DÁIL ÉIREANN AN ROGHCHOISTE UM DHLÍ AGUS CEART, COSAINT AGUS COMHIONANNAS SELECT COMMITTEE ON JUSTICE, DEFENCE AND EQUALITY

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1 DÁIL ÉIREANN AN ROGHCHOISTE UM DHLÍ AGUS CEART, COSAINT AGUS COMHIONANNAS SELECT COMMITTEE ON JUSTICE, DEFENCE AND EQUALITY Dé Céadaoin, 7 Deireadh Fómhair 2015 Wednesday, 7 October 2015 The Select Committee met at 5 p.m. Deputy Niall Collins, Deputy Alan Farrell, MEMBERS PRESENT: Deputy Anne Ferris, Deputy Seán Kenny, Deputy Pádraig Mac Lochlainn, * In the absence of Deputy Finian McGrath. Deputy Gabrielle McFadden, Deputy Dara Murphy (Minister of State at the Department of Justice and Equality), Deputy Fergus O Dowd, Deputy Mick Wallace.* DEPUTY DAVID STANTON IN THE CHAIR. 1

2 Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage Chairman: Apologies have been received from Deputy Finian McGrath. I understand Deputy Mick Wallace will attend in substitution for Deputy McGrath at some stage. This meeting has been convened to consider the Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill I welcome the Minister of State and his officials. Will the Minister of State clarify whether we have to finish at 7 p.m.? Minister of State at the Department of Justice and Equality (Deputy Dara Murphy): Yes. Chairman: Amendments Nos. 115 and 116, in the names of Deputy Mac Lochlainn and Deputy Finian McGrath, seek to increase the number of members of the authority to 21 and 16 respectively. Currently, the Bill provides that the policing authority would be comprised of nine members. Increasing the membership of the authority would introduce a potential charge on the Exchequer because of additional remuneration and expenses to be paid to the members. Accordingly, the amendments have been ruled out of order on account of Standing Order 156(3). Sections 1 to 3, inclusive, agreed to. SECTION 4 Chairman: Amendments Nos. 1 and 2 are in the name of Deputy Finian McGrath. Amendments Nos. 1 and 2 are related and may be discussed together by agreement. Deputy Finian McGrath is not here so the amendments cannot be moved. Amendments Nos. 1 and 2 not moved. Chairman: Amendment No. 3 is in the name of Deputy Mac Lochlainn. If the question on Amendment No. 3 is agreed, then Amendment No. 4 cannot be moved. Amendments Nos. 3 to 6, inclusive, amendments Nos. 82 to 87, inclusive, and amendments Nos. 90, 101 and 109 are related and may be discussed together by agreement. Amendment No. 4 is a physical alternative to amendment No. 3 and amendment No. 6 is a physical alternative to amendment No. 5. Deputy Pádraig Mac Lochlainn: Can I get a copy of the groupings please? I apologise for this, I thought I had a copy of them but it seems I do not. Chairman: I remind members that we are discussing Amendments Nos. 3 to 6, inclusive, amendments Nos. 82 to 87, inclusive, and amendments Nos. 90, 100 and 109. Deputy Pádraig Mac Lochlainn: I move amendment No. 3: In page 7, line 15, to delete the Minister and substitute a member of the judiciary, as delegated by the Chief Justice. I attended a seminar organised by the Law Society of Ireland and Irish Human Rights and Equality Commission. The Minister for Justice and Equality, Deputy Fitzgerald, spoke at the event. Conor Brady is a former member of the Garda Síochána Ombudsman Commission and former editor of The Irish Times and is a noted commentator on policing matters. At the 2

3 Select Committee on Justice, Defence and Equality seminar in question, he expressed some concern over the procedure for when there is a dispute between the Garda Síochána Ombudsman Commission or the policing authority and the force in respect of what constitutes a security matter. Let us suppose someone in the authority requested documentation or information and the Garda Commissioner indicated that she could not provide it on the grounds that it was a security matter. Rather than the Minister adjudicating on whether it was a security matter - I imagine members would accept that there could be reasonable grounds for that - we recommend it should be done by a member of the Judiciary, as appointed or delegated by the Chief Justice. We believe that would represent an appropriate independent oversight mechanism to ensure that this conflict is reasonably resolved. Moreover, it fits the need to ensure that the new policing authority has appropriate oversight of An Garda Síochána and the need to address the concern with regard to the historical relationship between the Government of the day and An Garda Síochána and fears concerning political interference in the work of the force. If there was an independent adjudicator or a member of the Judiciary, as recommended by the Chief Justice, it would represent a more appropriate mechanism than the Office of the Minister. It would certainly address the perception and concerns around political interference or the relationship being unhealthily close, as it has been in the past. Indeed, that is a major part of the reason we are discussing this legislation and the reason we have reached this point today. That is the reason these amendments have been tabled and we trust they can be accepted. They are entirely reasonable and come from an eminent contributor, Conor Brady. Chairman: I thank the Deputy. Does he realise that we are discussing a range of amendments now? I am simply trying to be helpful. Deputy Pádraig Mac Lochlainn: Yes. Deputy Dara Murphy: I thank the Chairman for the welcome afforded to me. Deputies will be aware that the role of the policing authority will be to oversee the performance by An Garda Síochána of its functions relating to policing services. The Garda Síochána is also the security service for the State and the Garda Commissioner will continue to be accountable to the Minister and the Government in respect of national security. This is generally in line with a broad consensus within the Houses that security matters should remain within the remit of the authority. The Bill provides that in the event of a disagreement between the authority and the Garda Commissioner it would be a question for the Minister to decide whether a matter is a policing or a security matter. Deputy Mac Lochlainn s amendments would remove the role of the Minister in determining whether a matter relates the security of the State. The Minister has considered the amendments carefully and is of the view that given that the security of the State is a priority function of the Government, the task of deciding whether an issue relates to policing or security matters should be undertaken by the Minister in her or his capacity as a member of the Government. Overall, it is important to bear in mind that the Bill contains a definition of what constitutes security services in order that the scope of the authority s remit can be properly delineated. Under section 44, the authority will, in performing its functions, have regard to the importance of the functions of the Garda Síochána concerning security services. In the circumstances, the Minister believes that the scope for disagreements between the authority and the Garda Commissioner over whether a particular item is a security or a policing matter will be rather limited. In addition, discussions to resolve any difficulty will undoubtedly take place between the authority and the Commissioner before any issue is referred to the Minister. Moreover, I emphasise that before making any decision on whether a policing or a security matter is involved, a 3

4 Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage Minister will be required to act impartially. The approach adopted in the Bill is in line with similar arrangements on security matters in Northern Ireland. For example, the PSNI Chief Constable may refer to the Secretary of State a requirement to submit a report to the Northern Ireland Policing Board if it appears to the Chief Constable that a report in compliance with the requirement would contain information which ought not to be disclosed in the interests of national security. The Secretary of State can then modify or set aside the requirement. Interestingly, where the information ought not, in the opinion of the Chief Constable, be disclosed on the basis that it is sensitive, personal information or it would, or would be likely to, prejudice proceedings which have been commenced in a court of law, the Chief Constable may refer the matter to the Minister of Justice who can modify or set aside the requirement. The Minister, therefore, believes that the arrangements proposed in this Bill are appropriate and asks the Deputies not to press these amendments. Chairman: Does Deputy Mac Lochlainn or other Deputies wish to comment? Deputy Pádraig Mac Lochlainn: I am deeply disappointed with that response. I though the proposal put forward that day was a very good one. What we are trying to achieve here is not just another layer of accountability for the Garda Síochána but to have a policing authority which has real teeth and the power to hold An Garda Síochána to account and which can capture the imagination and, more importantly, the confidence of the public. I would have thought an independent adjudicator, such as a senior member of the Judiciary, a person whom we would respect, put forward by the Chief Justice would fit that role. In the Bill, we are defining what security is, so it is appropriate for a member of the Judiciary to interpret the law. That is what we ask the Judiciary to do every day. I cannot understand why we would not trust a senior member of the Judiciary, which is clearly independent, to look at that area. The Minister has also referred to the situation in the North. In Britain, one does not just have a police service dealing with security matters, there is a designated security agency, MI5 or MI6 which deals with those matters and is accountable to a committee in Westminster. In relation to security matters, there is no accountability to the Oireachtas. With all due respect, that is a poor comparison to put forward. I protest in the strongest terms about this decision. I will press the amendment and will table it again on Report Stage. I appeal to the Minister of State and the Minister for Justice and Equality to reflect on this amendment in the spirit it is presented. I refer to a suggestion not from Sinn Féin but from Conor Brady, a respected former Garda Síochána Ombudsman Commissioner and former editor of The Irish Times, a man respected for his views on policing matters and his proposals are based on his immense experience. I appeal again to the Minister of State to reconsider my amendments and discuss them with the Minister to see if this can be done on Report Stage. Chairman: Do other members wish to comment? Deputy Wallace is substituting for Deputy Finian McGrath, who has tabled a number of amendments which are grouped and are being discussed. Once the discussion on amendments that are being debated together has been completed, we will not be coming back to them. When we reach these amendments, we decide whether they will be pressed and voted on. We will not be debate them again. This is the time to discuss those amendments. I remind members to address the Chair as it makes the proceedings flow better. 4

5 Select Committee on Justice, Defence and Equality Deputy Dara Murphy: I acknowledge the points made by Deputy Mac Lochlainn. Let me restate that the Minister has considered these amendments very carefully and in this particular case, given that the security of the State is a priority function of Government, the task of deciding whether an item relates to policing or security matters should be undertaken by the Minister and has to take place in his or her capacity as a member of the Government. The scope for disagreements because of the clear definitions will mean that these disputes will, in any event, be very limited. As I have said, the Minister for Justice and Equality has considered this point very carefully. Deputy Mick Wallace: A number of my amendments are being discussed with amendments Nos. 3 to 6, inclusive, I want to ensure that I can table amendments on Report Stage. The amendments are similar to Deputy Mac Lochlainn s amendments. The thinking is to prevent the excuse of national security being invoked by the Minister to prevent full investigation by GSOC. The proposed legislation sets the Minister as the final arbiter if there is a disagreement over whether an issue is considered a policing or security one. The Minister could have a selfinterest in this categorisation and it is illogical to consider this a safeguard of any sort. Despite the fact that Ms Josephine Feehily said that the demarcation between policing and security is something to be tested, there is no appeal to the courts and no way to test it. The Minister for Justice and Equality has the final say. Decisions of national security policing should be dealt with by an alternative body. I put in GSOC because I did not want my amendment to be ruled out of order because it might be ruled as a cost to the Exchequer if I invented a new body. There is a need for an independent arbiter and a High Court judge should be involved as well. I hope to discuss these amendments in the Chamber. Do I have to mention all my amendments individually? Chairman: If the Deputy wishes to refer to them, he can do so. Deputy Mick Wallace: As long as I am able to table these amendments on Report Stage, I am fine with it. Chairman: As we are discussing the amendments together, once they are discussed, that is fine. Deputy Dara Murphy: On the specific point made by Deputy Wallace on amendments in the name of Deputy Finian McGrath, the amendments would assign to GSOC the functions of Government in relation to national security. Deputies are all aware that the core function of GSOC is to investigate complaints made against members of the Garda Síochána and has no oversight function in relation to national security. I think there has been a broad consensus that the authority should not have a function with respect to security. The effect of the amendment would also give rise to an unusual set of reporting arrangements where the Garda Commissioner would among other duties account fully to GSOC in relation to security services, through the Secretary General of the Minister s Department. It is hard to understand how that might work in practice. Along similar lines to the other amendments being discussed, given the security element, these cannot be accepted. Deputy Fergus O Dowd: I appreciate what the Minister of State has said. I support the point that if it is an issue of national security and the Government so deems it, that it would 5

6 Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage be in its exclusive domain. If that were not the case and if the State was to be affected by the concerns, the responsibility would not rest with the Government but with another party, notwithstanding its capacity and ability to analyse and understand situations. What safeguards are built in, or what process or procedures are there? If a Minister is making such a decision, would he or she have to publish it? Deputy Mac Lochlainn makes the point about accountability - in other words, that it could not happen in a vacuum, notwithstanding the fact that one might never know. For example, some of things that are happening in regard to ISIS in other countries could give rise to serious issues that might never, or should never, be disclosed. One would have to take it in good faith that the Government acted accordingly. What accountability would the Minister have? Deputy Dara Murphy: The Minister would have to explain his or her decision to both parties in the event of a disagreement. As to whether there would be a report, it is unlikely that would require a report given that there would be two parties involved who would each get the same explanation for the decision. Deputy Pádraig Mac Lochlainn: My concern is that one assumes there may be an occasion the Minister would have to consult with the Attorney General. Would that advice be privileged and, therefore, not be published? Deputy Dara Murphy: All advice from the Attorney General to Ministers is privileged. Chairman: I take it that nobody else wishes to comment on this set of amendments. Does Deputy Mac Lochlainn wish to press amendment No. 3? Deputy Pádraig Mac Lochlainn: Yes. Chairman: As the full membership of the committee is not present, under Standing Orders we are obliged to wait eight minutes or until the full membership is present before proceeding to take the division. Amendment put. The Committee divided: Tá;, 2; Níl, 8. Tá; Níl; Mac Lochlainn, Pádraig. Collins, Niall. Wallace, Mick. Farrell, Alan. Ferris, Anne. Kenny, Seán. McFadden, Gabrielle. Murphy, Dara. O Dowd, Fergus. Stanton, David. Amendment declared lost. Deputy Mick Wallace: I move amendment No. 4: In page 7, line 15, to delete the Minister and substitute the Ombudsman Commission, 6

7 Select Committee on Justice, Defence and Equality which will consult a designated Judge of the High Court who will act as an independent arbiter. Deputy Mick Wallace: I move amendment No. 5: In page 7, to delete lines 16 and 17 and substitute the following: (4) The determination by the Ombudsman Commission in consultation with a designated Judge of the question or dispute referred to them under subsection (3) shall be subject to appeal through the Courts.. Deputy Pádraig Mac Lochlainn: I move amendment No. 6: In page 7, line 16, to delete the Minister and substitute a member of the judiciary. Section 4 agreed to. SECTION 5 Deputy Mick Wallace: I move amendment No. 7: In page 7, to delete lines 28 to 30 and substitute the following: (b) the principle that effective and efficient policing is dependent on the confidence, support, engagement and cooperation of local communities and every member of the Garda Síochána or member of the civilian staff of the Garda Síochána should, in carrying out his or her functions (i) act professionally, ethically and with integrity, (ii) carry out his or her functions with the aim of securing the support of, and acting in cooperation with, the local community, and (iii) be guided by the code of ethics under section 17 (Code of Ethics). We are looking to substitute the amendment listed above for lines 28 to 30 in the new section 3B(b) inserted by section 5 of this Bill. The policing principles section of the proposed legislation should include a reference to the code of ethics in section 17. The 2005 Act sets out that the Minister shall establish by regulation a code of ethics, including conduct and practice for members of An Garda Síochána following consultation with the Garda Commissioner, the Garda Síochána Ombudsman Commission and the Irish Human Rights and Equality Commission and with regard to European standards. Neither the Minister nor any previous Ministers actually has done this. The proposed Bill sets out that the authority shall set a code of ethics but the clause regarding breach of the code of ethics being a breach of discipline, which was included in the heads of Bill in November 2014, has been removed from the proposed legislation. The heads also included the code of ethics in the policing principles but this has been removed from the legisla- 7

8 Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage tion. Under the 2007 disciplinary regulations, a breach of the code of ethics if it existed would be a breach of discipline. However, this is only secondary legislation and can be revoked at any point by the Minister s executive power. We argue in subsequent amendments that a code of ethics should be included in the Bill and that any breach of such a code would be a breach of discipline and sanctioned accordingly. Deputy Dara Murphy: Section 5 of the Bill inserts a new section 3(b) into the principal Act which sets out the policing principles that will underpin the provision of policing services in the State. According to these principles, policing should be conducted independently, impartially, in accordance with the law and in a manner that respects human rights and supports the proper and effective administration of justice. Such principles are a feature of the legislation underpinning the policing services in Northern Ireland, Scotland and New Zealand. I note that the Deputy s amendments seek to replace the text in the Bill with text from the general scheme of the Bill that related to the principles. The Deputy will be aware that a general scheme is not of itself law. Rather, it purports to set out the general policy requirements that are sought to be included in the legislation when drafted by the Office of the Parliamentary Counsel. Following intensive discussions between the Minister s officials, Parliamentary Counsel and legal advisers in the Office of the Attorney General, the provision relating to policing principles was developed to set out a series of overarching and guiding principles to underpin the provision of policing services in the State rather than to impose specific requirements on individual members of An Garda Síochána. That is not to say, of course, that the specific requirements in the Deputy s amendment should not inform members in carrying out their day-to-day duties. In this context, I draw the attention of the Deputy to the solemn declaration under section 16 of the principal Act which is made by each and every member of An Garda Síochána before a peace commissioner. Each member declares that he or she will faithfully discharge the duties of a member of An Garda Síochána with fairness, integrity, regard for human rights, diligence and impartiality, upholding the Constitution and the laws, according equal respect to all people, and to the best of his or her skill and knowledge, discharge all duties according to law. In the circumstance, the Minister would invite the Deputy to withdraw his amendment. Deputy Mick Wallace: I certainly will not withdraw the amendment. In respect of many issues in policing over recent years we have found that the lack of a registered code of ethics has been a big problem, and I am a bit disappointed that the Government has not taken the same approach. I will be pressing the amendment. Section 5 agreed to. Sections 6 and 7 agreed to. NEW SECTION Chairman: Amendments Nos. 8 to 74, inclusive, 77, 78, 141, 142, 144 and 149 to 152, inclusive, are related. Amendments Nos. 9 to 13, inclusive, are physical alternatives to amendment No. 8. If amendment No. 8 is agreed, amendments Nos. 9 to 13, inclusive, cannot be 8

9 Select Committee on Justice, Defence and Equality moved. Amendment No. 15 is a physical alternative to amendment No. 14. Amendments Nos. 23 to 28, inclusive, are physical alternatives to amendment No. 22. Amendment No. 30 is a physical alternative to amendment No. 29. Amendments Nos. 37 and 38 are physical alternatives to amendment No. 36. Amendment No. 40 is a physical alternative to amendment No. 39. Amendments Nos. 42 to 46, inclusive, are physical alternatives to amendment No. 41. Amendment No. 50 is a physical alternative to amendment No. 49. Amendments Nos. 55 and 56 are physical alternatives to amendment No. 54. Amendments Nos. 58 and 59 are physical alternatives to amendment No. 57. Amendment No. 67 is a physical alternative to amendment No. 66. Amendment No. 69 is a physical alternative to amendment No. 68. Amendment No. 71 is a physical alternative to amendment No. 70. Amendment No. 142 is a physical alternative to amendment No Amendment No. 150 is a physical alternative to amendment No Amendment No. 152 is a physical alternative to amendment No Amendments Nos. 8 to 74, inclusive, 77, 78, 141, 142, 144, and 149 to 152, inclusive, will be discussed together. Deputy Mick Wallace: I move amendment No. 8: In page 8, to delete lines 6 to 22 and substitute the following: 9. (1) Subject to this section, the appointment of a person to be the Commissioner of the Garda Síochána shall be made by the Authority following consultation with the Government. (2) The Authority shall not appoint a person under subsection (1) unless it has invited the Service to undertake a selection competition for that purpose and the Service has undertaken such a competition. (3) The Authority shall agree with the Service the selection criteria and process that are to apply to the selection competition under this section. (4) A person shall not be appointed by the Authority under subsection (1) unless it is satisfied that the person is suitable for appointment as the Garda Commissioner by reason of his or her possessing such relevant experience, qualifications, training or expertise as is appropriate having regard, in particular, to the functions assigned to the Garda Commissioner by or under this Act.. I will not discuss all the amendments at the moment. Chairman: To be clear, we must debate them now. We cannot debate them again. We must debate all these amendments now. Deputy Mick Wallace: I am not compelled to address every single one of them, am I? Chairman: No. It is up to the Deputy. Deputy Mick Wallace: The proposed legislation includes a complicated system of appointment and removal of persons from their positions whereby, depending on their rank, a person can be removed by and is answerable to one or even two of three bodies - the Government, the authority or the Commissioner. Further confusion arises where one body appoints and another has the power to remove, for example, in the case of an assistant Commissioner, chief superintendents and superintendents. How can An Garda Síochána be expected to function as a cohesive and disciplined body if there is so much confusion about appointments? The 9

10 Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage Irish Human Rights and Equality Commission and the Irish Council for Civil Liberties recommend that the authority be responsible for the appointment of senior management, including the Commissioner. I note that in her presentation at a policing conference at Farmleigh, Dr. Vicky Conway----- Chairman: I ask all members not to refer to people outside the House. Deputy Mick Wallace: The authority had responsibility for the appointment of the Commissioner with the approval of the Minister. The legislation as proposed sets out that the Garda Commissioner and any Deputy Garda Commissioners are to be appointed by the Government following the nomination by the authority. However, the authority can only nominate in accordance with the recommendations of the Public Appointments Service which will provide it with one name only. The authority needs the approval of the Government to ask the Public Appointments Service to conduct a selection competition and the Government may veto the authority s nomination in undefined exceptional circumstances. It is unfair and irrational to ask the authority to be responsible for systemic issues and policies and performance issues when it does not have the power to appoint or remove those responsible for implementing those policies and priorities. At the heart of many of our amendments is the fact that we thought an independent police authority would de-politicise policing in a manner we have not seen before. Sadly, the paws of the Government in power will be all over policing, as per the norm. There is little change. Most of my amendments are geared around this. It is a major missed opportunity. I will press the amendment. Deputy Pádraig Mac Lochlainn: I will argue along the same lines as Deputy Wallace. Dr. Vicky Conway made a submission to the justice committee in respect of authority in this area. It is appropriate and in order to do so. Respected analysts in the Irish Council for Civil Liberties, ICCL, have been mentioned. It is important to take stock of why we are here. We have had a number of crises and scandals in my county since the Morris tribunal. The actions of a minority of Garda Síochána members have dishonoured the service given by the overwhelming majority. We want to have a police service that is up to modern, international standards, fully independent of political interference and fully accountable. When the gardaí get up in the morning, or the night, to commence their work, we want them to be proud that they are in a police service of the highest international standard. If we are serious about having a policing authority that is to command the respect and confidence of the public and is to have teeth and real purpose, it must have the ability to appoint, and fire, the Garda Commissioner and deputy commissioner. It needs the power to examine superintendents and chief superintendents and to have oversight of the promotion process in the Garda Síochána. From the sergeant up to the Garda Commissioner, there must be an independent appointment process that is accountable and based on merit from top to bottom. This is required to give the full confidence to the public and, just as important, to ensure the members of the Garda Síochána know they have equal opportunity of promotion, taking into consideration no other issue than their ability, service and capacity. Wherever policing authorities have emerged, including the Northern Ireland Policing Board, this has been the case. This is the objective of my amendments. They cover the appointments to these positions. It is not just the issue of the appointment of the Garda Commissioner, deputy commissioner, assistant commissioners, chief superintendents and superintendents. It extends right down. In my role as justice spokesperson, I have spoken to many gardaí during recent years. One of the issues they raise is the perception that people have been promoted based on whom they know, 10

11 Select Committee on Justice, Defence and Equality not what they know or their ability. As part of the process of creating the policing authority, it is very important to give the authority oversight. While the authority might not appoint the sergeant, inspector or superintendent, it should have oversight over the appointment system. We must have a genuine new departure. My concern with what is proposed is very real. Chairman: Could the Deputy focus his attention on whatever amendment he is proposing? Deputy Pádraig Mac Lochlainn: I am. Everything I have said is connected to----- Chairman: To be helpful, could the Deputy identify the amendment he is talking about? Deputy Pádraig Mac Lochlainn: It is very unfortunate that whoever makes these decisions has batched together a very large number of amendments. Chairman: There is no time limit. Deputy Pádraig Mac Lochlainn: I can speak only in general. I do not have time to go through each amendment. Chairman: The Deputy has all the time he needs. Deputy Pádraig Mac Lochlainn: If the Chairman is willing to work with me, I am willing to take as long----- Chairman: Absolutely. I want to be helpful. Deputy Pádraig Mac Lochlainn: I appreciate that. I will take my time. The Chairman is correct. I probably should have been more specific. Amendments Nos. 9 to 21, inclusive, deal with the Garda Commissioner. Amendments Nos. 23 to 35 refer to the deputy commissioner. Amendments Nos. 37 to 62 deal with the issue of directly appointing officers from sergeant up to superintendent. A provision in the Bill allows the Minister to hold, initiate and oversee inquiries into policing matters. Amendments Nos. 63 to 69 give those powers to the authority. Amendments Nos. 71 to 73 are technical amendments in line with the power being given to the authority to remove officers. The intention of amendment No. 74 is to give the Garda Commissioner, with oversight from the authority, as opposed to the Minister, the power to appoint gardaí, sergeants and inspectors. I do not intend that the authority would be directly involved with the many sergeants, inspectors and superintendents who are promoted every year, but that it would have oversight of the process undertaken by the Garda Commissioner. Amendment No. 77 provides that the Minister s consent is not required for the appointment of civilian Garda staff and gives oversight to the authority in this regard. Amendment No. 78 provides that the Minister s approval for setting the priorities of the Garda Síochána is not required. The authority should, again, be independent in its functions and should be responsible for the oversight. Amendments Nos. 141, 142, 149, 151 and 152 relate to giving power to the authority rather than to the Garda Commissioner or the Minister. I will outline the powers that the Government would retain under the legislation. The Commissioner and deputy commissioner would be appointed and removed by the Government. The Commissioner would be accountable to the Government. Although it has been stated that the Commissioner would remain accountable to the Government on matters of national security, this is inaccurate. The original provision on accountability would not be altered. The Commissioner would remain accountable to the Minister for the performance of his or her functions and 11

12 Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage those of the Garda Síochána. This concerns all aspects of policing, not just national security. Policing plans, strategies and priorities would have to be confirmed by the Government. The Government would set security priorities and budgets. The Minister could demand any documents of the Garda Síochána and issue written directives to the Garda Síochána and the authority. CCTV schemes must be approved by the Minister. Ministerial consent would be required for GSOC to investigate the Commissioner. The Minister would decide the number of senior rank positions and consent to the number of civilian staff, the appointment of members to the audit committee and the appointment of the CEO of the authority. The Minister would decide what constitutes State security. Government consent would be required for gardaí to work in a police service in another state. The Minister would authorise the delegation of the Commissioner s functions to the deputy commissioner. The Minister can appoint someone to inquire into any aspect of policing. Chairman: We are dealing with a group of amendments which relates to the appointment or removal of members of An Garda Síochána and its civilian staff. The Deputy is inclined to veer into other areas. We need to keep the debate focused. Deputy Pádraig Mac Lochlainn: It is fairly self-evident what I did. My amendments deal with seven separate issues. The Government is severely undermining the independence of the policing authority with the powers it is retaining. Our amendments aim to give the authority the independence it needs. If these are rejected, then the Opposition could not stand over the claim that there is an independent policing authority. It is regrettable to say that because I want this authority to work. If these amendments are rejected by the Minister, then there is a big problem. Deputy Dara Murphy: The effect of these amendments would be to remove from the Government and the Minster for Justice and Equality any role in the appointment and removal of senior members of the Garda Síochána. Legislation must be fully compatible with the Constitution. No member would wish that there would be a serious constitutional question over legislation. Article 28.2 of the Constitution specifically provides for the Executive power of the State to be exercised by or on the authority of the Government. In the course of the drafting of this Bill, the Attorney General has advised that, as a matter of custom, practice and proper constitutional interpretation, the function of the Garda Síochána in the exercise of the policing power of the State has been interpreted by the courts as a function that is exercised as part of the Executive power of the State. While an Executive power of the Government under Article 28.2 can be delegated, the advice is that it would not be constitutionally permissible for such a delegation to amount to an abdication of the Government s Executive power. Within this framework, the Attorney General has advised that any legislative proposal in the establishment of a policing authority should ultimately preserve the power of the Government to appoint or to dismiss the Garda Commissioner. To address the relevant constitutional concerns, the advice of the Attorney General is reflected in the Bill s provisions. Due to the importance of their functions, a similar approach has been adopted for Deputy Garda Commissioners. When considering the amendments, it is also necessary to take account of the fact that the Garda Síochána is the security service for the State. Under the Bill, the Garda Commissioner will continue to be accountable to the Government in respect of national security. This is an approach that has a wide measure of support in the Oireachtas. It goes without saying that national security is a key function of the Government. In the Minister s view, leaving aside the clear constitutional dimension involved, the appointment of the head of the national security service should not be undertaken by a body other than the Government. To put the matter at 12

13 Select Committee on Justice, Defence and Equality its simplest, in view of the functions involved, the final appointing decision must rest with the Government. For similar reasons, the Government must continue to have the capacity to remove senior Garda members on security grounds. While there are other issues that I might raise about the Deputies amendments, I will concentrate on the functions that are being conferred on the policing authority by the Bill in respect of the appointment and removal of Garda personnel. Under the Bill, the authority will have a leading role in a large body of Garda appointments. This will operate, in particular, at the highest levels of the Garda organisation and it will also have general functions in the areas of Garda appointments and promotions. With regard to the Garda Commissioner, or a Deputy Commissioner, all future appointments to these posts will be made solely on the basis of a nomination made by the authority, following an open selection process undertaken by the Public Appointments Service. In exceptional circumstances where the Government is unable for significant reasons to accept a nomination made by the authority, it will have to state its reasons. When such a situation occurs, the Government will be obliged to ask the authority to nominate another person for the position. From an international perspective, it is the general practice that governments either make or must approve top-level police appointments. For example, while the Police Service of Northern Ireland chief constable is appointed by the Northern Ireland Policing Board, the appointment must be approved by the Northern Ireland Minister of Justice. Similar arrangements are also in place in Scotland, which has a recently established police authority. In the case of Garda personnel between the ranks from superintendent to assistant commissioner, the Bill provides that all the appointments will be made directly by the authority. Additionally, the authority will appoint persons to positions in the Garda civilian staff which are equivalent to or above the rank of chief superintendent. With regard to dismissals, and in line with the constitutional and security principles I have already outlined, the Garda Commissioner or a Deputy Commissioner will be removed by the Government. At the same time, the authority will have the power to recommend to the Government that a Garda Commissioner or Deputy Commissioner be removed for policing reasons. While the Government will not be obliged to adopt such a recommendation, it is difficult to envisage circumstances in which it would not do so. Dismissals of persons between the ranks of superintendent to assistant commissioner for policing reasons will be undertaken by the authority. It will also be able to suspend a person from duty in advance of a removal decision. While the Deputies amendments go beyond the appointment and dismissal of Garda personnel, it is important to make clear that the overall approach adopted by the Government to the Bill is that relevant functions should be transferred from the Government and the Minister to the authority where this is permissible and appropriate. However, the transfer process has its limitations and it has to be undertaken against the general constitutional and policy backgrounds which I have highlighted. Within these frameworks, for example, the Minister cannot, for substantial legal and policy reasons, accept a situation, as proposed in these amendments, where the Minister of the day would not be involved in determining the numbers of persons to be appointed to senior Garda ranks. Overall, the Minister appreciates the approach of the Deputies in their amendments is to remove what they perceive to be a system in which key elements could be the subject of political considerations. However, she believes the significant reforms and measures provided for in the 13

14 Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage Bill are fully adequate to address any concerns they might reasonably have and, in particular, substantial powers are being conferred on the new authority which will be independent in the exercise of its functions. The Bill s proposals for the establishment of the independent policing authority will play a vital role in ensuring public confidence will be maintained in the Garda Síochána and in the essential services it provides. Moreover, as I have indicated, they have been developed to address very important constitutional and policy requirements that arise within both the policing and security areas. Unfortunately, for reasons I have given, the amendments do not meet these requirements. We are not in a position to accept them so, accordingly, on behalf of the Minister, I would ask the Deputies not to press the amendments. Deputy Pádraig Mac Lochlainn: This is an issue on which our committee did a good deal of work. We went to the North and to Scotland to examine their models and made recommendations. One of the issues we engaged with was separating policing from security responsibilities but what has come to pass now is that because An Garda Síochána is unique in the developed world in that its members retain responsibility over policing and security matters, it has led to a situation where, essentially, the Government still retains control policing elements because of the security aspect. The Minster referred to Article 282. That article states: The Executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government. I have to accept that the Minister has been advised by the Attorney General but the interpretation taken is very broad. There is little case law to aid the interpretation. It is unclear. It is a big call to make because regardless of whether we have an independent policing authority, if the Minister interprets Article 28.2, as has been done, as meaning the Minister has to retain control over all security matters in the interests of the State, and because we have a police service that is responsible for policing and security, all policing elements, therefore, are still controlled by Government. Ultimately, the policing authority has to refer. That is a big call to make. The Attorney General is in place because of her considerable legal expertise but there are other people with considerable legal expertise who would take a very different view. We have an area of conflict here, which is profound. The Minister has made a call but I believe it needs much more debate, such is the profound nature of the call. In our hearings we debated whether we should have a separate security and policing apparatus in this State that would be accountable to these Houses, as is the case with many security services. The United States and British security services are accountable to their respective Houses of Parliament. The response given is very serious in terms of its implications and if the Minister s call is that he is accepting the advice of the Attorney General, and on that basis Article 28.2, it is open to challenge. We will not get agreement on this today but I ask the Minister to take other legal opinions into consideration or at least take legal submissions and then put those legal submissions to the Attorney General. We will take Report Stage in the near future. I have another opinion before me from a person I respect in these matters and who has a very different interpretation. I would be happy to submit that to the Minister, and for the Minister to ask the Attorney General to respond to the issues raised. I respect the constitutional core role of the Attorney General and the advice that person gives to the Government of the day but these matters are so serious they deserve more deliberation by the Minister, with the Attorney General, based on the submissions that might be received. 14

15 Select Committee on Justice, Defence and Equality I will press my amendments, and I know I will not get agreement on them, but I do not accept the analysis that has been given to the Minister. It is a serious interpretation to take because it means, essentially, that this is not an independent policing authority because we have a police service that has responsibility for security and policing matters, and that is a serious matter. Chairman: Deputy Wallace indicated on these amendments as well. To be helpful, we are discussing the appointment or removal of members of An Garda Síochána and its civilian staff. Deputy Mick Wallace: The Minister s argument makes a very good case for separating the regular functions of policing from State security. It would require visiting the Constitution but if it means that we will never have an independent policing authority without separating the regular functions of policing from State security, the sooner a Government has the courage to do that, the sooner we will have an independent police authority, which is urgently required. Deputy Dara Murphy: It is acknowledged that having a combination of policing and security services gives rise to certain realities. Another reality is that the Attorney General has given her interpretation of the Constitution. The Government cannot and will not ignore that advice but, to be fair, this Bill does transfer significant ministerial powers to the authority. The Attorney General is the legal adviser in this instance. She has given her advice. The Government accepts it and, consequently, this amendment cannot be accepted. Deputy Pádraig Mac Lochlainn: Would the Minister of State be agreeable to receiving a submission for deliberation by the Minister ahead of Report Stage? Deputy Dara Murphy: Any Minister will take any submission on any item of legislation. Deputy Pádraig Mac Lochlainn: If the Attorney General receives the submission but continues to hold the position that her analysis is correct, I assume the Minister would take that guidance and continue on this course, as is the intention, but the implications are profound. We have a unique situation where the Garda is responsible for policing and security. I cannot emphasise the seriousness of that. Given the way we set up An Garda Síochána in this State, which reflected times past, we cannot take An Garda Síochána to be an independent policing service that is accountable to an independent policing mechanism. The Minister drew comparisons with Britain and the North but those comparisons are not correct because in Britain, MI5 and MI6 are accountable, as are police constabularies in different regions. That lends itself to the situation in the North also. There is a separate policing and security apparatus in the United States, which is accountable also. Our policing service will not be independently accountable because it also has responsibility for security. That is the only interpretation I can take if the Attorney General and the Minister continue to take this position. If the Minister is agreeable, I will put a submission to him when the meeting concludes. I ask him to consider it and we may be able to continue the debate on Report Stage. Deputy Fergus O Dowd: I hear what Deputy Mac Lochlainn is saying but An Garda Síochána is accountable to the Oireachtas in terms of appearing before this committee. In other words, if there is an issue which is germane to this committee, we make a request to An Garda Síochána to appear before us to discuss it. Indeed, we are arranging to have the Garda Commissioner appear before us shortly. There is no issue of which I am aware that cannot be discussed here but the Government has a right to reserve to itself the security issues. I would reject the criticism in the context of the sacrifices many gardaí have made on behalf of this State and all of our citizens over the years. I would not agree with Deputy Mac Lochlainn s analysis. Notwithstanding the fact he intends to put a document before the Minister, he must accept that 15

16 Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Committee Stage An Garda Síochána is accountable to the Oireachtas, that its representatives come in here and answer questions from members. This committee is the proper and appropriate authority and representatives of An Garda Síochána appear before us. Chairman: Again, I want to advise members that we are discussing the appointment and removal of members of An Garda Síochána and civilian staff. That is the issue and the context and I would ask members to remain focused on that. Otherwise we will go off on all kinds of tangents. All of the other issues Deputies are raising will be dealt with later as we go through the Bill. I am trying to be helpful here. Deputy Mick Wallace: I wish to make a short comment on Deputy O Dowd s point on the issue of the Garda Commissioner being answerable to the Dáil and to the Minister. Had there been a buffer between the former Garda Commissioner and the former Minister for Justice and Equality, Deputy Alan Shatter, they would both probably still be in their jobs. That is part of the problem. Chairman: With respect, Deputy, we are straying away from the issue at hand. I ask the Deputy to try to stick----- Deputy Mick Wallace: I could not resist----- Chairman: I know but the Deputy should try to resist. He should try to focus on the amendments we are dealing with. I know from many years of experience that this is the best way of dealing with the Committee Stage debate on Bills. We must focus on the detail of the amendment. Otherwise, we get into more general discussions and end up being here all day. The detail is what we must focus on. Deputy Pádraig Mac Lochlainn: I wish to respond to Deputy O Dowd s point. I said earlier - we can check the transcripts to verify this - that the dishonourable behaviour of a small minority of members of An Garda Síochána had undone the very honourable, patriotic, decent service given by the vast majority of members of An Garda Síochána. That is a stand alone statement. In terms of accountability----- Chairman: Sorry, Deputy but----- Deputy Pádraig Mac Lochlainn: I am responding to a point made by Deputy O Dowd and I have a right to do that. Chairman: Yes, but the points made by Deputy O Dowd were straying a small bit from the amendment we are dealing with. Deputy Pádraig Mac Lochlainn: Yes. Chairman: My job is to try to help members to focus on the amendments, if I can. Deputy Pádraig Mac Lochlainn: Yes, but with respect, the comments were made. Deputy Fergus O Dowd: They were made in respect of what the Deputy actually said. Deputy Pádraig Mac Lochlainn: There is no problem with the overwhelming majority of gardaí. We all live in this State and have seen the issues that have emerged since the Morris tribunal. We have seen a range of issues emerge that have been the subject of commissions of investigation, independent review panels and so forth. Unfortunately, this is not unique. Police 16