account for expenditure under the Garda budget. I am sure that if the Commissioner appointed a person who was not useful to such an investigation or a person who was a friend or whatever, he would have serious questions to answer before the Committee of Public Accounts. While I understand the Senator's concern, I consider the section is safe in this regard.
Amendment, by leave, withdrawn.
Section 6 agreed to.
Sections 7 to 9, inclusive, agreed to.
I move amendment No. 9:
In page 13, between lines 42 and 43, to insert the following new subsection:
"(2) The disciplinary regulations for the time being in force applying to members of the Garda Síochána shall apply to service abroad by a member under section 3 of the Garda Síochána Act 1989 as amended by subsection (1).".
Having dealt with the Minister of State on the Garda Síochána (Police Co-Operation) Bill – which provides for co-operation between the Garda Síochána and the Police Service of Northern Ireland and which has a similar provision – my party considers that a similar provision would be appropriate in this legislation. I raised this matter on Second Stage. There are references to criminal liability, civil liability and the status of the member of the Garda Síochána concerned in section 10. If, however, a member of the Garda Síochána was involved in some activity that required disciplinary measures, what would happen in such a situation should be explicitly outlined in the Bill. I would interested to hear the Minister of State's comments.
Section 10 amends the Garda Síochána Act 1989 by adding joint investigation teams to the list of overseas organisations or units with which a member of the Garda Síochána may serve. The proposed amendment seeks to further amend that Act by providing that it should explicitly state that the Garda disciplinary regulations apply to gardaí referred to in section 3 of the Garda Síochána Act 1989, that is, gardaí serving overseas on United Nations missions, as liaison officers with Europol or as members of a joint investigation team.
Existing Garda disciplinary procedures already apply to Garda members outside this jurisdiction. Disciplinary powers vested in the Garda authorities are not bound by geographical limits. An explicit statement in the legislation to the effect that disciplinary regulations apply in these instances could give rise to the suggestion that they might not apply in other instances. Such an implication is undesirable. Gardaí travel abroad and are stationed abroad from time to time for purposes other than those enumerated in section 3 of the 1989 Act and they are all subject disciplinary regulations at all times. This amendment is unnecessary in that it seeks to make provision for something that already exists.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 13, between lines 42 and 43, to insert the following new subsection:
"(3) Where an act is alleged against a seconded member operating in the State which would, if committed by a member, constitute a breach of discipline, the act shall be investigated by the Commissioner who shall report thereon to the competent authority concerned."
We tabled this amendment because we consider there to be a lack of a particular provision in the legislation. Such a provision is included in the Garda Síochána (Police Co-Operation) Bill. A provision on the disciplinary measures which may be taken against a seconded member operating in the State should be included. At the very least, a provision on the investigation of such an offence should be included. The latter could then be forwarded to the member state in the same way that a similar provision would apply in such circumstances to a member of Police Service of Northern Ireland seconded here. I would be interested to hear the Minister of State's comments.
I take the point of the analogy the Senator seeks to make between the Bill and the Garda Síochána (Police Co-Operation) Bill. However, the fundamental difference between the two is that under the Garda Síochána (Police Co-Operation) Bill, members of the Police Service of Northern Ireland seconded here will, to all intents and purposes, become members of the Garda Síochána. They will be transferred here for a number of years, up to a maximum of three, and they will become members of the Garda Síochána and be subject to the same disciplinary provisions as members of the Garda Síochána operating here.
It is very different in the case of a joint investigation team. These people come to the country temporarily to assist in an investigation that mainly takes place here. I understand that, under the Garda Síochána (Police Co-Operation) Bill, for example, if a member of the Police Service of Northern Ireland is seconded to the Garda Síochána and is a member of that force, he or she can conduct an investigation in his or her own right. That will not be the case with this legislation. Local gardaí will remain in charge. Seconded members will not be allowed, under the provisions of this legislation, to conduct an investigation. They will merely be present in a support or advisory capacity.
The amendment deals with breaches of discipline concerning seconded members operating in the State, that is, team members from one or other of the member states involved in establishing the team operating in the State. It provides that, where such a breach of discipline takes place, the matter will be investigated by the Garda Commissioner. The amendment is similar to section 6 of the Garda Síochána (Police Co-Operation) Bill, which provides for procedures to deal with breaches of discipline by a member of the PSNI who is seconded to the Garda Síochána.
There is, however, a significant difference between members of the PSNI seconded to the Garda Síochána and members from other EU states seconded to joint teams operating in the State. A member of the PSNI assigned to the Garda Síochána becomes a member of the force and is treated as such in all respects, whereas a member of a foreign police force seconded to a joint team operating in the State remains in the employment of the foreign state which appointed him or her.
It was never envisaged that seconded members, whether police or customs officers, would operate under the direction and control of the Garda Commissioner in the same sense as members of the Garda Síochána. While they will be under the control and general superintendence of the Commissioner for the duration of the joint investigation, they will continue to be subject to their home authorities' disciplinary rules. If an alternative to this was to be contemplated, the agreement of all EU member states to a protocol on discipline would have to be secured.
The issue of breach of discipline was considered in the context of the drafting of the Bill. It was decided that, if seconded members can come from the 14 – soon to be 24 – member states and be subject to 14 – again, soon to be 24 – different sets of national legislation, it would be unwise, if not impossible, to include in primary legislation a provision that would attempt to address this matter in all circumstances. While in some instances it may be appropriate for the Commissioner to report on the behaviour of a non-national who is not in his permanent employment, in other situations it would not be the correct way to proceed. We must always bear in mind that the ultimate sanction – dismissal – is not in the power of the Commissioner where members of a foreign police force are concerned.
It is for this reason that we decided that this matter should be dealt with as and when required. To that end, section 8, which provides for the written agreement to establish a joint investigation team, includes a catch-all provision which allows the competent authorities involved in drawing up the agreement to include "such other terms and conditions" as are agreed by the competent authorities concerned. This means, in effect, that, where it is considered necessary, a tailor-made provision specific to the investigation and the member states involved can be agreed. The issue of breach of discipline will be dealt with on a case by case or investigation by investigation basis. This is the most satisfactory way to approach the matter for the reasons I have outlined.
Despite what the Minister of State said, there is a gap in the legislation. He pointed out the differences between this legislation and the Garda Síochána (Police Co-Operation) Bill. In respect of criminal liability, however, section 12 of the Bill before us states that "seconded members of the team shall . in the case of such seconded members who are members of a police force of another Member State, be regarded as members of the Garda Síochána." That would conflict with what the Minister of State said.
The important point is that no grievance procedure is in place for a person who is affected by or has a complaint in respect of a foreign police force member seconded to this State. That person cannot have his or her complaint investigated. That is a gap in the legislation.
There will be a grievance because seconded members will be subject to disciplinary procedures. In the debate on the previous amendment it was seen that geography is no limitation to the Commissioner's authority where discipline of members of the Garda Síochána is concerned. The same applies to other police forces, especially the other 24 with which we will be co-operating.
Criminal liability is different. We have been advised that a separate protocol would be needed to which all member states would have to sign up if we were to introduce what Senator Tuffy – logical and correct as it may be – is seeking to introduce. In respect of criminal liability, the reason behind section 12(a), which states that "in the case of such seconded members who are members of a police force of another Member State, [they may] be regarded as members of the Garda Síochána", is that sometimes there is a different category of punishment for offences committed against a member of the Garda Síochána as opposed to a member of the public. I do not know if that is logical, but it is part of criminal law. It was regarded as fair, right, just and consistent to provide similar sanctions for offences committed against members of a joint investigation team who happen to come from another country.
I am disappointed that my amendment has been ruled out of order. The Bill does not provide any additional resources to the Garda to carry out the heavy burden of work its provision will impose upon the service. The legislation is lacking in this regard.
Question put and agreed to.
Sections 16 and 17 agreed to.
Schedule agreed to.
Title agreed to.
Bill reported without amendment.
Report Stage ordered for Thursday, 22 May 2003.