Thursday, 9 December 2004
Garda Síochána Bill 2004: Committee Stage (Resumed).
The purpose of the amendment is to introduce a more comprehensive series of paragraphs explaining precisely what is involved in the setting up of the policing committees. There was general agreement yesterday, especially from Senator Jim Walsh, on the proposed new paragraphs (a) to (g). Much of the debate focused on whether the wording of paragraph (a) would include town councils. It is my opinion that it would; it was not the intention to exclude them.
It is necessary to state more clearly what will be the exact provisions. From speaking to other Members I gather they also feel that is necessary. I am open to persuasion as to whether this is the optimal wording or if it could be expanded or improved upon. I hope the Minister will take on board this proposal.
Yesterday's debate revolved around whether paragraph (a) excluded town councils and, as Senator Cummins stated, it is certainly the intention to include them. The other main focus of discussion was whether a joint policing committee should have as its core base the town and area around it, including the area committee, or whether it should be done on a county-wide basis. That matter can be examined and worked out in conjunction with local authorities.
My interpretation of the amendment is that a great deal of the consultation and liaison activity that will take place at the level of the town or area committee will be done at sub-committee level rather than at joint policing committee level. In order to work effectively, committees will require resources in terms of staff. Perhaps the Minister will examine this matter. The joint policing committee may also develop initiatives such as a local advertising campaign, publication or otherwise. Good initiatives may evolve from these committees that would require financial resources and, given the limitations on town councils to provide either staffing or financial resources, it would be preferable for funding to come from a county council, some of which have budgets in excess of €100 million. From that point of view, I find the proposition that policing committees would be based on city or county councils an attractive one. However, I accept that much of the work and dialogue at local level would be done in sub-committees.
I gave an example yesterday of County Wexford which is divided into four local authority electoral areas with a significant town in each area. I would see these as the focal point for much of the dialogue between the Garda and the council which could be done at sub-committee level. This matter needs to be examined and discussion should take place with local authorities to see if there is an advantage in focusing on the larger unit which has more resources.
Unfortunately I was unable to be present yesterday because I was elsewhere. However, I have had an opportunity to read through the proceedings of the House so I have an idea where people were coming from in yesterday's debate. I thank Senator Jim Walsh for his very useful proposals which I will study carefully.
I emphasise to the House that I do not want to be completely prescriptive, but that I took from the Second Stage debate in this House that it was local authorities, as such, that we were concerned with, and that it was not to be done on a county development board basis. I understood that a direct engagement was preferred which reflected the importance of the mandate local authority members have, and that their participation in this committee process would be a central part of their role as local representatives rather than a clip-on addition to it.
I do not wish to be overly prescriptive as to how these committees should be formed. For instance, in my own area of Dublin, inner city forums are already in existence and we have area committees of Dublin City Council. It may make sense in one city to have an area committee as a sub-committee of one of these bodies but in another city one may have to put three areas together to do it. I will not try and think up a national model which has to be followed by everybody in every circumstance. I want this to be flexible and enabling but I do not want to be so vague as to leave it in the position that nobody does anything about it either. A balance needs to be struck.
I am grateful to the Members of this House for their considered contribution on this matter. I will bear it in mind and come forward with a response on Report Stage.
I thank the Minister and the Minister of State, Deputy Brian Lenihan, who was here yesterday and gave a very good account of himself which was very much in keeping with the principle of the Bill. I compliment the Minister on bringing area committees into being. It is a most innovative idea. I note what the Minister said, that he wants to make them work well and he referred to his own area in that regard. I have great confidence in this proposed development.
Yesterday, I made the point in regard to the section that Members of the Seanad should be included, in addition to Members of the Dáil or that a generic reference should be made to Oireachtas Members. It could be said that Senators have constituencies. In the areas in which Senators live it would be useful to have their input as well. Involvement at local level is of great assistance to us at national level when it comes to discussing issues of security and the Garda Síochána. I reiterate my request to the Minister that this would become a reality.
I am delighted the Minister tabled amendment No. 46 and I compliment him on his approach. I have experience of being before the House as a Minister of State with responsibility for trade and I welcome the fact that the Minister is open to the merits of Opposition amendments, which helps to strengthen legislation. I welcome the proposed deletion of the reference to county development boards as it would have been a restrictive approach which would not have given local authority representatives the opportunity of serving on the policing committees. Elected local authority members should have a pre-eminent position in regard to the new policing committees. I thank the Minister for including them and doing such a good job in putting forward the idea in the Bill.
We appreciate that the Minister has said he will revert to us on Report Stage. We discussed this issue at length yesterday and again this morning. We hope an amendment will be tabled on Report Stage which reflects our debate on amendment No. 45 in particular.
I move amendment No. 48:
In page 23, between lines 38 and 39, to insert the following new subsection:
"(3) A member of the Garda Síochána below the rank of Superintendent shall not be eligible to attend a joint policing committee meeting as the representative on behalf of the Garda Síochána.".
We feel there is no point in local gardaí or sergeants representing the Garda at these meetings. People want gardaí who can give a commitment on which they can deliver. The forum will become meaningless if the chief superintendent merely sends a sergeant to carry messages to and from the meeting about what is required in a community. We need a commitment from the highest levels of the Garda on these committees. By all means, the community garda can and should be present at these meetings with the chief superintendent but there is a need for a high-ranking garda to be present.
Amendment No. 49 seeks to ensure that the meetings of the joint policing committee are predominantly held in public. There will be occasions when a private meeting is required, a scenario which is also provided for by this amendment. However, by and large, the committee should meet in public, although we acknowledge that situations in communities and estates may require that they be held in private on some occasions. I hope the Minister accepts these amendments.
I see the point to which Senator Cummins refers in amendment No. 48, which is that if representatives of senior Garda management are not part of the joint policing committees, they will not be as effective as they might be, with which sentiment I concur. However, I do not agree that someone below the rank of superintendent should not be eligible to attend. My experience is that a superintendent who brought a sergeant with him or her to a meeting, was less au fait with some of the questions than was the sergeant, which was a useful exercise. I am not sure we should be too prescriptive in this regard. However, if a sergeant or a member of the Garda was turning up at all the joint policing committees without an inspector, superintendent or otherwise, it would dilute their effect. The issue should be examined further.
In order to earn public support, there is a need for some of the meetings to be held in public. Equally, however, there will also be a value in holding such meetings in private. Yesterday, I instanced an occasion on which we had a meeting between a superintendent and sergeant regarding a local disadvantaged area with a drug problem. That meeting could not have been held in public because it would have put the attendants at certain risk. There will be issues which will have to be discussed in private in order to give the meetings full effect.
Many councillors will want to raise issues or, without naming people, might identify them. It is important that such a process is allowed and I am sure this provision will be part of the guidelines. We will have to cater for all arrangements. I would not like anything to be done which would restrict the effective operation of the joint policing committees.
We do not propose that various officers are excluded from the forum. However, it is important that on the committees which are established, there is a direct line of responsibility to the chief officer who is either the superintendent or chief superintendent. For example, an inspector is in charge of the community divisions, which are very important in my area. The inspector of the community division would have to be at these meetings because much of the work involves community policing, of which we are all advocates.
However, the problem traditionally has been that when a new officer or recruit comes into a station he or she invariably ends up as a community garda for a number of estates. Over the course of two years, he or she will pick up huge amounts of information about the children who are causing difficulties and so on but then he or she is gone. The problem is that community policing is not seen as an attractive line of promotion within the force in the same way as detective work or other aspects of the force. We must work hard to emphasise that community policing is absolutely essential in urban Ireland and the work done is tremendous.
Two weeks ago, I attended a social function for a youth organisation in my own constituency, the money for which was raised by the community division of the Garda Síochána. Members of the division were present on the night helping to run the event, all of which represents unpaid work done out of hours. They are a tremendous example to the force. We underestimate the importance of community policing in this area.
The amendment does not propose to exclude officers from the committees but rather that there must be a line of responsibility to the top, which is, in effect, the chief superintendent. I agree with Senator Jim Walsh in regard to whether these meetings should be public or private. Of course, most of the meetings will be private because they will deal with problems on estates, naming people and so on. However, there will be occasions on which a public meeting is very important. We have often seen reports in local newspapers about ad hoc public meetings with an attached lynch mob, to which no members of the force are invited. We must prevent this type of occurrence. We should not underestimate the importance of a public meeting in order that the public can see what is happening, even in a general way.
The requirement of the attendance of a superintendent is commendable but, in many cases, he or she may not be available and have to delegate to an inspector, for instance. This provision is better suited to regulations rather than legislation. It is far better to have such minute details and requirements in regard to attendance dealt with in such a manner.
It is also important that, where a superintendent or an inspector attends, the local sergeant and gardaí would also be in attendance, if possible. It is worthwhile. Is so far as meetings in public and private are concerned, it is again a matter for regulations.
Oireachtas Members enjoy absolute privilege, which is extremely useful. Many Members have brought forward issues in regard to crime in their areas and the only place in which they could name names with total privilege is in Leinster House. The danger is that if a meeting is held in public and an elected representative makes comments about people distributing drugs in estates in Dublin or anywhere else, if a person, family, group or gang, such as the Westies, is identified no such privilege would apply.
This is a very big step, with which I accept the Minister will have great difficulty. There is a certain limited privilege for councillors, very few of whom have been sued. It should be borne in mind that there is an advantage in meetings being held in private because the question would then be whether people could be slandered in private or others sued for naming names. It would be innovative if the Minister could consider the constitutional requirement in regard to privilege. It would be a risky business to extend full privilege to those meetings because people could be named, shamed and abused and it could represent a very dangerous situation. Will the Minister examine the possibilities in this regard? I call for the safeguard of limited privilege for elected representatives who are carrying out their duties in a conscientious manner.
I will deal with that last point. Members of the Houses of the Oireachtas have absolute privilege as a matter of constitutional law and cannot be impugned in the courts for what they say in either House. There are strict controls over how that privilege is managed and Members cannot lay waste all around them because they are feeling malicious and want to get even with a few people. We must bear in mind that in order to widen the notion of absolute privilege one must ensure that it is constitutionally possible to do so and put in place controls and counter measures to ensure it is not abused.
Local authority members would have qualified privilege when making statements at local authority meetings as long as they speak in good faith, in other words, that they believe what they say is true, they are being relevant to the topic at issue and their utterance is part of their duty. However, if they speak maliciously and decide to smear somebody's character or make an absolutely reckless remark which they could not reasonably believe to be true, they lose that qualified privilege. We must be reasonably carefully about what we do. Whereas it is one thing for everybody to know that a named drug pusher is in an area, it would be a different matter if somebody chose to abuse his or her public office to smear a person at a meeting and, to use Lyndon Johnson's great phrase "Let's see him deny it". That is always possible in politics. A balance must be struck.
I fully appreciate the spirit of amendment No. 48 tabled in the names of Senators Cummins and Brian Hayes which is that an officer of adequate seniority should normally attend a joint policing committee meeting. However, if one states it must be a member of the force with the rank of superintendent, one may find that the meeting will collapse if the superintendent catches the flu and cannot attend. We must be reasonable.
In the case of area committee or sub-committee meetings, it may be perfectly reasonable that the local inspector will attend rather than the superintendent. I fully appreciate that Members were not trying to exclude ranks of the Garda Síochána, but the local sergeant may be present for a discussion on anti-social behaviour by a small minority of the community in a particular estate.
Senator Leyden is correct when he states this is a matter best dealt with by guidelines. I imagine the guidelines will contain a term to the effect that it will be the duty of the local chief superintendent to ensure that gardaí of adequate seniority to deal with the business in hand will be present on the occasion. That is probably the best way to deal with it.
In response to whether such meetings are public or private, it may be similar to a joint committee meeting of the Oireachtas in that the meeting may deal with some issues in public and revert to private session and exclude the public because of the way the debate on an issue is going. Flexibility is the key. I think that should be dealt with in guidelines, if necessary, rather than in prescriptive legislation.
I am grateful to the Senators for tabling the amendments and I think Members would probably agree, on reflection, that the right way to deal with the important issues raised in the amendments is to deal with them in the context of guidelines rather than rigid prescriptive law which might trip the operation of these committees.
In some cases the chair of the committee may decide that if the discussion continues on certain lines, he must exclude the public because he or she does not wish to have a person's reputation discussed in public. I do not want a situation to arise where a majority can trample down somebody's rights and force the committee down the wrong line. For example, if 51% of the members decided to use the occasion to brutalise the reputation of an individual, the chair should have an overriding duty to remember that certain matters should not be dealt with in public. I do not want a situation where a chairman can force his or her will on a majority and exclude the press. We need more flexibility. I do not know the procedure in the joint committees of the Oireachtas to arrive at the decision to hold the meeting in public or private session, but it is probably the majority view.
I will probably get myself into trouble with my party for raising this question. When I considered this section, my first question was why Members of the Seanad were excluded, but that has been discussed and I will not raise it now. However, Members of the Dáil will be on the committee and that means that outside a 25 mile radius of Dublin, when Members of the Dáil will be elsewhere, these committees will be able to meet only on Monday or Friday nights. That practice had developed in local authorities when Members of the Oireachtas held the dual mandate.
The logistics of organising a meeting such as this are bad enough without having Members of the Oireachtas say that Monday night is the only suitable time. I think this is a backward step from the decision to let local matters be dealt with by the local representatives. I am certain that if my party spokesman in the Dáil hears what I have just said, I will be in big trouble. The Minister can tell him and that will liven up the debate in the Dáil.
Arrangements can be made to meet at appropriate times and that should not be dictated by whether Members of the Dáil are available. If a Deputy wishes to attend the meeting, he or she has the right to do so. It is very important that Members of the Oireachtas would have the opportunity to attend those meetings, where practicable.
Section 31 resonates with another section 31, which was deleted from the legislation by a previous Government. In this case, I think we should allow the provision for Oireachtas Members to stand.
I take quite seriously the point made by Senator Ryan. If it were to be read into this section that these meetings could only take place on a Monday or Friday because Members of the Oireachtas would be liable to attend the Oireachtas on Tuesdays, Wednesdays and Thursdays, that would be somewhat retrograde and would be a constraint. My intention — maybe I have not achieved it in the manner in which this is phrased — was to bring about a situation where they would have the right to attend and be heard, not that they would be ex officio full voting members. If they are full voting members then they will have to be accommodated. Viewing it from my temporary perspective on the matter from the Government side of the equation, an Opposition Deputy is free to drive down to Kilkenny or wherever——
I agree. I do not think we should be too idealistic about this. I will consider that point again. It is not that I want local committees to be dominated by public representatives who are Oireachtas Members; I did not want the end of the dual mandate to mean that nobody in these Houses would ever have experience of these committees or have any input in them. I will consider the matter further between now and Report Stage.
I move amendment No. 50:
In page 24, subsection (2), between lines 14 and 15, to insert the following paragraph:
"(b) monitor the performance and effectiveness of the Garda Síochána in carrying out its functions in the administrative area,".
This amendment proposes to make clear that one of the functions of the policing committee should be to monitor the effectiveness of the Garda Síochána within a local area and to ensure that it is discharging its functions as best it can. This is fundamental to the effectiveness of any such committee.
Amendment No. 51 proposes that in addition to its own meetings the policing committee would organise public meetings in which issues of particular interest are discussed by everybody and where the public is not just an observer. Such meetings are very beneficial even with gardaí going out into the communities as currently happens. It is very effective in that the public see a Garda presence and see gardaí are taking an interest in their communities. This amendment is to ensure that the Garda would be empowered to organise meetings with the community on issues of particular interest.
Amendment No. 51 makes an important proposal. Frequently there will be calls for public meetings on anti-social activity and problems with crime. Very often those calls for meetings are made by political parties or residents' organisations. It would be a very useful function if the police committees could organise a public meeting on a topic. People would be more likely to come to such a meeting than they would to a meeting organised by a political party or by some ginger group within a community that has a particular bent against the police or the like.
In Northern Ireland a local partnership policing board held a public meeting in a certain area which attracted media coverage. The meeting allowed the community to vent its views on a particular issue. I acknowledge that sectarian issues exist in Northern Ireland which thankfully do not arise in this jurisdiction. However it was useful that the meeting was organised by the local policing board and I propose the same function should be given to these committees. A meeting organised by a political party or some ginger group does not have the same significance, to my mind, as a meeting organised by these new committees. It would be a useful, additional power to give the committees.
I find myself persuaded by amendment No. 51. It would be useful for these committees to have a function as organising committees. As the Senators who proposed this amendment have said, if a local political party convenes a meeting on a particular issue, one tends to wonder whether one should attend or not. Should I participate in this meeting or because I am not in that party hope that the meeting is a failure? There is an element of competitive jealousy on these occasions. The proposal is a good idea and I am disposed to accept that amendment.
I am opposed to amendment No. 50 and I will explain my reasons. It was always my intention that these committees should be partnerships between the Garda and the local authority members. No more than that the Garda is supposed to monitor the local authority as one of the functions, I do not want these committees to be an occasion for demagoguery where people just stand up and point accusing fingers at the Garda about various matters. It is not a function of the local authority, as such, to have a statutory monitoring of the Garda Síochána in the administrative area of the local authority. The local authority is free to have a debate if it wishes and I have no problem with that but it is not one of its statutory functions. It would produce an imbalance in the relationship. I have constantly stressed that this is a two-way street. The Garda should be able to say to the local authority that it built such and such an estate but there are no pitches for the kids to play, no indoor hall, nothing. It should be able to point out that open spaces and communal stairways have become fouled and damaged and that the local authority has responsibility in these matters. That is just as much a legitimate part of the discussion at one of these committees as the more brash councillors pointing fingers at the Garda and saying it is nowhere to be seen or whatever.
I want the relationship to be one of parity of esteem between the two constituent elements of these committees, the gardaí who attend them and the local authority public representatives who are present. My reasoning is that if they are an inquest format or if they are an accusatory tribunal where the local authority members claim that under statute one of their functions is to monitor Garda performance, then it changes the character of the committee completely. The gardaí will be put on the defensive and that is not the relationship I wish to achieve.
In rejecting that amendment I would draw to the Members' attention to the proposed section 32(2) which states:
(a) keep under review——
(i) the levels and patterns of crime, disorder and anti-social behaviour in that area (including the patterns and levels of misuse of alcohol and drugs), and
(ii) the factors underlying and contributing to the levels of crime, disorder and anti-social behaviour in the area,
(b) advise the local authority concerned and the Garda Síochána on how they might best exercise their functions having regard to the need to do everything feasible to improve the safety and quality of life and to prevent crime, disorder and anti-social behaviour within the area,
That gives the committees a broad remit to do all of these things but it does not do it in the form of, "We will tell you where you are going wrong," mode which would be suggested by Senator Cummins's phraseology. It would introduce an imbalance into the equation which I am anxious to avoid. Section 32(2)(b) shows that it is balanced between the local authority and the Garda Síochána in that both of them share equally in this duty to uphold the law in their area, to improve the quality of life and to prevent anti-social behaviour. I have always striven to make it very clear that this is a partnership and not something in which the Garda Síochána is the accused party; gardaí should not be cast as defendants or people who must justify themselves while local authority members wave the statute at them and say, "We are here to monitor you." If that relationship creeps into the transaction, the policing committees will be less effective. While I propose to accept amendment No. 51, I will not accept amendment No. 50. I ask Senators to accept my position.
I listened attentively to the Minister and agree with much of what he said on amendment No. 50. In view of his explanation that facilities are already in place, I will withdraw the amendment. I am glad he will accept amendment No. 51. It is important that public meetings may be arranged at which people will have an opportunity to discuss issues arising in their estates and areas. As the Minister stated, it has been left to political parties in many instances to organise such meetings and it would be preferable if joint policing committees were to do so.
I made a reasonable half compliment to prove I am in reasonable humour. I will not pretend I am an authority on the Bill because I am substituting for Senator Tuffy. The purpose of the amendment is to delete section 33(2). I invite Senators to try to figure out the meaning or purpose of the subsection. This is the reason we propose its deletion. It reads:
Subsection (1) is not to be taken to confer on any person a right in law that the person would not otherwise have to require a local authority to take any steps referred to in that subsection or to seek damages for a local authority's failure to take such steps.
The lawyer who advises the Labour Party on these matters, while not quite as eminent as the Minister, has pointed out that this subsection is a virtually meaningless collection of words. I will listen to the Minister's response with interest but meaningless paragraphs have no function in legislation. This subsection does not appear to have meaning.
To put the matter in context, where a statute creates a duty one must look at its terms to decide whether failure to comply with the duty becomes actionable at the instance of a person who is aggrieved or suffers as a result. This is a conundrum about which law students learn at great length regarding tort. While there is a tort of breach of statutory duty, it only exists where the courts interpret the statute which creates the duty as one which intended that individuals who suffered as a result of a breach of the duty were to have an individual cause of action against the person in breach of the duty. I hope that is clear.
When one creates a statutory duty, as in the case of section 33(1), one must ask what are the consequences of a breach of the duty in question. One must make clear to the courts that either there is to be a cause of action vested in individuals who are at a loss as a consequence of that breach or there is not. Subsection (2) is designed to bring about such clarity. It provides that it is a duty of a local authority to take such steps as may be practicable to assist in the reduction of crime, disorder and anti-social behaviour within its area of responsibility. This is an important point of local government law because local authorities have functions and duties conferred on them. If a local authority, for instance, wants to spend money, the city or county manager will be the first to point out if the purpose for which the money is being spent is not proper because the authority has no function in the area inquestion.
Crime and anti-social behaviour reduction will, under the legislation, be an area in which local authorities have a positive duty to act and discharge its duty in that regard. It is not meaningless to confer a duty which is not actionable at the instance of an individual. It is essential for some purposes that it should be intra vires a local authority to do things which otherwise might be regarded as ultra vires a local authority.
What happens if a local authority is in breach of this duty? Does one vest in the Circuit, District or High Court a right to compensate somebody who is at a loss as a result of a failure to carry out the duty? For instance, if subsection (1) was interpreted as requiring a local authority to have adequate street lighting in a crime infested estate and the lights do not function, can someone whose car has been vandalised three times while the lights were not functioning claim damages for the state of the car? Alternatively, where powers are available to exclude troublesome neighbours from social housing of which one is the landlord and one fails to do so, can a person whose house has been wrecked twice by his or her neighbours demand that the landlord pay the bill? These kinds of issues could arise with the result that people go before a judge, indicating a person has a duty and demand compensation.
Subsection (2) makes it clear that the question of compensation does not arise unless it would already arise, that is, the new duty does not confer an extra right on individuals to sue for damages. In addition, persons are not conferred the right to injunct a local authority to do something or refrain from doing something based on the duty in subsection (1). If one were to provide for such a right, the local Circuit Court judge would, for instance, be in a position to order a local authority to erect four more lights in a particular area because it is clear that criminality arises from a failure to do so. One would have judge-driven local politics if one were to give the right to the courts to hand out injunctions based on that general duty.
These are the reasons for the inclusion of subsection (2) which reads:
Subsection (1) is not to be taken to confer on any person a right in law that the person would not otherwise have to require a local authority to take any steps referred to in that subsection [this is the injunctive relief] or to seek damages for a local authority's failure to take such steps [this is the damages relief].
The subsection, therefore, excludes injunctive and damages relief from a person who claims a breach of a general duty. If this provision were not included, a clever lawyer could seek to persuade a court that a person. whose home had been vandalised 15 times in circumstances in which it was reasonable to believe that tenants could have been evicted for anti-social behaviour but were not, could sue the local authority for the cost of bills incurred as a result. In extreme cases of this nature, my sympathy would go to the person in question, as would a judge's. However, we do not want to create a new head of compensation because it is hard enough to run a local authority without constantly being told by the law agent that certain measures cannot be pursued because the authority faces being sued. For example, advice could be given that a new park cannot be built because all available money must be spent on street lighting on the grounds that ten solicitor's letters have been received threatening the authority with an action. That is the purpose of the subsection.
I worked with a manager who used the phrase "let the dog see the rabbit". I am inclined to say the same to Senator Ryan. We are talking about a public body. Section 1 gives functions and responsibility to the local authority. Section 2 removes the right of a third party to claim this as a tort if there is a breach. The body's directors are elected democratically by people whose responsibility is to ensure the local authority's functions are carried out properly and effectively. They should give responsibility for the local authority to the manager, rather than pass it on to a third party to do so through the courts. It protects the accountability of elected members.
One might ask what practical effect such a provision will have. It means whichever function is being performed by the local authority, whether by management or elected members, must be done in a manner which has regard to the reduction of criminality. If planning permission is refused because a local authority believes it would increase criminality in the area, that becomes a criterion to be imported into the discharge of its functions. It can refuse to grant a licence or permit by reference to this criterion. It is not a toothless tiger. It is a public law duty without a private law remedy, and there are many such examples on the Statute Book. They do not mean an individual can sue or seek an injunction to force a local authority to do something. However, they could have other functions, such as allowing a person, in extreme circumstances, to quash a decision by a local authority on the basis that it flagrantly did not have regard to one of its functions.
The provision is not a toothless tiger, even in the legal sphere. It strengthens the hand of local authority members and managers when considering criminality, public order and anti-social behaviour aspects of their work. If a local authority is vested with the right to say yes or no to a public concert in its park, it can look at this and decide it will probably give rise to anti-social behaviour or disorder and refuse permission on those grounds. The concert promoter cannot say it is an unreasonable decision, because there is a clear statutory criterion imported into the discharge of the local authority's function.
I move amendment No. 55:
In page 25, subsection (3), lines 39 to 41, to delete paragraph (a).
I know a good deal about this matter. Legislation dealing with the relationship between public bodies and authorities and Oireachtas committees has come through this House. With one or two exceptions, where we persuaded the Minister to drop the provision, the legislation has stated, as it does here, that the Garda Commissioner, "shall not question or express an opinion on the merits of any policy of the Government or Minister of the Government or on the merits of the objectives of such policy".
While we do not want party political speeches from senior public figures, this imposes an enormous constraint. A Garda Commissioner could interpret the wording whichever way he wishes. Other exclusions in terms of the security of the State are perfectly reasonable. However, not to allow the commissioner question or express an opinion on the merits of any policy of the Government implies that he or she could express opinions on the merits of the Opposition's policy. That is hardly fair.
The Minister may think it is a great idea for the Garda Commissioner to have a go at Senator Cummins, Deputy Costello and others. It seems strange that it only refers to Government policy. I understand the difference between Government and Opposition policy. Nevertheless, this provision is unfair and unnecessary. Most senior figures in the public sector and bodies can draw a sensible line between reasonable comment and head-to-head conflict with the Government.
It is a great protection for a Garda Commissioner when he goes before an Oireachtas committee, perhaps the Committee of Public Accounts. When confronted with a question as to whether the policy of his Minister is right or wrong, he is in a position to say he is not entitled to respond and should not be asked to do so. That is a fair protection.
The Garda Commissioner is bound to be truthful. Commissioners are men of integrity and one day the role may be filled by women of integrity. They should be in a position to come into the Oireachtas and decline to answer questions by reference to the need to serve the Government of the day with regard to the discharge of its policies. That may not be fashionable. It would be interesting to know the points on which the present Commissioner disagrees with me with regard to matters I raise publicly.
Yes, but it would damage our relationship if I was to read criticism levelled at me by the Garda Commissioner in the newspapers. I would not dream of criticising him in public, unless we were in an extreme situation, neither would he dream of doing the same. However, if he genuinely disagreed with a policy enclosed in the strategy statement for the Garda Síochána at my behest, it would be unfortunate if a public rift emerged because of an obligation on a Commissioner to be truthful as to his personal views on a particular issue. This provision is for the protection of a Commissioner. It is as wrong to ask him if he disagrees with my policies as it is to ask if he agrees with them. If one keeps asking him with what does he agree one will eventually identify that with which he disagrees. That is not a useful way to carry out the Commissioner's functions. The Garda Síochána is a disciplined force, and the Commissioner is in charge of discipline within the force. It would be strange if he was entitled to break ranks with the Government of the day on points of Government policy and criticise it. The relationship between the Commissioner and Government of the day would be seriously undermined if he were given the right and entitlement to criticise Government policy before the Oireachtas. It would not assist him in any way and would render that relationship dysfunctional.
The Minister has made a convincing case regarding the Garda Commissioner. My personal objection, as distinct from the objection raised in the amendment, is that such provision is standard in all legislation dealing with bodies such as the Radiological Protection Institute of Ireland and others that are meant to play a role in public policy formulation. I accept the Garda Síochána does not have a role in terms of public policy formulation given the nature of its job. However, the chairmen of other bodies are prohibited by injunction from criticising public policy, a provision which is, effectively, a gag. The Minister made the valid point that the Garda Commissioner's position is unique.
I move amendment No. 56:
In page 26, between lines 5 and 6, to insert the following subsection:
"(4) Whenever required to do so by any other committee of either or both Houses of the Oireachtas, the Garda Commissioner shall give evidence to it on such matters as the committee concerned requests.".
The point at issue is whether the Garda Commissioner should be required to only attend the Committee of Public Accounts. I defer to the view that the amendment could be written more precisely but it is not necessarily right that the only committee at which the Garda Commissioner should attend is the Committee of Public Accounts.
I do not support the amendment. Currently, it is possible for a committee of the Houses of the Oireachtas to summon the Garda Commissioner to attend before it provided it is using its powers of compellability. The amendment seeks to provide that the Commissioner will be at the beck and call of any committee which resolves any afternoon to require him to attend.
The Commissioner is not immune to the compellability provisions provided they are duly complied with and the summons is relevant to him or his legal functions. It is a different matter to provide that he be required by a committee of either House to attend and give evidence on matters which it deems appropriate. The inclusion of such a provision would result in substantial interference with his position. The Commissioner is compellable and will have a particular obligation to attend before the Committee of Public Accounts. Where exceptional circumstances arise which require him to appear before other committees, he will do so.
Senators who are members of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights will be aware of his attendance there. I do not want to create a situation whereby the commissioner must attend each time he is requested to do so. His position would be weakened were he to be statutorily required to attend a committee every time he was requested to do so.
While the Minister has made a relevant point, he has, perhaps, over stated it. Perhaps that is how he deals with things in life generally. The amendment states: "Whenever required to do so by any other committee......". On reflection, that requirement is provided for under the compellability provisions.
I move amendment No. 57:
In page 26, subsection (1), between lines 11 and 12, to insert the following new paragraph:
"(b) one person nominated by the Garda representative bodies;".
I wonder why ordinary members of the Garda Síochána have been excluded from this section. The audit committee should include a representative of ordinary members of the Garda Síochána. Many people in the force would have expertise in this area. It is not sufficient that their interests be represented only by an Assistant Commissioner. I ask that some consideration be given to this matter so as not to exclude ordinary members of the force from membership of the committee.
Section 36, subsections (2) and (3) state:
(2) The audit committee is to consist of the following persons, all of whom are to be appointed by the Garda Commissioner:
(a) a Deputy Garda Commissioner;
(b) one person nominated by the Minister;
(c) not fewer than 3 other persons who have relevant skills and experience and none of whom is, or has ever been, a member of the Garda Síochána.
(3) The Garda Commissioner shall designate as the chairperson of the audit committee one of the persons appointed under subsection (2)(c). . .
Subsection (5) states:
(5) The members appointed under subsection (2)(c) hold office on such terms and conditions as may be determined by the Garda Commissioner with the consent of the Minister and the Minister for Finance.
It is important the audit committee is independent and is chaired by an outsider. The independence of the auditing process is a serious requirement. I do not see why the Garda representative bodies should appoint somebody to that function any more than the workers of a company should appoint an audit committee of that company under company governance. It is not necessary to put such a provision in place. I will not accept the amendment.
The amendment requires that one person from the Garda representative bodies be nominated to the audit committee. Were the Minister to consider excluding current or former gardaí from being a member of the committee it would go some way to appease me. I do not believe the independence of the committee would be affected by the inclusion on it of a former or current member with expertise in the area. My concern relates to the total exclusion of such people from the committee.
I have not been persuaded by the Senator's argument. While I do not suggest the Bill should be amended, perhaps the provision relating to ministerial discretion could deal with this issue. It would be innovative if one of the chairmen of the joint policing committees were nominated to such position. Such a provision would knit things together nicely and would provide status for the joint policing committees. Perhaps the Minister will consider my suggestion.
I support the amendment in principle. The Bill is flawed in not having a representative from the Garda Representative Association or the Association of Garda Sergeants and Inspectors on the audit committee. A submission was made, arguing for one person, designated by the Garda representative bodies, to represent their interests on the committee. I do not see the rationale behind having a Garda Deputy Commissioner appointed to the committee while no member of the force will be. Maybe the experience in other jurisdictions was different. Departmental officials would have studied similar legislation in Britain and Northern Ireland.
It would help to meet the Bill's objective and make matters more transparent to the 10,000 members of the force. Membership will be 14,000 when the Minister is finished. This is a sizeable number of people to be without a representative on the committee. I will go along with the Minister but I suggest the amendment should be considered as it will not take from the Bill. The Minister knows where I am coming from, as far as my Seanad nominating body is concerned.
The committee will consist of at least five persons. A minority of insiders will be represented, if one includes the Minister's nominee as a quasi-insider. The structure envisaged is one on which there will always be a majority of non-members of the Garda Síochána from which the chairperson will be selected.
The Garda Commissioner is the Accounting Officer and this committee's function is to advise the Garda Commissioner on financial matters relating to his or her functions, to report in writing to him or her and to provide the Minister with a copy of each report. If ordinary members of the Garda Síochána, however defined, were to be represented on the committee, it would have to be through either nomination by the representative organisations or an election by all members of the force. I am not attracted to the proposition of putting members of representative organisation ex officio on the audit committee. This is an audit committee and I do not want to compromise people. If one is there to represent a representative organisation, one is carrying out a different function from being an audit committee member. I have responsibility to the Oireachtas for the Garda Vote. The Garda Commissioner will be responsible as Accounting Officer for the force. The committee will assist the Garda Commissioner in his or her role as Accounting Officer and the Minister in the overall responsibility for the Garda Vote.
The Bill allows for the Minister to nominate a member of the audit committee. This would not preclude the Minister or his successors from appointing a member of the force thereto. This will ensure that the nominee will not be representing an organisation but will be an experienced and respected member of the force, past or present. This provision does not state that the nominee cannot be a serving or former member of the Garda Síochána. There is flexibility in this regard and I recommend it be considered by the Minister.
In a sense the Senator is right as there is no obligation to publish the committee's reports. However, they will be available to the Comptroller and Auditor General, if he or she believes they contain matters that should be brought to the attention of the Committee of Public Accounts. If every audit committee report into suspected malpractice was prepared on the basis that it had to be made public, it would seriously damage the effectiveness of the committee's work. The Comptroller and Auditor General can call for any reports and to check for any matter to which the public should be alerted.
The Minister is trivialising this issue. The Bill states "the audit committee shall ... report in writing at least once a year to the Commissioner on those matters and on its activities in the previous year, and provide the Minister with a copy of each report.". It is not envisaged that the committee will produce reports every week. I would not be unhappy if the Minister had reasons some reports on individual matters should not be published. However, there is no reason the annual report to the Garda Commissioner and the Minister cannot be laid before the Houses of the Oireachtas.
The internal auditing process may do spot-checks of various kinds. If the intention is to prevent fraud, misappropriation or misapplication of moneys, publishing how this is achieved will weaken the effectiveness of the audit committee rather than strengthening it. If the report states that 48 spot-checks were done on the collection of parking fines while none was done on gun licence fees, the method will become known.
I do not see what the Oireachtas would do with that material. The Constitution provides for a Comptroller and Auditor General who will have access to all of the material. If it contains anything of interest, I have no doubt the Comptroller and Auditor General will draw it to the attention of the Committee of Public Accounts. If appropriate, it will come into the public domain in that context.
I move amendment No. 58:
In page 28, subsection (3), line 13, to delete "As soon as practicable after" and substitute "Within 30 days of".
The amendment refers to the annual Garda report. The report for 2002 was published at the end of 2003, meaning it took the Garda a year to complete. The report for 2003 was published in November of this year. Given the technology available in this age of accountability, it is unacceptable for this scenario to obtain. I am glad to see that section 38(1) requires the annual report to be completed within four months and acknowledge that matters in this context have improved significantly.
As drafted, however, section 38 allows the Minister to publish the report at his discretion. I am not happy with the use of the words "As soon as practicable". It is not unreasonable to request the Minister to publish the report within 30 days of receiving it. If the Minister has it, there is no reason not to publish it within a month. While I acknowledge that there have been improvements, amendment No. 38 would further enhance the Bill.
In fairness to the Minister, he has improved matters in this area. Unlike his predecessors, he has put the quarterly figures into the public domain. The amendment moved by Senator Cummins is not, however, unreasonable. Why would the Minister not publish a report provided to him directly by the Garda? All we are asking is that he would do so within 30 days. I have yet to find a reason he would not and imagine it is something he would wish to do anyway. It would be better from a legislative point of view to remove the words "As soon as practicable" and insert a 30-day provision. I ask the Minister to consider making the amendment.
I welcome the provision in section 38 that the Garda Commissioner shall submit a report to the Minister not later than four months after the end of each year. The Minister is to be applauded on that. I have seen local authorities issue reports 12 months after the end of a year which is ridiculous. By the time such reports are published, they are out of date and irrelevant. Although it seems inherent in the public-service psyche to shy away from deadlines, we should require the same of the public sector as we do of private companies. Businesses must comply with clear deadlines in companies legislation or fines are imposed. It is incongruous to have a laissez-faire approach in the public service.
I am not sufficiently au fait with the matter to know what might inhibit publication of a report by the Minister. I am inclined to think there should be provision for discretion as a report might contain material, the publication of which the Minister or his or her officials felt should be delayed. I agree that such a delay should only take place in extenuating circumstances. While I do not know if an annual Garda report would contain material which would require revision by the Department, the imposition of a 30-day limit could be very restrictive in a scenario in which a difficulty arose.
I am grateful to Senators for pointing out significant improvement in this area on my watch and that of my predecessor. Garda reports are being submitted in comprehensive form reasonably promptly by comparison with the situation in the past. I will not be tempted into making unfair comparisons as to how bad the past was which would excite party animosity.
We will leave it like that. I thank the Commissioner and his predecessors for bringing about the improvement under discussion.
When I took office, annual reporting of crime figures, which is a matter of some significance though by no means the sole subject of the Commissioner's report, took place in the public domain up to 18 months after the period to which they related had ended. In effect, reporting took place almost two years after the start of that period. I inquired about the practicability of issuing quarterly crime statistics and discovered it was possible. It is natural that there should be counsels of caution in any organisation and I was asked, given that the figures might be awful, if I really wanted them to be published.
I decided the better approach to the publication of crime figures, which are a key performance indicator of Garda activity, would be to carry it out while the subject matter was reasonably fresh. If something is going wrong in a particular Garda division or if there is a surge in the incidence of a particular offence, the public finds out about it three weeks after the end of a quarter. The people whose responsibility it is to attend to such matters have the attention of the public directed to their area or at the trend in a certain crime at a very early date. I have been lucky that the period since the institution of quarterly figure publication has been one in which the Garda has performed relatively well. There has been a downward trend in headline crime figures. If they went up, I would have to take the rough with the smooth.
We have moved dramatically from the scenario in which by the time we received old, out-of-date news, a Garda Commissioner could be long gone from office before we found out what happened during a considerable period of his or her tenure. We have got to a position where the key performance indicator in question is regularly reported on. When one sits at the Cabinet table, one receives a pile of reports every year. Former Minister for Finance, Deputy McCreevy, had a policy that any body which could not report within six months of the end of a year was presumed to be asking for its own abolition. Once that became noted as a general policy, it was amazing to see how in the months of June and July all the required reports which it used to take long periods to submit would tumble in.
I am strongly of the view that if the reporting requirement is to mean anything, reports must be prompt and contemporary. The four-month provision in section 38(1) is apposite. It allows a reasonable period for the compilation of the annual Garda report to a reasonable standard and permits the public to be informed relatively soon after the end of a year what circumstances obtained during it.
Amendment No. 58 proposes to delete the words "As soon as practicable after" and to provide that "Within 30 days of receiving the report, the Minister shall cause a copy of it to be laid before each House of the Oireachtas." I am attracted to the spirit of the amendment. Having imposed a four-month deadline on the Garda Commissioner, it seems slightly at odds with the spirit of the change we are bringing about to provide that I can decide in the fullness of time when I will put his or her report into the public domain. I expect on Report Stage to insert in section 38 a form of words such as "As soon as practicable and, in any case, no later than 30 days". That might be a better way to proceed. It is important that the Department and my colleagues in Government have time to absorb a report. Since this report comes out in May I will not run into a holiday period in which, normally, Cabinet meetings are not held. It means I have time to absorb it and prepare myself for the interviews and so on that follow from it. It is also important that I should be in a position to tell my colleagues at Cabinet what the report contains so that they have time to assess it in a public sense. That is fair. We have to have some time to consider a report but 30 days after its receipt is probably enough time for that process to be done. I am attracted to the spirit of this amendment. Rather than stating "within 30 days" it should state "as soon as is practicable and not later than 30 days". We can prepare an amendment along those lines.
The purpose of this amendment is to provide that the Garda Commissioner shall ensure that the statistical information is made available not only to the Minister but also to the Central Statistics Office. This follows on from my acceptance of a recommendation from the expert group on crime statistics that a central crime statistics unit should be established, and I decided it should be established within the Central Statistics Office. Generously, the Central Statistics Office agreed immediately, even without a statutory nudge in that direction, to carry out this function.
My aim is that the old canard that this is gardaí devising figures about themselves which we should take with a pinch of salt will be laid to rest. The Central Statistics Office, which has the function of carrying out crime victimisation surveys and the like and has an expertise in the area, should carry out this function. That will free up resources within the administration of the Garda Síochána because what I requested, which was quarterly figures and annual reports on time and so on, takes up a good deal of resources in terms of meeting deadlines, checking everything and ensuring that all crimes are being adequately reported. I do not intend to accept amendments Nos. 60 and 61 for the same reason. They are unduly prescriptive.
The purpose of amendment No. 60 was to regularise what the Minister is already doing. We welcome the practice of making provisional and quarterly statistics available but we take exception to the way the Minister sometimes selectively presents those statistics and the public relations spin that is put on them. The statistics should be published in full and presented. The Minister has said he will not accept either amendment. We tabled the amendments with a view to having a proper deadline. We appreciate the improvements that have been made but these amendments would have regularised the process and ensured it could not be reversed by a future Minister who may decide that the quarterly statistics should not be made available and that we should go back to old practices.
This is a Bill for the future involving not just the current Minister but all future Ministers who will have the privilege to hold the position the Minister holds. While the Minister might have a liberal and tolerant attitude to the publication of information of this nature, it may not always follow that others will do the same. When the Minister receives the quarterly figures, what is the normal time lag involved from receipt to publication?
Senator Cummins talks about spin. When I receive the quarterly figures I study them carefully and then I make a totally vain attempt to convey the truth to the people. Whatever I do, my good friends in the media immediately engage in a massive distortion of the figures. That is what happens on every occasion. If there is a decrease of 4% in overall crime, it is reported that rape incidents have soared by 90% or something like that. If one reads down to the end of the report one will find that crime levels are decreasing. Spin on this matter comes from the media, not from me. In the statements I issue I always counsel against rash conclusions, ask people to examine the totality of the figures and remind them that the overall figures for headline offences equates the theft of a bicycle with a murder.
No. That is not spin. I am simply reminding people that there are other aspects to be considered. If I claim crime has decreased by 5% people must look carefully at the individual components of that. In all the statements I have produced there is not a whit of spin in them.
On the contrary, I always tell people to read these things carefully and not draw rash conclusions from them. I am aware, however, that crime sells newspapers. That is an immutable fact in public life and it has been the case as long as newspapers have been produced. A good crime story is better even than a corruption in politics story. Crime stories sell newspapers.
I am not naive enough to expect that a report that sells newspapers will be written in a way that suggests we should all be at ease. It is much easier to convey to the public the notion that crime is on the increase, that we should all be scared and that there is a real problem in society. That is a much easier message to get across than one to the effect that crime levels have improved slightly over the past quarter and that there is less crime.
I will give a prime example to the House. Incidents of murder have declined consistently in the period since I was appointed Minister, although I am not claiming responsibility for that. There has been a constant decline in the number of murders committed but one would not know that from reading many newspapers or listening to programmes on radio or television. They report that there is a murder a week and that the situation is out of control. That is simply not true. We are coming to the end of this year and the figures will reflect that there were fewer murders this year than last year, and there were fewer murders last year than the year before. That is a fact but the newspapers do not want to report that. There will not be a headline to the effect that the murder rate has dropped. It will not be done, but if they sift through the tables of figures I produce every quarter and see that the number of rapes increased in one quarter by X amount, from one figure to another, and that it represents a 40% increase, the banner headline will read, "Rape Spirals Upwards", or something like that.
I am not naive and I know what newspapers do but in this House at the very least we should be conscious of the fact that, for example, the incidence of murder has been declining for two years. There is no question of me spinning; those are facts. That is one figure in which everybody must have some faith. Gardaí cannot turn a blind eye to murders and so on. It is interesting that, despite an increase in population, increased urbanisation and the increased availability of firearms, the number of murders has fallen over the past two years. Nobody will report this because it does not sell newspapers.
A sensible counsel against quarterly publication of crime figures was that a news story would be reported on a quarterly basis rather than an out of date story 18 months after publication and the media would be given four bites at the cherry every year. That was good advice but, on the other hand, not producing the figures quarterly would break the chain of accountability and distract the Garda. Who would be motivated by figures that may appear in 18 or 24 months? The world does not work that way.
Quarterly publication is positive. I will think about accepting the proposal before Report Stage. I do not want to make a provision that will create a difficulty and more bureaucracy. I will have to contact the CSO regarding whether this should be a statutory requirement. It would be difficult for a bad minded successor of mine to reverse that policy.
I accept that but, even without making a provision in law, it would be difficult to return to the old regime. However, I do not want to create a mess for the CSO, without consultation, if it takes over this function. Significant progress has been made in publishing the figures on a quarterly basis. They are published without spin and, if Members do not believe me, I invite them to ask for the accompanying speeches and statements from my Department. When the CSO takes over this function from the Garda, it will improve significantly. It would be unwise to impose the quarterly provision in law without carefully considering whether it might create difficulties in the future.
Normally, I receive the first quarter figures in mid to late April and I turn them around within ten or 14 days. In a vain effort to ensure they are reasonably presented to the public, I have come to the view that I should be available to discuss them. On some occasions I am involved in a major issue and I decide to do the press briefings the following week so that I can absorb the figures and come forward with an appropriate public response.
The section has been welcomed by all the representative associations. I refer to the discussions in January between the associations and senior departmental officials. If a garda who is prosecuted is found innocent, the Department should be prepared to pay the full costs of the hearing. The discussions will address protocols in this regard.
I promised the representative associations I would introduce legislation relating to vicarious liability so that members would understand where they stood when they became involved in the criminal process. We have reached a funny point. Legal aid fees are substantial compared to when I began to practise at the Bar in 1974. There was a time when legal aid was regarded as a dirty raincoat end of the spectrum activity by practising barristers. It was a case of God help those interested in criminal law while others had to do the work out of economic necessity. It was not fashionable, although many barristers acted on a pro bono basis in criminal cases because criminal legal aid was not introduced until the 1960s. It was first introduced in murder cases and was then generalised as a result of a High Court decision.
It would be a heavy burden on a middle class person of normal means to pay a solicitor or barrister the amount available under the legal aid scheme for his or her defence if he or she was impecunious. Serious offences attract serious legal aid fees and it is a heavy burden on a person who does not qualify for legal aid to meet those fees. Members of the Garda who faced a lengthy jury trial arising, for example, out of an accusation of assault wondered whether they could afford to defend themselves properly. It was demeaning for a member who takes a salary form the State that his or her family circumstances were such that he or she could not put together the fees to have himself or herself properly defended. The representative associations picked up the tab in many of these cases and that was a worry for them because they were providing a system of legal aid.
Senator Leyden suggested that if a garda was acquitted, he or she should be given the full costs of his or her defence as would be the case if or she was convicted. I am not disposed to doing that because if one is acquitted, the system will provide a sum not exceeding that available under legal aid and that is a generous amount. It is not necessary to give somebody more out of the public purse.
I move amendment No. 63:
In page 31, between lines 16 and 17, to insert the following subsection:
"(3) For the purpose of pension entitlements, a period of full-time service spent outside the State under this section, shall be a reckonable period of service.".
Currently, a garda who resigns and takes up a full-time position with Interpol gives up his or her pension entitlement. We should encourage members of the Garda Síochána to compete for positions at this level. This amendment is designed to do that.
It might be useful to set out briefly the general position with regard to service abroad by members of the Garda Síochána. Where a member of the Garda is stationed overseas in his or her capacity as such a member, for example with Interpol, he or she receives an allowance for such duty and accrues service and pension entitlements as normal. Where a member opts to leave the Garda to serve overseas with another agency, such as the UN, he or she ceases to be a member and must rejoin the force on the termination of that service. In such cases the member does not accrue service and pension entitlements. These distinctions are well understood within the force and any question of a change in the position would, in the first place, arise for discussion between me and the various representative bodies. Therefore, it would not be a good idea for me to start negotiating here on the floor of the House through legislation.
This section deals with secondment from the PSNI to certain ranks in the Garda Síochána while section 47 deals with the reverse situation. Have there been any preliminary discussions with the Chief Constable on this issue? If there have, will the Minister inform us whether any serving PSNI members are interested in secondment to the Garda Síochána? There is a logical reason for interest the other way, particularly in terms of boosting the number of Catholics in the PSNI as a means of achieving the 50:50 regime proposed in the Patten reforms. I am not against the proposal but am interested to know whether discussions with the Chief Constable and the Garda Commissioner have indicated any interest in the proposal and the legislative framework outlined.
This part of the Bill is effectively a repeal and re-enactment of the Garda Síochána (Police Co-Operation) Act 2003. That Act has a part in the Patten report and the outworking of the Good Friday Agreement. Until now, there has been a delay in the practical implementation of the Act, based on the question of the remuneration of members going North or South. With regard to members going North, I will issue new guidelines as to entitlements. I hope in the near future to be in a position to meet the Garda Commissioner and the Chief Constable in Northern Ireland to announce the first secondments on a South-North basis.
The Senator's question on whether there has been an interest in North-South secondments is interesting. I am not in a position to answer that today. However, I will communicate with him on that issue. I imagine that until the initiative gets going on a South-North basis, the implementation North-South will be held up.
I move amendment No. 64:
In page 34, subsection (4), lines 44 and 45, to delete "Births and Deaths Registration Acts 1863 to 1996" and substitute "Civil Registration Act 2004".
I have been asked by my colleagues in the Labour Party to move these amendments. The argument is that the Civil Registration Act 2004 consolidated the various Acts. I understand the Government is accepting all three.
I move amendment No. 67:
In page 35, between lines 32 and 33, to insert the following subsection:
"(3) This section shall not apply to a trade union or representative body which has acted legitimately or in contemplation of a trade dispute.".
I have concerns regarding the broadness of this section. The Constitution recognises freedom of association and this section does not sit comfortably with that principle. While I recognise there are public policy considerations behind what the Minister is trying to achieve, this section does not strike the right balance.
The representative bodies should have the ability to flex their muscles when trying to get better conditions and salaries for their members. Gardaí are employees like any other employees and want the best possible conditions for themselves. To impose a statutory ban in the way proposed is inequitable. Will the Minister give us his view on this? The proposal seems to be a case of using a sledgehammer to crack a nut.
I am surprised at this amendment because Fine Gael is a party with regard for strong law and order principles. One can only imagine the chaos that would ensue if we did not have the kind of protection offered in this section. I do not accept that gardaí are workers like any others. They are intrinsically involved in the security of the State and have responsibilities and powers a person in a normal job does not have. It would create an impossible position if we did not have the protections of this section.
Over the years partnership systems have evolved which have led to dialogue between members of the force, their employers and the State. Most trade unions operate responsibly. In the 1970s and 1980s when we had high unemployment and much difficulty with industrial relations, a maturing of attitude and approach to industrial relations took place, particularly in the private sector. This has facilitated a partnership approach in most companies which has avoided withdrawal of labour as an addendum to negotiations. This is good and healthy and has served us well economically.
Unfortunately, the same cannot be said of the public service. Perhaps this is because public service management has been particularly weak in dealing with industrial relations issues. For example, when local government reform was introduced, an embargo was placed on the external recruitment of people to senior positions, which were to be filled in-house. As a consequence, while many good people were promoted, there are also many round pegs in square holes. The unfortunate consequence of that is that the public and taxpayers will get an extremely poor return over a number of years until these people go through the natural wastage process of retirement and whatever else.
We need to bring the operation of industrial relations mechanisms within the public service into line with what is happening in the private sector. It needs to become much more modern in its approach. It would be a backward step to accept the proposed amendment.
The amendment is a studied recommendation. I do not know if the Minister's officials received any recommendations on the Bill in this regard from the representative associations. I am unaware of any such case having been made. It would be difficult to enforce this measure, as it would be difficult to prove that such inducement occurred. Section 52 refers to a person who, "induces, or does any act calculated to induce, any member of the Garda Síochána to withhold his or her services or to commit a breach of discipline".
This section has serious implications for representative associations. I am sure the Minister or his officials have had discussions with the relevant organisations. I have not received any submission in this regard but I wonder if the proposed measure is enforceable.
Is it possible for the Minister to introduce a measure that is in keeping with the amendment which would ensure that where legitimate negotiations are under way, members of the Garda Síochána would not be unnecessarily charged with this type of offence? Otherwise, it would be very difficult for representative associations to negotiate on behalf of members.
We are discussing the amendment rather than the section generally. However, I suppose we can talk about both at the same time. The amendment runs contrary to the terms of section 17, which we have already discussed, and for the reasons I expressed in regard to that I will not change my view at this point.
On this issue, I would ask Senators, some of whom have been nominated by a federation which includes representative organisations, to look carefully at the report of the Morris tribunal, which investigated Garda activities in Donegal. The point made by Senator Jim Walsh was set out in that report in the coldest terms. Members of the Garda Síochána are not simply employees. The Garda is not simply a service industry where the public are customers, it is something different, namely, a disciplined force that is a central element of the executive power of our State. I am not naive in regard to what can and cannot be achieved, but it could not be the case that somebody could organise, in effect, a mutiny in the Garda Síochána and that the State would stand helpless in the face of such behaviour.
Senator Cummins comes from a party, of which I was once a member, which has a strong tradition in law and order and standing behind the State. Sometimes standing behind the Garda Síochána, one has to stand behind the force as the force, rather than the force as represented by the representative bodies of the force.
The Garda Síochána is a central pillar of the State and must operate as a disciplined force, as Mr. Justice Morris pointed out. It cannot be the case, for instance, that the proper functioning of the force is reduced to solely an industrial relations process. There are occasions when superior officers are entitled to an immediate explanation and when it is not a matter of negotiation as to whether they would be informed of facts or given explanations to which they are entitled. A disciplined force cannot function in that way. I do not wish to sound draconian or hardline.
A police force is distinguishable from fire or ambulance services which are equally vital parts of our State but while we can say in those cases unionisation is permissible, we simply cannot cross that line in regard to the Garda Síochána.
I am considering tabling an amendment to section 52(2)(b) to increase the penalty for causing disaffection to five years because, as things stand, to the best of my knowledge — and Senators may correct me on this — there would not be a power of arrest if we leave the indictable penalty at two years. Somebody could hand out leaflets urging people to mutiny and it would not be possible to arrest them as the law currently stands. I think that would be wrong. I hope that is not taken as being hardline, it is just in order to make the legislation effective.
I accept what Senator Leyden said, that one would need to reach a high threshold before this section would come into operation, but if we did reach that high threshold and I was confronted with people handing out leaflets outside Garda stations urging a mutiny effectively against the authority of the Garda Commissioner, I would have to be in a position to arrest them. I could not just say, "Please desist or we will send you a solicitor's letter."
To be honest, it is much of a muchness to me. I do not wish to get involved in the politics of competitive penalisation for offences. Let us remember that in the case of a summary offence, it has to be a minor offence under the Constitution. The seriousness of the offence has to be taken into account. I will think about this between now and Report Stage. I will consult the Parliamentary Counsel as to whether €3,000 is, in the view of the Attorney General, a permissible penalty for a summary offence. If it is, I cannot see that there is anything sacrosanct about €2,500. However, €3,500 is certainly getting to the upper limits of penalties for summary offences. I am cautious about going too far in this regard.
I move amendment No. 71:
In page 36, subsection (3), line 25, to delete "€2,500" and substitute "€3,000".
This amendment is similar to that which we tabled to bring the standard penalty for a summary offence up to €3,000. Amendment No. 72 reflects the fact that we believe the offence of impersonation of a garda is a very serious one, which must be reflected in the gravity of the penalty available. I cannot understand why the Minister has not made impersonation an indictable offence when one considers the circumstances in which people have impersonated gardaí. For example, members of the Provisional IRA have set up road blocks and placed blue lights on their cars in order to pull over trucks carrying alcohol and cigarettes. Senators are aware of such activities. I am sure the Minister agrees that the impersonation of a garda is a very serious offence, which is reflected in the content of the amendment.
I will consider the matter between now and Report Stage. I note that this is a summary offence, which is largely due to the fact that it is a re-enactment of an existing provision. To have in one's possession or to wear a Garda uniform is a serious matter. However, if it is not an impersonation offence, which is dealt with under the previous section, I do not want to go wild on penalisation.
Having said that, if I found in someone's garage four Garda uniforms or imitations or composites of Garda uniforms and civilian clothes which look like the real thing, I would agree that six months might be an inadequate sentence because this could be seen as a preparatory act to using those items for something else. However, I do not want to be overly reactionary on the subject.
If someone was found in his or her flat with a number of Garda uniforms, it could be a very serious offence; much more so than one committed under section 53, in which a person might telephone someone else pretending to be a member of the Garda Síochána. I will examine the provision between now and Report Stage.
This amendment is a drafting change preferred by the Parliamentary Counsel. It deletes the words "the duties of that person's office, employment contract or other arrangement" and inserts the words "duties under the contract or other arrangement". It aligns the text with similar phraseology earlier in the subsection.
This amendment is a drafting change which provides that the disclosure of information shall not have a harmful effect unless it comes within the parameters set out in section 55(2). I would prefer to state it in this way because, in its original form, the section states that it has a harmful effect if it does any of these things. It is better to state that it does not have a harmful effect unless it does one of these things. It is a slightly more liberal law if phrased in the latter manner.
A number of amendments to section 55(2)(h) have been proposed. Amendment No. 75 takes account of amendments Nos. 76 and 77, tabled by Labour Party Senators and, as discussed with the Parliamentary Counsel, may meet their concerns. I refer to the reference to personal information relating to a deceased person and the need to insert the word "otherwise" in the paragraph. At this stage, it might be helpful to refer to amendment No. 89, which will be discussed shortly. It defines personal information for the purpose of this section as including personal information relating to a deceased person.
The relevant subsection in the Bill refers to personal information as defined in the Freedom of Information Act 1997. The definition of personal information in the FOI Act does not refer specifically to deceased persons but section 28 of that Act, which deals with the issue of the refusal of information on the basis of personal information, includes a reference to information relating to a deceased individual. Generally speaking, personal information in the FOI Act is taken to include deceased persons so, in one view, there is no need to provide for a specific reference in this Bill. However, I am inclined to the view that for the purpose of clarity a provision as proposed relating to a deceased person should be inserted in the subsection by reference to the 1997 Act. As I have said, amendment No. 89 provides accordingly.
There is no need however to refer to a missing person as a person's status is not affected by his or her location so such persons would have the benefit of the protection of personal information in the FOI Act. It also seems to me that the subsection could usefully be simplified and, for this reason, I propose an amendment of the words as defined in the Freedom of Information Act 1997, "obtained in the course of a criminal investigation", should be deleted. Thus, there would be no need for the proposed amendment.
I do not propose to accept the Labour Party group's third amendment, which is to replace the word "and" with "or". As the section as a whole stands, a double test has to be satisfied, which refers to the publication of personal information and harm, not or harm. My amendment proposes that it has to be harmful and be consistent with this; there is a double test before a person can be found guilty. If the amendment is accepted it would have the effect of broadening the scope of the offence and I would not be happy to do this in circumstances in which the potential penalty is quite severe; up to seven years imprisonment. This is commensurate with a serious breach and the double test should be retained in my opinion. In this context, section 55(2)(h) reads, "results in the publication of personal information and constitutes an unwarranted and serious infringement of a person's right to privacy." The intention is that the definition of personal information will be inserted in a new subsection (8), which we will discuss on amendment No. 89.
I hope that the Labour Party Senators agree that this meets their concerns in respect of amendment No. 76, which concerns personal information relating to a deceased person. I thank the Labour Party Members for drawing these matters to my attention by way of the amendments tabled to this important area of the law.
Section 55(2) provides that the disclosure of information referred to in subsectioin (1) has a harmful effect in a number of circumstances, including those set out in paragraph (k), which states:
[if it] affects adversely the relations of the Government with any political party, group or institutions in Northern Ireland or the Government's ability to promote agreement, advance the peace process or engage in negotiations with regard to Northern Ireland.
It is proposed to remove that paragraph completely. It is vague in intent. What does the concept of the peace process mean in any event? When I hear some people, in parties not represented in this House, claiming they spent 30 years struggling for peace, my stomach turns. Former Deputy John Bruton got into trouble——
Sometimes people can comprehend a lot of things from the phrase "the peace process". I remember on one occasion joining a peace march in O'Connell Street after some terrible atrocity and from out of a side street came a group of Sinn Féin people with a placard that referred to a poor man called Mr. Ed O'Brien, who had been blown up while on active service for the IRA in Britain. They had posters commemorating him as a peace activist. I felt very sorry for his family that language was perverted in such a way and that setting off bombs was put down as peace activism. Sometimes words cease to mean anything. In the circumstances we have decided to delete paragraph (k) completely and elaborate on paragraph (j), extending it to encompass Northern Ireland. That is probably the best way of dealing with this issue.
I move amendment No. 82
In page 37, between lines 32 and 33, to insert the following new subsection:
"(3) Information shall not be deemed to be of harmful effect if it can be shown that its disclosure was inadvertent or procured through fraud or deceit.".
This section is viewed in black and white terms and seems to allow very little scope for flexibility. Let us take the example where a garda receives a telephone call purporting to be from his or her chief superintendent or superior officer and he or she discloses information to that person, who turns out to be a journalist. Should this innocent garda be condemned under the provisions of this section? That appears to be the effect of section 55(3). It gives rise to concern. I would like to hear the Minister's comment on it.
In tabling amendment No. 83, I proposed it to offset the absolutist nature of the section, particularly section 55(2) which sets out a very broad definition of the term "harmful effect". The Minister should acknowledge that the Garda Síochána uses the media to its advantage and for its assistance in investigating crimes, particularly serious crimes. When members of the Garda Síochána contact the media to highlight a particular case, they know that the profile of the case will be raised, which inevitably leads to more information from the public. In this regard the provisions of subsection (2) go overboard. Will the Minister address these points?
What amendment No. 82 seeks to achieve is amply covered by the terms of subsection (1), which states:
A person who is or was a member of the Garda Síochána or of its civilian staff or who is or was engaged under contract or other arrangement to work with or for the Garda Síochána shall not disclose, in or outside the State, any information obtained in the course of carrying out the duties of that person's office, employment, contract or other arrangement [and this is the point] if the person knows the disclosure of that information is likely to have a harmful effect.
The mens rea, the guilty mind to commit that offence, is that the person knew, when he or she did it, that it would have a harmful effect. That is a fairly high test for the prosecution to prove. It is balanced in its own way by subsection (3) which states:
For the purpose of this section, a person is presumed, unless the contrary is proved, to know that disclosure of information referred to in subsection (1) is likely to have a harmful effect if a reasonable person would, in all the circumstances, be aware that its disclosure could have that effect.
It introduces an objective standard of behaviour. Having said that, let us suppose that somebody who is in fact a journalist impersonates a superior officer, nobody could be said in those circumstances to know that the disclosure of the information to the superior officer would have a harmful effect. An innocent person who is duped would have a defence. I do not want to make this an unprovable offence, because it is there for serious reasons.
The House will know that we started off with a draft set of heads of the Bill which attracted considerable public controversy, that we have gone through a process of discussion with the representative bodies and such like and have produced a Bill which I am further amending to make it more precise, including the introduction of the double requirement of harmfulness and one of these categories, rather than deeming any of these categories to be per se harmful. I am softening the offence quite considerably in that respect. This is a question of balance.
I want to have a situation that those who deal with the Garda Síochana and the members of the force who require their colleagues to deal professionally with the information they are obliged to share all operate to a reasonable decent standard of behaviour. I am not asking people to behave like reverend mothers, but merely that they behave to a standard of decency which I think everybody is entitled to expect. The great majority of members of the force would instinctively, without any law, go down this road.
Section 55(4) does not prohibit a person from disclosing information if the disclosure is authorised by the Garda Commissioner, as per paragraph (d); is otherwise authorised by law, as per pargraph (e); or is made in the course of, and in accordance with the duties of that person, as per paragraph (a). That covers a significant number of potential defences. For example, section 55(4)(a)(x) covers disclosure to "a member of either of the Houses of the Oireachtas where necessary for the proper discharge of the member's functions,". That is a very broad provision for somebody who wants to act as a whistleblower. The person may go to any Member of the Houses of the Oireachtas, if it is relevant to that person's functions, such as holding the Government accountable. If one looks at the small print, one sees that the section is not draconian.
I do not want to reopen old wounds, but there have been occasions when a tiny minority in the Garda Síochána have revealed information which must have been crucifying to the victims.
There has been publicity about some of these cases. In one case an entire file was handed over to a journalist and it resulted in two women who were named in the file as being involved in an allegation of unlawful abortion, being visited by representatives of the newspaper to get their side of the story. Whatever the rights and wrongs of abortion, there was no reason a newspaper should be put in possession of such information with those consequences. Whatever the rights and wrongs of the situation and I do not wish to go into it, those two women were entitled to have their privacy totally respected and not to wake up one morning and find on their doorstep a member of the press asking them if it was true that X or Y had happened to them. That kind of behaviour, which thank God is extremely rare, should never be countenanced in any circumstances.
This section will act as a protection for members of the force who are asked for information by people who should not ask for it. They can say, "No, this is a serious matter. If you were to print that material or to publish that material or to convey that material to a third party, there could be a very serious criminal investigation".
When I was Attorney General, the former Garda Commissioner, Patrick Byrne, told me that in the absence of a section of this type, there was virtually nothing he could do to investigate many cases which were prima facie breaches of the Official Secrets Act, because he did not have a power of arrest, the power to make inquiries or the power even to check who was contacting whom by telephone. He could do nothing and was effectively relying on asking people whether they had done it and being told that it was not them and that was it.
I am not on some kind of solo run here. I have balanced this as fairly as I can. It protects whistleblowers and those people who have a constitutional duty to reveal information. It upholds all the best traditions of the Garda Síochána and provides a protection to members of the Garda Síochána that they can say to people who put them under pressure to disclose information improperly, "No, it is as good as my job is worth. If I disclose it to you, both you and I would be committing a serious offence and there are now investigatory powers which would put us both in jeopardy". That strengthens the hand of decent members of the Garda Síochána who are the vast majority and will isolate to a tiny minority those who seek to breach the law.
Senator Cummins made the point that on occasion the Garda uses the media but that can be a legitimate use. On occasions, perhaps, people may criticise it as being an illegitimate use. The Garda Síochána lives in a real world; it is not a group of reverend mothers. Its members must use publicity on occasions for their own purposes in the proper prosecution of criminal investigations. They cannot use the media as a form of informal punishment to pillory people whom they suspect. I believe this achieves the correct balance.
I am aware I have been criticised by a number of people in the media on both sides. I find it slightly confusing. I have been accused by some of being a wholly useless Minister because I have not taken action to stop information coming out. I have another group of critics who say that I am some kind of mad fascist because I have taken action. I wish these people would get together and sort out their differences.
The editor of one newspaper thinks this proposal is wholly wrong and another very senior journalist has castigated me savagely for not introducing something like this sooner. I suppose we live in a democracy and people are entitled to have their opinions. However, I think this section, as now amended, is right and it provides for all of the exceptions for which this House would want to provide.
Senator Cummins's amendment concerns the integrity of the force. I cannot imagine a case where that would be an issue where, for instance, it would not be permissible to go to a person in authority or a Member of the Oireachtas. If a Member of the Oireachtas has information and discloses it responsibly at a later stage, the media can feast on it. This is not a gagging writ in respect of material which should come into the public domain. There are checks and balances in the section as now drafted and I am very happy with it.
All Members of the House would be of the same opinion concerning some members of the force who would attempt to use this information to harm a person or a body. It would be our intention to ensure that action should be taken against such members. The new tests which the Minister proposes in this section need to be extended. Should the same not apply to the Department of Justice, Equality and Law Reform? What is to stop a senior or junior or any official of the Department or of any other Department, using such information in an erroneous, malicious way when that information came to him or her by way of members of the force?
I do not know the full answer to the question I pose. I have no difficulty with what the Minister proposes as a new standard for members of the force. Is it the case that other arms of the State's security system will face the same test? The Department of Justice, Equality and Law Reform is such an arm because it functions for the Minister alone who is responsible to both Houses. Will the same criteria and provisions apply to them?
Significant amounts of information on security matters are disposed of by many people in very sensitive positions in the Minister's Department and in other Departments. If this law is applied to members of the force, does it equally apply to other civil servants, albeit those working in other areas? I do not suggest it happened on the Minister's watch but it has happened as we all know. Information has been touted and put into the public domain not only to wreck politicians but also individuals in a malicious and harmful way. Will this law apply to those in the Civil Service?
The answer is that the provisions of this law, obviously, are special to this case. The Official Secrets Act applies to everybody in the Department of Justice, Equality and Law Reform. It is part of An Agreed Programme for Government which has not yet been reached and may not be reached, the way things are going. The ambition of the programme is to replace the Official Secrets Act with an entirely new code. Official information under the Official Secrets Act is, literally, anything. It is a summary offence for an official in the Department of Justice, Equality and Law Reform to reveal any piece of information of any kind that is in his or her possession. That is a strange law and, luckily, prosecutions are not brought.
It is an offence under the Act for any member of my staff in the Department to say over a pint in the evening what he or she did at work earlier in the day. That is an extraordinary position in which people find themselves. Having said that, since becoming Minister for Justice, Equality and Law Reform, I have been impressed, as I should have expected to be, that I have never once believed any official in my Department had leaked information.