Tuesday, 28 June 2005
Garda Síochána Bill 2004 [Seanad Bill amended by the Dáil]: Report Stage.
I welcome the Minister and his officials. This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed groupings to the House. A Senator may speak once on each grouping. I remind Senators that the only matter that may be discussed are the amendments made by the Dáil.
As we must deal with 138 amendments that were mostly rammed through the Dáil without discussion, for Members to be provided with groupings which are wrong makes the already difficult position of dim-witted people like myself, who do not have the benefit of a legal education, even more difficult. I would have thought this error would have been drawn to the attention of Members sooner rather than later. However, so be it.
I agree with Senator Ryan. The groupings should be right at this stage. The Senator has already informed the officials that they are wrong. All the information in front of us should be correct before we begin to debate the Bill. As the Senator stated, it would be difficult enough to deal with the groupings as they stand, without the added difficulty of having amendments grouped wrongly. Let us try to get it right from the beginning.
On another matter, in the House last week I asked the Leader — she, in turn, may not have made the request — for a briefing on all of the 138 amendments before the House. It was not provided, which is in marked contrast to the fact that on a similar procedure today, when we had an opportunity to discuss a maritime issue, a briefing was provided in written form to each Member of the House. Such a briefing on this Bill would clearly and precisely explain the amendments we have not had a chance to debate on Committee Stage because of this procedure whereby Report Stage can only deal with the amendments as made by Dáil Éireann, where the vast majority of proposed amendments were not debated. I wish to record that the briefing requested by me on behalf of our Opposition spokesperson has not been provided.
There is no sense in which my Department refused anybody a briefing. If such a request had been communicated to us, we would have given a briefing to anybody who wanted it.
I do not wish to devote much time to the group 1 amendments because these are technical in nature, with little serious content from a policy perspective. In the main, they arise from drafting improvements suggested by the Parliamentary Counsel. The other types of amendments involved are those correcting the alphabetic position of definitions, on which half an hour was spent in the Dáil, clarifying references to the disciplinary regulations, defining the word "document", changing references to "Departments of Government" to "Departments of State", ensuring consistency with normal drafting conventions by using the word "direct" as opposed to "require", and correcting typographical errors.
I will refer to some of these amendments in more detail. Amendment No. 9, for example, which inserts "vindicating the human rights of each individual" as a new paragraph (c) in section 7(1) of the Bill dealing with the functions of the Garda Síochána, was agreed by me with a change in the wording in light of an amendment by Deputy Jim O'Keeffe, the Fine Gael justice spokesman in the Dáil, who proposed the insertion of the phrase "respecting the human rights of each individual". In deference to Senator Tuffy, she put down a somewhat similar amendment in this House on Committee Stage last December, which was supported by Fine Gael Senators and Senator Maurice Hayes. While I was not persuaded initially to make the change, I reflected on it and accepted it.
With regard to amendment No. 11, Deputy Costello was sufficiently persistent in making a case for the amendment which I agreed to make to section 7(3). This resulted from his amendment to his own amendment and, in the circumstances, I was happy to make the change.
On the subject of amendment No. 32, I was pressed in the other House to strengthen the provision in section 16(1) of the Bill which provides for the drawing up of a new code of ethics, by inserting "shall" instead of "may". I did this on Report stage.
Amendment No. 33 deals with the insertion in the Bill of provisions that will enable the Garda Representative Association to look after the interests of Garda trainees. I made this concession with the approval of the association and Garda management.
Amendment No. 37, which deals with arrangements for the Garda Commissioner to obtain the views of the public about policing matters and the state of crime, is not a new provision. When the Bill was considered in this House, it appeared as section 34. However, the suggestion was made to me in the other House that it should appear in that part of the Bill dealing with the role of the Garda Commissioner. Accordingly, it now appears as section 27.
Amendment No. 133 is necessary as a transitional provision with regard to the continuance in being of Garda disciplinary regulations under the 1989 regulations, although those regulations may be revoked in line with the provisions governing the drawing up of new regulations in this area. I envisage that there will be new regulations but I want to provide that some disciplinary regime will be in existence until new regulations are introduced.
Amendment No. 135 is related to the matter of the Garda Commissioner being made the Accounting Officer for the force in regard to the appropriation accounts under section 43 of the Bill. The responsibilities arising in that regard under section 18 of the Comptroller and Auditor General (Amendment) Act 1993 are expressed by that Act as applying to Departments or offices. It is doubtful if the Garda Síochána comes within the definition of those two terms, so it was necessary to make the amendment to the 1993 Act as provided for in the amendment.
We are very disappointed that legislation of this nature was rushed through the other House in the absence of debate on many amendments. It is undoubted that all of the last minute amendments introduced on Report Stage in the other House should have been introduced on Committee Stage, a point that was made time and again but not accepted. All the amendments, including those that were not accepted in the other House, should have been debated at length. In this debate, we can only debate the Government amendments as passed in the other House. We cannot have a vote on each of the amendments individually but must wait to have a vote on all the amendments. It is a farce.
As my party leader stated, the Bill should have been stalled for a maximum of, say, three months to invite an independent and respected panel of interested people with international expertise to review it and report back to the Houses of the Oireachtas. This would be, first, to assess the Bill fully and to address all the recommendations made by Mr. Justice Morris and, second, to assess whether the structures proposed for highlighting complaints against gardaí are in line with international practice. It is very important that we get this Bill right and the manner in which the Minister has ploughed ahead, without proper debate, is absolutely disgraceful. I would have expected better from the Minister, especially given that he was receptive to changes from this House when the Bill was initially brought forward. The Minister accepted some amendments from this side of the House.
It is a cliché to say that rushed legislation is bad legislation. I sincerely hope the objectives outlined will be realised but I question the constitutionality of some aspects of the Bill. I will not be surprised if this Bill is challenged in the years ahead, especially in areas where due process is deemed not to have been followed.
The Minister referred to amendments tabled by Members of the Opposition in respect of human rights and other areas. I am glad such matters were teased out in the other House. Those amendments were put forward by the Opposition in good faith and, if these were accepted, surely the least the Minister can do is to listen to and debate the amendments put forward on this Stage. These may also improve this Bill.
The manner in which the Bill has been handled is an absolute disgrace, especially as this is important legislation dealing with the Garda Síochána. This is the most important legislation since the foundation of the force. In that respect the Minster has made a serious mistake. I do not know whether it is the Minister's decision or that of his officials. This decision to plough ahead will haunt the Minister in years to come.
My colleagues will raise the substance of the amendments but it is important to put on record our distaste at the manner in which the Bill was handled in the other House, and the fact that we cannot vote on individual amendments. The amendments will have to be voted on in total, at the end of the debate.
I was going to begin by saying I spoke more in sorrow than in anger but it is more with a sense of ironic hilarity than either sorrow or anger that I rise. That the security of the State is in the hands of a Department that deals with parliamentary process in the way this Minster has allowed is not something by which I feel threatened. The level of incompetence is so great that I do not feel threatened by the attempt to play the spook. I feel more insecure because it has failed to do the spook job properly. The presumption running through this process is that the Oireachtas is an inconvenient obstacle to the rule of the Department of Justice, Equality and Law Reform. The Oireachtas is the best bastion the security of the State can have. Without a functioning Oireachtas, respected by the Executive, the State cannot be secure. That is why I am motivated more by ironic hilarity than anything else.
This House devoted an enormous amount of its time to a thorough, detailed discussion of this Bill. Even the Minister, who understandably gets impatient with the process sometimes, did not believe that any Member of this House was deliberately wasting time on this Bill. It was treated with the respect it deserved.
The Oireachtas was not treated with the respect it deserved by the Minister and the Department. The Oireachtas was the subject of a farce last week, with amendments appearing out of fax machines at a rate that generated vast quantities of paper in Members' offices and even greater quantities of confusion.
I am not a lawyer but I have been in this House long enough that I am not bamboozled by lawyers. The production of 138 amendments was an attempt to bamboozle. As the Minister has stated, these are not the most significant amendments.
The Minister knows the quality of the capacity for persistence of my colleague Deputy Joe Costello. If the Minister has agreed the Garda Síochána now has a specific purpose of dealing with immigration, are all past dealings in this area now of dubious legality? Does this invite legal challenges? Perhaps it does not but at this stage one takes Government advice on what is legal and proper with a grain of salt. I refer to the nursing home debacle and the scandal of the delay before the Morris tribunal was set up. The obfuscation by various people regarding what they knew, what information they had, what they did with it and why they did not deal with it, is most peculiar. If the Minister were to tell me he is categorically assured that the legislation is satisfactory, I would be sceptical, and the public is also entitled to be sceptical.
I can guarantee that some time in the future a major flaw will be detected in one of these amendments. I have been in and out of this House for 25 years and we have been embarrassed by errors in amendments in the past. Last week we spotted an error in the Commission to Inquire into Child Abuse (Amendment) Bill. This can only have been the product of rushed drafting. It was spotted by the plebeian footsoldiers of the Opposition in this House, after the great minds of Parliamentary Counsel's Office, the Attorney General and everyone else missed it.
That is what the Oireachtas does best — it looks at things without the protection of a sense of its own importance but with the belief that if the Members cannot understand it, there is probably something wrong with it. Sometime in the future some error will be found and some sanctimonious person, probably in the legal profession, will give us a lecture on how the Oireachtas did not do its duty. The Oireachtas is ready, willing and able to do its duty and it is the Government that did not do its duty in this rushed, hamfisted job. This is epitomised by the fact that there were errors in the groupings of amendments because it was rushed. Nobody is infallible or immune to the errors that come from being rushed. People in the background seem to believe they are infallible but we all know they are not.
The Minister may tell me my party supported this next point but that does not trouble me. I think student members of the Garda Síochána should be members of USI, like any other student. To be members of an ordinary student union when they are undergraduates would be a healthy experience for them. This would give them an injection of the reality of life rather than being confined to a particularly inward-looking trade union. It is a trade union which would be better off being part of the process of the Irish Congress of Trade Unions, as that would give it an injection of reality. We are not going to fall out over this matter.
I am glad there is an explicit assertion of the duty of the Garda Síochána to vindicate human rights. Perhaps we will not have a repetition of an episode a few years ago when correspondence to Members of this House was seized by the Garda Síochána because it was a letter from a garda about a human rights issue. It was opened by accident, gardaí seized all of the letters and used a letter as evidence in a disciplinary matter within the Garda Síochána. It was a letter to my colleague Senator O'Meara, who did not know the letter existed. This is all a matter of public record. Perhaps it will be accepted that the job of the Garda Síochána is to vindicate human rights and this sort of incident will not happen again.
I, many other colleagues and the Minister worked hard on Committee and Report Stages when this matter first came to our attention early this year. The Bill as first published had been in existence for a considerable period before it was brought to this House and on five separate occasions I had asked why it had not come before us. If it had, it would have ensured we had time to discuss the matter in its entirety. The Bill was dealt with in a serious and expeditious manner by this House and the Minister, who engaged with us. It is worth noting that some of the amendments in this first group are as a result of suggestions we made.
I wish to again clarify something I said earlier regarding briefing on the 130-odd amendments before us. When I asked one of the Minister's officials a straightforward question earlier today, I got a straightforward answer, which I appreciate. However, last week when I made a suggestion to the Leader, what I sought was that spokespersons would be provided with a written brief on the amendments so that they would know exactly the nature and scope of the amendments coming back from the other House. I regret that did not happen. However, when I sought information from an official of the Minister, I got excellent advice which gave me some idea of the points I should make.
If the second report of the Morris tribunal had not issued, what would have happened to this Bill in the Dáil and the Seanad? Had the report not been made, how many of the amendments before us would have been put? Is it not the case that whenever the second, third and fourth reports of the tribunal issued, they would, inevitably, lead to some form of amendment of this primary legislation? The rush referred to by Senator Ryan is not good for parliamentary democracy. The other House could easily have sat another week or beyond to ensure that the kind of scrutiny mentioned here was given the full weight we all like to see. As Senator Ryan rightly said, debate in this House — which is not the kind of party political pantomime that sometimes takes place in the other House — regularly highlights inefficiencies and glitches in a Bill that can be rectified. I regret that each amendment cannot be debated on its merit in this House over the next number of days, rather than the groupings we have here.
The Minister put forward the view on Committee Stage that one of the reasons the legislation should deal with the Garda Síochána as a whole was because our police force operates throughout the country and not like the police forces in the United Kingdom which have regional command structures. The first 15 recommendations of the second Morris report all relate to the inability on the part of the Donegal gardaí to follow orders, have a management structure in place or follow the letter of the management system and orders that came from Dublin. When I made the suggestion that we might need to consider a regional model of policing to ensure greater accountability, my suggestion was rubbished on the basis that it would not suit our policing conditions, the history of the force and so on.
In light of the first 15 recommendations of the second Morris report and given that the management structure of the force and the geography of Dublin to Donegal and many other places were a hindrance at the time, is it not time to reconsider this matter? This suggestion arises from comments I made on Committee Stage.
Many of the amendments in group 1 are welcome. The Minister has responded to a teasing out of the Bill on Committee Stage. Senator Ryan referred to the reference to "human rights", something we debated at length in this House. I also welcome amendment No. 37 which allows a greater model of discussion between members of the public and the force. This is to be construed following a paper the Garda Commissioner will ultimately publish.
The Minister must concede, however, that this is not the way to do business. We should not have to deal with the range of amendments that come from the other House in one fell swoop. We can only speak on 14 occasions to the groupings. This is not the way this House, traditionally, does its business, despite the fact that in group 1 the Minister has taken on board many important new amendments.
I am glad ample time is being given in this House to consider Report Stage and the amendments. Having been a civil servant, I do not like generalised attacks on civil servants. There is no basis for the assertion that officials in the Department of Justice, Equality and Law Reform somehow do not have respect for the Oireachtas and that they are anti-democratic in their ethos. That has never been my experience. Nor do they regard themselves as infallible. I regard those comments as wholly unwarranted.
On a lighter note, if the Union of Students of Ireland is a model for learning the realities of life, Senator Ryan has a different idea of reality to me.
I agree wholeheartedly with Senators Cummins, Ryan and Brian Hayes that it is manifestly wrong that this Bill should have been left until the 11th hour of this session and that it has effectively been guillotined through the Dáil and now through the Seanad in this fashion. When I was spokesperson on justice, equality and law reform in the Dáil, I repeatedly pressed the former Minister, Deputy O'Donoghue, over a four-year period on the urgent need to amend legislation to bring the regulations and operations of the Garda Síochána into the 21st century. Unfortunately we have had to wait for this weighty and detailed volume, which while it has many good ideas contains many proposals about which I have major reservations. Above all else, it is the guillotining of the legislation that appals me.
I agree with Senator Brian Hayes that had it not been for the volcanic and sensational revelations of the second Morris report, published three weeks ago last Wednesday, we would not have the amendments that have come through from the other House. Many of the amendments are good ones despite the fact that it is the wont of this Minister and this regime not to listen when valid, well-intended arguments are put forward on Committee Stage, not in an obstructive but a constructive manner.
Amendment No. 9 deals with section 7, which states, in subsection (1)(a), that one of the functions of the Garda Síochána is to provide policing and security services for the State with the objective of "preserving peace and public order". Unfortunately, it did not do so in Donegal. It created mayhem and public disorder. Another function, set out in subsection (1)(b), is "protecting life and property". It did neither in Donegal.
I welcome the section regarding vindicating human rights for each individual. This ensures a place for the amendments put forward by our colleagues in the other House and Senator Tuffy here. As the Minister said, there was a valid argument, but why Senator Tuffy's argument was not accepted in the first place is beyond me. I am glad it finally dawned on the Minister, by way of persuasion in the Dáil, that there was substance to it. Hence the reason for the deletion of section 7(4).
One of the functions of the Garda Síochána, as set down in section 7(1)(g) of the Bill, is "regulating and controlling road traffic and improving road safety". For how long have we been pressing for a designated traffic corps? I genuinely believe that assigning members of the Garda Síochána to traffic duties, such as speed checks, is a manifest waste of resources. Every day, I see three or four gardaí operating speed cameras from hidden locations. There is nothing wrong with trying to detect speeding — God knows we have enough carnage on the roads. Gardaí who have received two years of training in Templemore are tasked with sitting covertly in culs-de-sac and culverts, on byroads and high roads and behind hedges. It is a manifest waste of public resources for them to be assigned in such a manner. They have to use "hair dryers" to try to detect those who are driving at a speed of over 70 mph, or whatever the current kilometre equivalent is.
One would have imagined that this Bill represented a golden opportunity for the Minister for Justice, Equality and Law Reform to establish a designated traffic corps. I genuinely believe that such a corps could be trained in six months. I give credit to past members of the Garda Síochána who did the bidding of the State — they enforced the law without fear or favour — having received just six months of training in Templemore. They did their job much better than some of those who are currently assigned such responsibilities. It is a terrible waste of Garda resources that members of the force are being given the function of enforcing traffic regulations.
We do not have that many gardaí. When one takes into account wastage, sickness, resignations and retirements from the force, one will realise that the Garda Síochána has a core of approximately 12,000 members. The Minister, Deputy Michael McDowell, has given a commitment to increasing the number of gardaí, but I have outlined the reality of the current position. Just 12,000 gardaí are actually available for duty every day. The Minister has wasted an opportunity in that regard.
I welcome amendments Nos. 13 and 14, which amend the legislation so that it clearly prescribes that any prosecution must be brought with the explicit approval of the Director of Public Prosecutions.
One of this Bill's major omissions is it does not provide for the redesignation of a Garda investigation. An amendment to that effect could have been included with the amendments under discussion. I would like to refer to a specific redesignation, which occurred in the McBrearty case in County Donegal. The Minister has admitted that the members of the McBrearty family, who were totally innocent, were grossly abused during the investigation into a crime in which they had absolutely no involvement — good, bad or indifferent. The designation of the investigation was altered from an investigation of a road traffic accident, in December 1996, to a murder inquiry. The McBrearty family was not informed when the investigation was redesignated in August 2002 as an investigation of a road traffic accident.
I watched the coverage on TV3 and RTE last Friday of the Minister for Justice, Equality and Law Reform's announcement at a press conference of his intention to introduce new regulations for the transport of cash shipments by companies like Brinks Allied and Securicor. I welcome the regulations, which were drawn up in the wake of a spate of robberies, and I commend the Minister and the Garda Commissioner on them. Even though journalists had been told not to ask about anything other than the matter under discussion, near the end of the press conference the Minister was asked out of the blue about the redesignation of the McBrearty case. The Commissioner, who took up the question, said that although the case was redesignated as an inquiry into a road traffic accident in 2002, he was not made aware of that in his then capacity as Deputy Garda Commissioner until 2004. I watched the Minister's tell-tale reaction to the Commissioner's comments. It seemed to me that the Minister was simply agog as he listened——
——because the Commissioner was giving inaccurate information. I do not know what the Minister said to the Commissioner when he spoke to him privately afterwards, but it is obvious that he said something to him. The procedures for the redesignation of a case are quite clear. Such a decision is taken in the first instance by the local district officer. The matter is then referred to the inspector for his or her observations. It is then referred to the superintendent.
I cannot reply to Senator Higgins's comments while remaining in order. It is not in order for the Senator to waste time by discussing matters which are not related to the amendments under consideration by the House. I was told that the Seanad was unhappy with the use of a guillotine in the other House. That is a matter for the other House. The guillotine was needed in circumstances of massive time-wasting. The Senator is time-wasting now.
This is not time-wasting. I will conclude what I am saying about this group of amendments. The procedure used to redesignate an offence goes right up to the Deputy Garda Commissioner's office. A redesignation can only be allowed after it has been considered at that level. In this case, the redesignation was on the desk of the then Deputy Garda Commissioner, Noel Conroy, who is the current Commissioner. That is for another day. We await further revelations in that regard.
I welcome the change in terminology from "may" to "shall" in section 17 as a consequence of the acceptance of amendment No. 32. Section 17(1) now states that "the Minister shall, by regulation, establish a code of ethics that includes standards of conduct and practice for members of the Garda Síochána".
It is an absolutely crucial change. I would have liked to have seen an indication of the thinking behind the code of ethics. I know the Garda Commissioner will be assigned responsibility for preparing the draft code of ethics. Given the public furore about the failure of some members of the Garda Síochána to perform their functions, I would like to know whether the Minister has consulted the Garda Commissioner about the Commissioner's intentions when drawing up the code of ethics. What kind of draft or blueprint will be prepared? It is a matter of current public debate.
I agree wholeheartedly with the argument made by my colleague, Senator Ryan, about allowing student gardaí to become members of organisations like the Union of Students in Ireland. A valid point was forcibly made by Professor Dermot Walsh in the wake of the publication of the report of the Morris tribunal. He said that some kind of injection of collective thinking is given to student gardaí in Templemore during the induction process and, as a consequence, they emerge from the Garda College with a paralysed state of mind. Mr. Justice Morris aptly and colourfully referred to this phenomenon in his report when he spoke about the Garda culture of circling the wagons. In other words, when members of the force are in trouble, their colleagues adopt an approach of "all for one, one for all". I do not have a problem with such an approach in the Army because it is a collectivity, but something should be done during the Garda training process to tackle that culture as it is found within the force.
The model that is used when Army cadets are being trained should be embraced in the Garda Síochána. Cadets are allowed to study in institutes of technology and universities so that they can live in the real world with real people, but trainee gardaí have to remain in the cloistered and monastic setting in which Garda induction takes place in Templemore. The training given to gardaí is one of the roots of the Garda Síochána's problem, which manifests itself in the culture of circling the wagons. That culture, which is quite prevalent within the force, was referred to graphically by Mr. Justice Morris.
I would like to discuss the amendment which relates to trade unions. Nobody wants to see splinter groups emerge as they did before. However, I continue to have worries about the Government's dealings with Garda representative associations. Can the Minister guarantee the House that this legislation will prevent a recurrence of the "blue flu" debacle of some years ago, when the members of the force made a collective decision to stay at home on a particular date, thereby leaving the civilians of this State totally exposed? Can the provisions of this Bill guarantee against a further eventuality of that nature?
I welcome amendment No. 37, which inserts a new section 27 in the Bill. Section 27(1) gives the Garda Commissioner responsibility for making "arrangements for obtaining the views of the public about matters concerning policing and the state of crime". Given that the Bill has been in drafting and gestation for so long, one would have expected it to indicate the types of forum which will be established. Who will the fora consult? Who will be called in? What degree of dialogue will take place? What reaction can we expect? Will the fora simply be talking shops? Will they have real strength, real power and a meaningful existence? I will reserve my comments for the other parts of the Bill. I endeavoured to be as relevant and certain as possible and, by and large, I have been in regard to dealing with these issues.
As I said, most sections of the Bill are extremely good. There are major problems in regard to the ombudsman and obduracy of the Minister. There are major problems in regard to other aspects of the Bill, which we will get to in due course.
I welcome Senator Higgins back to the House. When I was in my office, I heard the word "guillotine" being used. The word "guillotine" was never mentioned in regard to this House. The matter was raised this morning on the Order of Business, when the Senator was not present. I said there would be seven and a half hours of debate and that we would sit Thursday night, Friday night and all next week, but the word "guillotine" was never mentioned in this House. I ask Senator Higgins to withdraw his remark, which is a slur on me as Leader of the House. I was the one who dealt with the issue this morning when the Senator was not present. All the other Members were present, and it is on the record of the House.
In deference to Senator Higgins, he would not have been aware that during the passage of this Bill through the House, unprecedented time was allowed for debate to tease out the issues. Senator Cummins will bear that out. In fairness, I have not seen a Bill where the Minister was so amenable to taking on board the opinions and views of all Senators. Many of them were reflected in amendments made in this House on Committee Stage arising from the Second Stage debate and, subsequently, on Report Stage. It would be unfair to state that ample time was not allowed to debate the Bill and that there was not an ample response from the Minister in that regard.
On the point made about the Bill being discussed more on Committee Stage than on Report Stage, I could not agree more with the Senator. However, blaming the Minister or his officials is not correct, it is misguided. It is a matter for each House to decide how the business is dealt with. I welcome what the Leader said, namely, that there is no guillotine on the Bill. It will be debated for as long as is necessary.
On the amendments, most are of a technical nature and do not need much elaboration. Senator Higgins drew attention to one amendment, on which I support him. This relates to the code of ethics in section 16. I am pleased it is mandatory and that a code of ethics will be established to include standards of conduct and practice for members of the Garda Síochána. The mechanism for doing so is fair and practical. In any group of 12,000 to 14,000 people, everyone will not conform to the best standards to which they should aspire. Therefore, there is a necessity to introduce a code of ethics, which I welcome. This was discretionary in the Bill, but it was made mandatory in the Dáil. It is now back before us and I welcome the change, which will be to the benefit of members of the Garda Síochána in the future.
I have no difficulty allowing members of the Garda Síochána in training in Templemore to be members of the GRA. However, if the force is run properly, there should be no necessity for representation at that stage. Nonetheless, the provision exists. As Senator Higgins said, gardaí provide a fundamental public service, and anything that detracts from that by way of union representation or whatever is a distraction we should try to avoid. I hope we will not see a repeat of the "blue flu".
The Morris tribunal has given rise to many of these amendments, and in that regard I compliment the Minister. Making these amendments to the legislation before the recess, rather than deferring them for three or four months, is the right move. If he had taken that course of action, he would have been open to criticism in the House, which would have been justified to a certain extent. As Senators said, when the further Morris tribunal reports are published, they will probably give rise to further refinement and changes in the Bill. There is nothing wrong with that because it is an ongoing process. These changes are not set in stone. It is the best legislation as perceived today and constructed by the Parliamentary Counsel, the Minister and his officials. By going through both Houses of the Oireachtas, it should be commensurate with the needs of a properly-structured and efficient service provided by the Garda Síochána to the public at large. As time goes on, issues will arise which will lead to changes being made.
The Minister has been very amenable to suggestions made. The House came together on some of the issues and, where there was a consensus, he took the issues on board. This is reflected in the Bill, for which we should commend the Minister.
I, too, would like to have had more time for a combined Oireachtas discussion on this important Bill. The Minister is constrained by the time available to him. Like Senator Mansergh, as a simple former civil servant, I cannot see why the time could not have been extended because there is value in a close committee-style scrutiny of complicated matters. Having said that, the Minister engaged with us fully on the previous Stage in this House. A number of the amendments that appear here are in response to issues raised at the time.
It would make the best the enemy of the good for the Minister to hold fire now on this matter. There is a tail wind in the Morris report and it would be like throwing away the spinnaker if he stopped now. I have a firm belief in the ability of great organisations to resist change and get a second wind. Having said that, I would like to refer to general points raised with which I agree. First, this could be a centralising matter. On the other hand, it should allow for devolved structures. I would not be in favour of having different police services. It is important that the whole structure is flattened and that there are devolved structures for people to raise issues, where comparisons can be made and recognition taken of the different policing needs of different communities and areas. I am seized of the point made by Senator Higgins about making the education of young gardaí like the education of others with whom they would be working. If that means being members of the USI, good luck to them. It might be managed by delaying the time of attestation or whatever.
On the amendments, I welcome the introduction of the provision relating to human rights and the fact that the code of ethics is made mandatory. A sufficient mechanism for consultation is set out in the Bill to ensure that the Garda Commissioner has enough help to prepare a draft of this for the Minister. It is the Minister himself who will produce the code.
One set of amendments does not seem to be included in the first group, where I expected to find them. These are amendments Nos. 109 to 114, inclusive. They are technical amendments and I cannot find them anywhere else. The amendments affect the same item, where the word "member" is deleted and "person" is substituted. I have no other comment on that grouping of amendments. I thank the Minister for taking on board many of the points made in the course of the debate.
I identify with Senator Mansergh's comments. The notion that the Department of Justice, Equality and Law Reform and civil servants are conspiring to bear down on the Oireachtas and sweep away rights is utterly untrue. One only needs to examine the procedures followed with this Bill.
When I was appointed Minister for Justice, Equality and Law Reform in 2002, my Department commenced planning for a Garda Bill in the autumn of that year. I inherited a proposal for an inspectorate body that would function in the fashion of an ombudsman. We in the Department discussed this at great length and it was my view that the entire relationship between the Executive and the Garda Síochána should be re-stated in clear and modern terms. Many of the provisions in the earlier part of this Bill about statements of policy, directives and strategic planning for an Garda Síochána touch on this and did not exist before.
I wished to emphasise at the time that the Oireachtas is the body to which the Minister for Justice, Equality and Law Reform must be accountable with regard to police functioning, which is an extension of the Executive power of the State. I also looked to clearly state in the Bill that the Oireachtas and the Minister is in charge. One of the reasons for this was the difficulties encountered by me in my time as Attorney General in getting information necessary to discharge the functions of the office, such as advising the Minister of the appropriateness of his actions and conducting civil proceedings on behalf of the Irish people.
It appeared to me that from the days of Peter Berry, there was micro-management of the police in every single respect, through officials of the Department being made Commissioner of an Garda Síochána and a very clear pyramid of authority which went directly to the Secretary of the Department of Justice. It was micro-management of a highly structured kind of policing in Ireland by a Department. By contrast, in later years the barometer had swung almost completely the other way to the point where Mr. Justice Morris found that the Department had become almost isolated from the policing function. This may be an over-simplification and it is not easy to deduce how it happened over the years but it was exacerbated when the Attorney General of the day ceased to be the prosecutor and the Director of Public Prosecutions became an independent prosecutor. The view took hold in the Department, among the Garda and in the Office of the Director of Public Prosecutions that the relationship between the Garda Síochána and the Director of Public Prosecutions was at a level equal or superior to the relationship between the Department and the Garda. Part of this process led to the events being dealt with by Mr. Justice Morris, which I do not want to deal with in detail.
When I commenced my term as Minister in the Department of Justice, Equality and Law Reform, re-stating the relationship between the Department and the Garda became a matter of huge importance. Instead of proceeding with complaints procedures against the Garda Síochána as a response to the situation existing then, the Department embarked on an ambitious programme to re-state the constitution of an Garda Síochána in its entirety.
Having worked on this from September 2002 to summer 2003, the heads of the Bill were published in summer 2003 for a public consultation process. The Bill was also sent for drafting. The Bill was introduced in this House because of pressure of business in the Dáil. This facilitated reflective debate on the passage of the Bill through the Seanad. I pay tribute to the Members of the House for this, as the debate was constructive and without time wasting or negativity. The entire passage was constructive. The Bill was extensively amended in the course of the debate, with the inspectorate idea being introduced as it became necessary to respond to the initial findings of the first report of the Morris tribunal. This ensured that something would be in place to deal with the collapse of authority and morale in an Garda Síochána.
The Bill was extensively debated on its introduction in the Dáil. It received 21 hours on Committee Stage and the Government provided for a further 13 hours on Report Stage. Regrettably, two of the 13 hours on Report Stage were spent wrangling over whether enough time was provided. I will not criticise another House in the Seanad, but I was disappointed with this. A proposal to extend the sitting for two hours to compensate for lost hours was rejected. Walk-through divisions were called on Private Members' business, which used up more time.
Ultimately, a situation existed where huge amounts of time were wasted. A technical amendment being dealt with now, which moved a definition on a page because it was not in alphabetical order, was debated for half an hour. Much filibuster-type speaking occurred detailing what had happened, for example, at residents' association meetings in Chapelizod the previous week. I am glad to return to the Seanad in circumstances where the Bill will get a fair hearing.
With regard to the procedures in this House for a Bill that returns from the Dáil, the rules are a matter for the Seanad. They are not made by me. Enough time is provided and I repeat what the Leader has said about sitting indefinitely, if necessary, to get the Bill right. On Committee Stage in the Dáil I indicated that I would sit all night until dawn if necessary to deal with all the proceedings.
Business had to be continued. With regard to a point raised by Senator Maurice Hayes, I could have accepted the Labour Party's Private Members' business proposal, which would have deferred consideration of the Bill until a commission on policing had reported in 18 months' time. If I had done this, the next general election would be approaching with no work done on Garda reform, no change coming about, probably more bad news coming from the Morris tribunal, more paralysis and no start made on addressing the issues we now know require major reform.
Many other issues arise, such as a regional command structure and the necessity to avoid switching people unnecessarily. I encountered this recently with a person being promoted by Government. His biography, given to the Government as support material for his promotion, indicated that at the time he was made superintendent he was transferred to Cahirciveen for 11 months and then brought back to Dublin. Although I am sure he is a wonderful man and I will say nothing critical of him, I do not believe that his short stay as a commanding officer in Cahirciveen could have led to good policing. This churning process is not desirable. I do not want to deny promotion rights but one of the issues that must be addressed is the need for greater stability and continuity in policing particular areas. If people walk into an area from somewhere else and walk out again in a relatively short time, the chance of them having a clear view of the merits or demerits of the force and the requirements of their area are reduced.
Senator Ryan referred to Garda training. It is a two-year process, which involves extensive training in stations, community work and so on. It is not similar to joining a Jesuit seminary where one is hidden from humanity in the middle of nowhere. Some 24 months are devoted to the entire process whereas six months is set aside for the equivalent process at Hendon, the British police training college. The jury is still on out on whether we are overly generous in that respect. The training of Garda members is complicated but, given that such time is provided, it should be used to maximum effect and a good, liberal education should be offered consistent with the needs of a disciplined force. It is not a commune of independent minded people who sit around on bean bags to discuss the future of the world.
The Army is one example. During an impassioned contribution to a Private Members' debate in the Dáil, Deputy Costello pleaded with me to transfer elements of Garda training to a new campus in his constituency at Grangegorman. However, the public relations aspect of that would not be good. It would have been better to use the description, "north inner city Dublin".
The traffic corps was mentioned. Senator Higgins and I have diametrically opposite views on what such a corps should entail. He argues that non-members of the Garda should carry out traffic policing duties. My officials and I examined that possibility carefully but we concluded that a force other than the Garda carrying out drink driving arrests and setting up road blocks would create major problems. It would need its own ombudsman commission and barracks. Where would arrested people be taken? Would the force have stations throughout the country or would it share Garda stations?
We decided the traffic policing function would be retained by the Garda and an assistant commissioner is in charge of establishing the traffic corps as a separate division within the force. At least 600 of the 2,000 additional recruits will supplement the existing 500 road traffic complement of the Garda so that the corps will number approximately 1,200. The purpose of this is to increase road safety.
I make no apology for the need for a respected, disciplined force with a proper command structure to ensure road safety. I agree gardaí should have nothing to do with using speed cameras, issuing tickets and processing penalty points but proper policing of our roads contributes to proper security and improved Garda intelligence generally. It would be counterproductive to hive road traffic duties away completely from the Garda. It would not be good to deploy two separate forces to carry out this function in circumstances such as ours. If one wished to go down that route, one would have to think carefully about it but this is not the time to do it. A traffic corps is being established, which will comprise 1,200 members by 2007. It will be progressively beefed up to make the enforcement of road traffic law an integral part of the Garda's activities with adequate resources allocated to it.
When Senator Brian Hayes referred to structures and regional policy, he argued for the re-establishment of the DMP but such a rigid force within a force approach on a regional basis would not be desirable. However, I take Senator Maurice Hayes's point that we must have stability and continuity and we cannot have churning and high turnover rates in respect of positions of authority if a decent quality of policing is to obtain.
The legislation is important and it is a necessary condition for the proper reform of the Garda but it is by no means sufficient in that there must be absolute change in management practices, attitudes and accountability measures. While this is a trellis on which the rows of a reformed Garda Síochána will grow, the legislation will not deliver the end result. It is important that the Garda should undergo a revolution in management style, attitudes and so on. It will begin in Templemore and end in the top room at the Phoenix Park. We are in a process of change throughout the force.
The change must begin now. Waiting for 18 months, as suggested by the Labour Party in the Dáil, or putting off the evil day to address this issue, is no good. The Garda needs change now. As Senator Maurice Hayes said, the wind is with us and the sails are full to undertake change now. If the sails are hauled down to reconsider the entire project and address it in the run up to the next general election or following the next general election, we will have lost at least two years of vital importance to the Garda Síochána and will have damaged the force significantly. While the legislation may not be perfect, it is as good as I can make it. The time has arrived to get on with the process of change and if an issue rears its head, which has not been addressed in the legislation, it can be dealt with. It will not be the end of the world.
It has been suggested that promotions within the Garda are political. I am totally unaware of the party political allegiances of any senior member of the Garda Síochána. I do not know what are their sympathies. I have never had a discussion nor have I had an intelligent reflection on that subject. I am wholly unaware of their political outlook.
The Bill, for the first time, provides for an independent system of promotions within the Garda with external people constituting the majority of every promotion board for sergeant, inspector, superintendent and chief superintendent. However, the three most senior appointments are dealt with on a discretionary basis by the Government. I assure the House I have gone through the process of filling the most senior position and party political attitudes had nothing to do with it but the Government of the day must have confidence, in the last analysis, that it is making the correct decision and it cannot hand over the process to somebody else. If one is in a position to fire somebody, one should be in a position to hire him or her and if one could not fire him or her, it would be a sorry day. I make no apology that the present system gives the Government a little discretion regarding the Commissioner and Deputy Commissioner posts. Apart from that, the Bill will make it clear that the promotional system is operated independently and transparently with outside majority participation at every stage of the promotion ladder.
There have been people in the Garda Síochána who believed that somehow the Minister of the day influenced these decisions. People have come up to me during divisions and stuck notes in my pocket and so on, saying "remember so and so". This behaviour crosses the political divide. Every one of those notes goes into the wastepaper basket as soon as I get home.
Likewise, people think that the Minister transfers gardaí from one place to another around the country. No doubt that happened in the past but I have never had any hand, act or part in moving a garda from one place to another or anything to do with promotion. I will not do that. This legislation will bring about a new dispensation in regard to promotions, transfer and so on. Everything will be above board and transparent. The Garda Síochána deserves no less.
The second group of amendments consists of amendments Nos. 4, 7, 8, 26 to 31 inclusive, 125 and 128.
There was a lengthy discussion in this House and on Committee Stage in the Dáil on the provisions in the Bill dealing with what were originally termed "volunteer members" of the Garda Síochána. During the course of the latter debate I undertook to consider further some of the points raised and strongly pressed by some Deputies, particularly Deputies Jim O'Keeffe and Costello.
These amendments arose from my consideration of those issues and were introduced on Report Stage. We changed the name from "volunteer members" to "reserve members" because some people said they might have to be paid gratuities, expenses or allowances to carry out their functions. The term "volunteer" suggested they would never receive recompense for anything they did. That was a reasonable change.
The point was made that I was casting matters too rigidly in saying that the reservists would have all the powers of a member of the Garda Síochána in every circumstance, no matter what it was. Deputy Jim O'Keeffe argued strenuously that this should be qualified in some way and that there be a means to reduce powers for reservists in certain circumstances or to declare certain matters off-limits to them.
At the time I said I had not come across any power or function likely to be given to a volunteer member, as the term then was, which it would be inappropriate for him or her to carry out. That decision should perhaps be left to the judgment of the Garda Commissioner, in light of the range of duties that could be assigned to reservists.
Therefore, I proposed the insertion of a new subsection (5) to allow the Commissioner determine the range of powers to be exercised and to tailor them to duties to be carried out by reserve members whose primary function is to assist gardaí in exercising their duty in particular situations. That change was made in response to an Opposition objection and proposal.
I had originally provided in the Bill that a 12-month moratorium should occur between the Bill being brought into effect and the possibility of a reserve being created but Deputy Jim O'Keeffe argued that proposal was surplus to requirements. He thought if the reserve force was a good idea we should not postpone it in that way.
The implementation of this Bill will be quite complex and I do not see why, if we are establishing a reserve, we should back load and defer it to another day. The amendment removes the 12-month wait. This is not perceived in any way as a substitute for the Government's commitment to increase the strength of the Garda Síochána to 14,000. That will happen by 2007. I want to make it clear that the 12-month moratorium is being removed at the request of an Opposition spokesman, not at mine.
Amendment No. 27 is a drafting amendment which reflects a drafting convention preferred by the Parliamentary Counsel that a person "performs" rather than "exercises" a function.
However, my party's stance is to support the reserve force. We welcome the change from "volunteer" to "reserve" as a sensible one. People want gardaí to be visible. The reserve force may provide a more visible presence on the streets and help gardaí carry out their duties.
We can learn from what has happened in other police forces around the world in regard to community policing and reserve forces. The experience has been positive in several places, including the United Kingdom. We were in London recently to look at the system where it works. The permanent police force there complimented the reserve officers.
I note from these amendments that the Garda Commissioner has already put to the Minister proposals for training for reservists when appointed and regulations to be made concerning their recruitment. When will these proposals be published? I would be interested in seeing them because I asked about this issue when the Bill went through this House.
There might be retired gardaí, members of the FCA, the Civil Defence and others who have some training in regard to discipline and so on. Will the reservists have the same two-year training that ordinary members of the Garda Síochána receive or what is the position in that respect? I am concerned about the prospect of giving the reserve force the same powers, duties and immunities as the ordinary members.
Senator Higgins mentioned the same point in regard to the traffic corps. What will be the position of reserve members who deal with summonses, drunk driving and so on? They will assist a garda so the arresting officer would have to be the permanent member of the force. What happens when it comes to giving evidence, and the reserve member goes into court to support the permanent member of the force? I presume the reservist would be remunerated for having to attend at court. I would like that area to be teased out.
The change of title from "volunteer" to "reserve" is a good one and I am happy that the Minister has taken on board some of the amendments tabled on this matter in the other House, especially by my colleague, Deputy Jim O'Keeffe. I remain concerned, however, about the matters I have raised.
I too welcome the introduction of a reserve force. It could be very important, particularly in regard to community policing. This is especially so of the point the Minister made about continuity of contact. These people are more likely to be recognised in the community because they are likely to be older people with time to give to this work.
I am glad the Minister proposed the amendment which enabled the commissioner to specify or restrict their range of activities. One could not imagine these people driving Garda vehicles or being armed. Their training must be tailored to what they do. One would not imagine that someone doing that out of public spirit would be able to give up two years. We will have to have a different sort of training. However, on the Patten commission, we were extremely keen that there be a part-time reserve, the main purpose of which was to anchor the police and give it contacts in local communities. I commend the Minister on that.
I made no disparaging comments about individual officers of the Department of Justice, Equality and Law Reform, which is a corporate entity with a culture of its own. I know many people who work there. If people find out whom I know there, that will probably end their promotion prospects. Nevertheless, those whom I know there are the same as the rest of us. This is nothing to do with individuals. It is a culture and corporate ethos that has been there for as long as I have been here. When the Minister described the Peter Berry period, he described what I believe still to be the residual view there. Anyone who deals with the extraordinary immigration service and its two hours a week on the telephone knows it is still unique in how it deals with the rest of the world. I was not attacking individual civil servants. I do not do that, and I was not doing so in this case; I was talking about the "entity", if I might choose a neutral word.
On the amendments, I will not try to rejig what we did months ago. I very much identify with what Senator Maurice Hayes said. Properly constituted, defined and trained, a Garda reserve can be a great entrée into communities — the best possible way for the Garda force. I am a little worried about amendment No. 37.
I apologise. It is amendment No. 31, according to which the Garda Commissioner may determine the range of powers to be exercised and duties to be carried out by reserve members. Does he have to consult anyone? It is rather bald as it stands. I would not want to take from the Garda Commissioner his executive functions, but in the context of legislation trying to put together a structure and ethos of collaboration and modern management, the Garda Commissioner, apparently on his own, without reference to the Minister, the Department or anyone, may determine the range of powers to be exercised and duties carried out. I would hate that to be done without agreement and without its being at the initiative of the Garda Commissioner. That would be micro-management if it were the Department of Justice, Equality and Law Reform, if I am permitted to mention it. If the Minister did that, it would be wrong.
However, to leave it to the Garda Commissioner, apparently without any need to consult anyone, is not a great idea either. It is not my biggest problem with these amendments, but it is a genuine issue that I hope the Minister might at least briefly address by saying what he thinks will happen. As it stands, it is extraordinary. While the reserve gardaí are on duty, they will have the powers, immunities, privileges and duties of any other member of the Garda Síochána. I would rather the Garda Commissioner to be obliged to take some advice on this before making such decisions.
I agree completely with Senator Maurice Hayes that the big issue, also mentioned on Committee Stage by Senator Cummins, is that many members of the existing ranks regard this as some sort of effort to bypass or replicate them or produce what was ineloquently described as "yellow-pack" policing. Nothing could be further from my mind. I am talking about the new Ireland of today, in which the sergeant will not live with his wife in the back room of the station. That world is gone for ever.
Nowadays people commute 30 miles to work. If they commute to police Donnybrook from Ashbourne in County Meath and points west and north, in a sense the Garda Síochána will be in danger of deracination — having its roots removed — so that it floats above the community rather than being of it. Senators may find the idea of Donnybrook being policed by residents of Ashbourne strange, but the same applies to both the wealthiest and the least wealthy communities in Ireland. Is the Garda Síochána to have a presence in the least wealthy communities too? We must ask ourselves that question. Particularly where there is deprivation and exclusion, there should be closer links between the Garda Síochána and its functional area.
I know that all my words in this House are carefully noted by the Garda Representative Association executive and so on. This will enrich the experience of being a policeman in Ireland. It will not deprive any member of trade union leverage or anything else. It will have exactly the opposite effect, making the lives of full-time gardaí more rewarding, so that they have available to them the resource, the roots and the local connections a system of reserves will bring. I really do not believe that it is the threat perceived in some circles to their leverage, status or trade union clout.
I honestly believe that quite the reverse is the case. The absence of a reserve in this State compared with Northern Ireland would, if left unchecked, widen the gulf between the Garda Síochána and the community at a time when we want to narrow the gap. I am strongly of the view that it has a positive potential in the interest of every single member of the Garda Síochána, particularly the full-time members.
When we started, section 14(3) simply stated "While on duty, a volunteer member has the same powers, immunities, privileges and duties as a person appointed under section 13 to the rank of garda". That was baldly stated; they had every single power. I was roundly told on several occasions that it was too wide a proposition and that one did not want reservists given every power while on duty as of right that a member of the Garda Síochána has. I was told that I must qualify that in some way.
The real question was how I should do that. That broad statement was made subject to subsection (5), which gives the Commissioner the right to determine the range of powers to be exercised and duties to be carried out by reserve members. It states not that he must do it but that he may do so. He can leave it if he likes as in subsection (3) or he can delimit it in various ways. We have obvious examples, for example, whether one wishes members of the reserve to act as immigration officers, to carry firearms, or to be drawn into escort duties on cash transit and so on. There are plenty of matters in which the Commissioner should be given broad discretion to narrow the applicability of his reservists. This formulation is about as good as it gets.
Senator Ryan has rightly asked whether the discretion is too broad and whether the Commissioner should be required to consult the Minister of the day or gain his or her consent. I wanted to be flexible, since I believe that an issue will arise on some occasion. Fairly broad discretion must be built in. Section 15(1) states: "The Garda Commissioner may, subject to subsection (4) and the regulations, appoint persons as reserve members of the Garda Síochána to assist it in performing its functions." The regulations are there as an overriding constraint on the Commissioner. In addition, Members should be aware that the Commissioner is not totally free in that he or she must provide an annual policing plan and a statement of strategies and must also comply with specific directives given by a Minister. There is plenty of room for a nuanced approach to this and it is not the case that a blank cheque is being offered to the Commissioner.
The third group consists only of amendment No. 51 which deals with closed circuit television, CCTV, systems. I brought forward a Report Stage amendment in the Dáil which provides for the installation of CCTV equipment to allow for the recording of data in two sets of circumstances.
I will briefly explain why this amendment was introduced at such a late stage. During the past year, the Secretary General of my Department and I have been concerned about the slow roll-out of CCTV and have found that the current arrangements are inadequate and ineffective. We decided a different approach must be put in place and that CCTV had to be kick-started across the country. In particular, we concluded that provision should be made for community-based CCTV systems, such as have operated in Moyross in Limerick, subject to proper safeguards.
In that context, I asked the departmental officials who were dealing with that particular project to seek the advice of the Office of the Attorney General as to whether a statutory power was required to enable me to allow persons other than gardaí, community groups in particular, to operate CCTV. It was decided that such a statutory provision was required and that it would be safer to devise a statutory power that dealt with both Garda and community CCTV.
The first category relates to the installation and use of such equipment by the Garda Síochána for its own purposes connected with the functions set out in section 7 of the Bill. It also covers a situation where the Garda may wish to use the services of outside contractors with expertise in this field under direct Garda supervision and control. Outsourcing seems to be the new buzz word in many of these areas.
The second situation that is envisaged relates to the installation and operation of community CCTV systems which are grant aided by community groups. I launched an initiative in this regard earlier this month which provides for grants for individual installations of up to €100,000, and the same again in RAPID areas, for approved installations which comply with the scheme operated by the Government. The purpose of this initiative is to provide in law for such recording to be conducted in public places with the aim of preventing, detecting and prosecuting offences.
There are areas where the local chamber of commerce might decide that it could operate such a scheme and would apply for grant aid to do so. On the other hand, there are particular areas such as Moyross where a community-based CCTV system has brought a great sense of security to a community in the knowledge that activity in particular estates is recorded. That has been very successful. What worries me about this, however, is that local vigilantes might set up such a system. This amendment provides for a prohibition on such activity unless one is authorised to set up such a scheme. I do not want do-gooding vigilantes taking over the surveillance of their own areas.
The proposals I set out in the new section are in line with our obligations under the European Convention on Human Rights, which the Attorney General has advised requires that such recording should be authorised by law. They are also in conformity with the provisions of the Data Protection Act 1988. It must be noted that although the restrictions in that Act on the processing of personal data do not apply to the Garda Síochána where the purpose of such processing is the prevention, detection and investigation of crime, the Act still applies to data controllers even when the restrictions of the Act do not apply.
The provisions of the amendment take account of this situation. In line with the Attorney General's advice, I have provided for a proper mechanism to allow the Garda to enter into contract arrangements with outside firms for the installation and operation of CCTV systems on its behalf and subject to its control. This section also provides for the installation of CCTV by community groups, subject to certain checks and balances having particular regard to privacy considerations.
In order to provide some context for the proposals, I will briefly outline the background. At present there is no legislative basis for the operation by the Garda or local communities of CCTV. The issue of evidence derived from Garda CCTV has been raised in criminal trials but the legality of Garda CCTV does not seem to have been challenged or been the subject of any adverse finding. Judgments could be regarded as implicitly supportive of CCTV such as that in the case of Mitchell v. the Director of Public Prosecutions which was reported in 2000 in Irish Law Reports Monthly. Footage from non-Garda CCTV has also featured in recent Supreme Court decisions, Bradish v. the Director of Public Prosecutions and Dunne v. the Director of Public Prosecutions.
In April this year, my Department sought advice from the Attorney General as to whether legislation is required to regulate the use of CCTV in public places by the Garda and community groups. This was in the context of the initiatives I mentioned earlier. The Attorney General advised that, subject to confirmation with the Office of the Data Protection Commissioner, the Garda Síochána and local authorities — in the case of local community groups — are data controllers for the purpose of the Data Protection Act 1988 and are therefore the subject of section 13 which allows for codes of practice to be agreed with the Data Protection Commissioner and for their elevation to the status of statutory instruments. These codes of practice will regulate working with CCTV but would not authorise CCTV themselves. The Office of the Data Protection Commissioner subsequently confirmed this position and supported the proposal to place the operation of CCTV on a statutory footing.
In addition, in order to satisfy the requirements of Article 8 of the European Convention on Human Rights that the interference with the rights of privacy of individuals recorded by CCTV is in accordance with law, it was necessary to provide in legislation for the conditions and circumstances in which CCTV might be put in place. Failure to do so would mean it could be regarded as a disproportionate and unlimited power.
As the operation of surveillance for the purposes of crime prevention, investigation and prosecution is an executive function of the State, in order for it to be carried out on the authority of the Government, legislation should provide for the delegation of the function and for an authorisation system which would enable the Garda Síochána to supervise the operation of the system and to withdraw such authorisations as necessary. In the latter regard, the aim would be to prevent those private parties, be they community groups or otherwise, who have inadequate controls in place or who breach an individual's right to privacy from continuing to record image data. The provisions in this new section give effect to this advice and have been inserted as a new section into chapter 4 of the Bill which has been re-titled, "Co-operation with Local Authorities and Security in Public Places".
Subsection (3)(c) of the new section 38, as it applies to local community-based CCTV systems, links in with the joint policing committees provided for in section 35. I could go into greater detail but the remainder of the section is self-explanatory.
This is a new section that was not debated in this House. I am not even sure if it was reached on Report Stage in the other House. I cannot accept the Minister's explanation that the question of provisions regarding CCTV have only now arisen in regard to a Bill which has been in gestation for two years. The mind boggles in this regard because CCTV has been in operation for a considerable time with pilot projects in place eight or ten years ago. One of the initial pilot projects was supposed to take place in my own city but this never came about. It is disgraceful that an entirely new section was introduced on Report Stage in the Dáil.
There are a number of questions in regard to this section and the Minister touched on only some of them. They include issues of staffing, monitoring, the controls that are available and the retention of footage. It is utterly undesirable that the lives of innocent people should be exposed. The Minister needs to provide further explanation in regard to the retention of CCTV footage and the controls in this regard. He dealt with some aspects of this but we are talking about a new section which should have been debated at length in both Houses. They way in which this has been included willy nilly is totally unacceptable. The Minister "shall issue guidelines" to the Commissioner regarding the supervision and control of the monitoring. What type of guidelines? We should know, as we discuss this section, the types of guidelines which will be put in place in terms of monitoring. This is the time and the debate to do so. With regard to "persons who meet the established criteria", what are these criteria? Why do we not have the established criteria in front of us? That is a broad area. We want to know and should be informed. This is the place where the issue should be debated. What are the guidelines and criteria? If we are asked after this Bill goes through, we will still be unable to answer and the public will not know what they are. They should be laid down.
The Bill then states that "the Government shall, by order, establish criteria for the purposes of subsection 3(c)". An earlier line refers to subsection 3(b) and that different criteria for different classes may be established. It is again all up in the air. They are words without meaning. We want to put meat on the bone in the context of these criteria and guidelines. I hope that the Minister can do so this evening.
It is commendable that the section is in the Bill. I further welcome the Minister's acknowledgement that the roll-out was not as expeditious as everybody would have liked. That is recognised by him and the Secretary General. There is a need to roll it out and ensure that CCTV use is expanded, particularly in urban areas. It was interesting to note that, within the past couple of weeks, a serious rape was detected because of the availability of CCTV footage. It was recognised that, without that footage, the successful prosecution of the crime would have been difficult.
This matter needs to be resourced as well as promoted. While this resourcing must be pioneered by the Department, partnerships may be also be formed with other agencies. The many positive aspects of this Garda Síochána Bill were recognised by all sides and speakers when it was formerly before this House. Undoubtedly, one such aspect is the introduction of a partnership with local government to ensure that policing receives attention and achieves a certain standard at local level. My town council and, in particular, Councillor Michael Sheehan, has for many years advocated that CCTV would be a significant aid in combatting some anti-social behaviour and criminal activities. We met with the Minister's predecessor in order to source funding for this matter. I welcome that. There is no reason a partnership could not be established with local authorities as well as with local communities. I see this as highly desirable and councils would be attracted to participating and becoming involved with the joint policing committee in the selection of locations where CCTV cameras could be installed.
I referred specifically to authorised CCTVs. I wonder whether a small lacuna exists. At present, many CCTVs are privately operated, in particular by banks and other institutions, businesses and chambers of commerce. I wonder whether they may be brought within the remit, possibly with minor grant aid, so that gardaí have direct access to the footage and they are seen as part of the overall combatting of crime and anti-social behaviour in targeted areas. This may make a significant contribution to the control and maybe even the deterrence of crime but especially to its subsequent detection. I welcome the introduction of this useful section to the Bill.
Some of my more civil libertarian allies have reservations over CCTV. Indeed, some of them had reservations over the use of CCTV for traffic control purposes. They got worked up because some of the cameras had zoom lenses which, they suggested, meant that everybody could be watched. I do not share those views. It is foolish not to use modern technology to defend the rights of ordinary citizens. Modern technology must be regarded as such.
I have a series of questions for the Minister on this matter. Does he not think that it is somewhat centralising to give this authority to the Garda Commissioner? For example, subsection (2) notes that the Garda Commissioner shall specify the areas. It is a little ludicrous that the Garda Commissioner in the Phoenix Park should decide which streets in, for example, Montenotte, where I live, should have it.
I am rendered speechless by Senator Walsh. We do not need them as Montenotte is very pleasant and quiet. I sound like I am trying to sell my house. I am not but it is a pleasant and quiet area. We have no problems to shout about.
I do not know whether permission is still needed from the Garda Commissioner to put double yellow lines on a street. We got away from that and let local authorities make these decisions. The first proposal to pedestrianise a street in Cork was approved by the city council and disapproved by the Garda Commissioner. It would not have transpired but for the discovery by the ingenious city manager that he possessed the unqualified power to close the street for repairs. He therefore closed it permanently for repair, repaired it and left it in that state until sense prevailed. I wonder about the Garda Commissioner deciding on that level of detail. I do so in a constructive manner. I am not trying to be awkward or to delay the Minister on the matter. I am concerned over that type of centralisation.
I am also concerned over the wording of subsection (1), which refers to the operation of CCTV for the "sole or primary purpose". I have no problems with the sole purpose but if it is accepted that the primary purpose is the commendable one, what are the secondary purposes? Otherwise, why is "primary" needed? The implication is that the primary purpose is to perform the tasks we all desire. The secondary may be established by the local community. What need exists for the term "primary purpose"? CCTV, as established under this section, should be about the sole purpose. I do not understand the ambiguity in terms of primary purpose and would be interested in an explanation on that.
Some other matters crossed my mind. A clause must exist somewhere in the Bill which states that, if the Minister issues guidelines, the Garda Commissioner must implement them rather than receive them as guidelines. Guidelines exist for An Bord Pleanála under which, we are told, they are not obliged to operate. They must have regard to the guidelines. I assume that the Garda Commissioner must act if he receives guidelines, in which case we might as well call them instructions and be done with it. I am interested in this.
I would like to ask the Minister questions on a number of other issues. Is the destruction of these records covered in this section? I may have missed it as it is a long section. I read it two or three times. The capacity to store audio-visual data is constantly improving. The amount of space required to store thousands of gigabytes of data in any medium is probably 1% of what it was. We should not allow this type of material to be stored indefinitely by default because not only is it inherently bad, but the Internet is awash with vast quantities of material described as recorded by various forms of closed circuit television. If we keep this information indefinitely it could turn up for sale in California. It may be of a voyeuristic nature, as people do strange things in public places, not all of which are illegal but they might well be embarrassing. An issue surrounds the retention of this material and a good case can be made for provision, at least in the guidelines for the Garda Commissioner, for securing and destroying this material as it ceases to be relevant.
I would like reassurance from the Minister on a point raised by Senator Jim Walsh. I assumed if CCTV was used in private firms it would automatically be available as evidence. Is it explicit in law that it must be available? If fraud is suspected in a bank and the bank has a CCTV system is the Garda investigation into a crime in that bank entitled as a matter of course to have access to that CCTV system? One would be entitled to have access to paper records to investigate a fraud. It seems extraordinary if we have not clarified that matter at this stage.
I am sceptical about the definition of CCTV. The legislation refers to a fixed and permanent system. A certain mobile phone operator has had great fun with the planning laws by putting up what it always describes as temporary structures, which therefore were not covered by legislation. I do not know why it is necessary to put reference to a fixed and permanent system in the legislation. It leaves room for people to play with the issue.
In general I am never reluctant to argue with this Minister but I am often reluctant to argue with him on matters exclusively to do with law. The definition of a public place includes areas where the public have or are permitted access whether as of right or by express or implied permission. I know it is meant to include sporting events but it seems more broad than is necessary.
I warmly welcome this section and I endorse every word uttered by my colleague, Senator Jim Walsh. It seems that words such as "shameful" and "disgraceful" are liberally cast around the place. Communities throughout Ireland want CCTV cameras because they are one of the most important——
It is an essential aid both for dealing with anti-social behaviour — for which it is badly required — and for dealing with serious crime.
I have some reservations about the point on retention of material which is no doubt made for civil libertarian reasons. News reports today included coverage of a Garda investigation into a murder that occurred 32 years ago. In some cases events come to light five, ten or 15 years after they occur. I would not be in any hurry to destroy records. Cases of abuse of CCTV coverage by public authorities might alter that, but the reality is that so much information is recorded that unless people who wish to make use of it know precisely for what they are searching and why they are doing so, it is like searching for a needle in a haystack. I would not be greatly concerned that a storage facility of CCTV coverage from five or ten years ago would be open to abuse. In many instances if we had records we would be in a better position to pursue convictions for crimes.
With regard to amendments referring to the Garda Commissioner or the Minister specifying matters, in reality this is done on the basis of submissions and consultations. The Garda Commissioner does not wake up some fine morning and decide to put CCTV in Listowel or Adare. It means he will make the final decision on submissions received. If one considers all the possible quibbles, qualifications and conditions, legislation would be impossibly long, and this legislation is already long. One must be wary of entangling decision makers in so many different procedures that it becomes difficult to progress matters expeditiously. I welcome the new section of the Bill without qualification or quibble.
I will not prolong the agony too much. I welcome this section. The Minister might consider subsection (11) in terms of the guidelines dealing with the type of issues raised. It seems right to give power to the Commissioner but I imagine a Commissioner in any ordered society would also have the power to delegate it down the line to be dealt with locally. It seems to be the type of function that ideally should be discussed with local policing partnerships as Senator Walsh suggested.
Some effort should be made to utilise what exists in the private sector to complement or supplement what is thought to be necessary in the public sector so an area is not festooned with cameras. As one who lives just outside an area with a camera, I am acutely aware of the problem of displacement of crime. A commitment of Garda resources must be made to balance that. With those remarks I welcome the amendment.
I listened to SenatorCummins giving out about the fact that many years after CCTV was in existence I decided to provide a legal basis for it. The fact is that it was only in the context of looking at CCTV that we asked the Attorney General's office if it was happy that we were operating it without a statutory basis and the advise was that there should be a statutory basis for it under the ECHR and so on.
That is right. To answer the point, if I had queried with my Secretary General whether we had a proper statutory basis for this and he said that we will not ask that question because it is too inconvenient, we might be in a very different situation.
People would be saying that for years we knowingly ran a system which we knew required a statutory basis but we did nothing about it. One cannot win on these issues.
Regarding the Commissioner and the centralisation point, the Commissioner's powers can be delegated under section 31. On the basis of what Senator Maurice Hayes talked about, I believe he should say that decisions on the location of a CCTV can be devolved to the local assistant commissioner or even further down the line as needs be. He can devolve some of his functions by name or by rank to different people. It must be remembered also that since the year before last, all legislation, including this Bill, must be interpreted and operated in a way that is consistent with the European Convention on Human Rights. That is an additional safeguard.
Senator Hayes referred to local policing partnerships. The Bill provides that where they are in the picture the matters he raised will be addressed.
I am an agnostic on the question of preservation or destruction of records. It is slightly sinister to think that there are hard discs somewhere, on which is recorded everybody who has walked up and down Grafton Street for the past 50 years, which are gradually being accumulated as digital information. On the other hand, would it not be horrendous to hear that somewhere there was a film record of Grafton Street for the past 50 years and that somebody, in a civil libertarian mode, was throwing it into a fire? I can see both sides of that argument.
I will take a brief to argue either side of that case.
The guidelines can deal with the question of destruction if it is an issue. When guidelines are issued, I draw the House's attention to the fact that the directives will be laid before each House of the Oireachtas as soon as possible after they have been made.
When this Bill was being drafted, I noticed on the draft that there was a prohibition on operating unlawful CCTV. I asked about banks, post offices, pubs, night clubs and so on and said that we had better provide for that.
That is where subsection (13) originated. I thought we might have the unintended consequence of making illegal that which we all believe is very good.
On the fixed and permanent system, that was put in again at my insistence. I will give an example of that, although I do not want to get into the question of guilt or innocence. The spraying of graffiti on Jewish sites in Dublin was the subject of video surveillance. I do not want an ad hoc camera which is put up to stop a particular activity being the subject of permission from the Garda Commissioner, consultation with local policing committees and so on. There are ad hoc uses of cameras in public places for particular crimes. If a journalist is under threat and we want to put up a camera near his or her house, we do not want to have to go through all of this procedure to do something on an ad hoc basis. Likewise, the example I gave was a useful tool for the gardaí to stop that activity. I do not want to talk about any pending court proceedings.