Wednesday 11 February 2015

Check against delivery

Cathaoirleach,

On behalf of the Minister for Justice and Equality who, cannot be present, I move: that the Bill be read a second time.

Senators will be aware that this Bill is one of a series of measures that have been taken by the Government, as part of a comprehensive programme of justice reform, which will substantially strengthen Garda accountability. This reform programme is being informed, to a substantial extent, by the excellent work undertaken by the Joint Oireachtas Committee on Justice, Defence and Equality.

Overall, the Government’s objectives are to ensure that the confidence of the public in the Garda Síochána is maintained and to bring forward the necessary change so that the high quality and respected service that the Garda Síochána has provided is continued and enhanced to better meet the realities, requirements and expectations of 21st century policing.

The underlying focus of the reform programme, which is being supervised by the Cabinet Committee on Justice Reform chaired by the Taoiseach, is to put in place effective arrangements for the oversight, governance and accountability of the Garda Síochána. As a member of the Cabinet Committee; and more particularly as the responsible line Minister, Minister Fitzgerald is leading the implementation of the reform programme.

The Bill before us today marks an important element of these reforms. But before turning to deal specifically with the Bill, I wish to update Senators briefly on the other important elements of the Justice Reform Programme.

· the Minister has published the Scheme of a Bill for the proposed new Policing Authority which takes into account a significant number of the recommendations made by the Joint Committee. The Bill is being drafted on a priority basis and the Scheme has been considered by the Joint Committee in the course of pre-legislative scrutiny. The Minister is looking forward to publishing the Bill and bringing it before the Oireachtas as soon as possible. That will, of course, afford us another opportunity to consider any additional measures that might be required to enhance the role of GSOC;

· the Independent Review Mechanism, consisting of a panel of counsel established to examine approximately 300 complaints alleging Garda misconduct or problems with investigating misconduct, is continuing its work and has made significant progress;

· the Public Appointments Service has managed the first open competition to appoint a new Garda Commissioner which gave rise to the appointment of the current Commissioner;

· following a process undertaken by the Public Appointments Service seeking expressions of interest, the Government has nominated Ms Josephine Feehily as the Chairperson-designate for the forthcoming Independent Policing Authority. As Chairperson-designate Ms Feehily will assist in the preparations for the establishment of the Authority;

· the Minister has also published the Garda Síochána Inspectorate’s crime inspectorate report. The report deals with crime recording and investigation, and also deals with some of the concerns raised by Mr. Seán Guerin SC in his report to the Government earlier this year in respect of certain Garda actions. The report contains more than 200 recommendations for implementation which are being actively pursued;

· the establishment of a Commission of Investigation into matters identified in the Guerin report is in train;

· the Fennelly Commission of Investigation is proceeding with its tasks of examining the operation of telephone recording systems in certain Garda Stations over many years, as well as other matters. The Commission has indicated that it will submit an interim report in respect of specific issues;

· the report of Judge Cooke’s inquiry into reports of unlawful surveillance of GSOC has been published and GSOC has published a redacted version of the report it commissioned into the possible disclosure of confidential information;

· following the recent publication of the report of the Garda Professional Standards Unit in relation to cancellations on the Fixed Charge Processing System, a further set of new arrangements has been introduced including:

Ø the referral for determination by the DPP of cases involving Gardaí seeking to have points cancelled on the basis that they were performing official duties at the time; an exemption provided in law to Gardaí and other emergency vehicle drivers;

Ø the establishment of a new enforcement unit in the Fixed Charge Processing Office which will follow-up on all cases cancelled due to the fixed charge notice being returned having not been delivered through the postal system; and

Ø consultations between the Minister’s Department and the Department of Transport in relation to the introduction of legislative changes arising from recommendations of the report.

In addition, the Minister has appointed Judge Mathew Deery, former President of the Circuit Court, as the Independent Oversight Authority for the fixed charge processing system. The Authority will be free to inspect at random any fixed charge notice cancellation and report his findings on the operation of the system to the Minister;

· the review of the Garda Síochána under the Haddington Road Agreement is expected to be completed shortly and encompasses all aspects of the operation and administration of the Garda Síochána;

· the Minister has published the Report of the Independent Review Group on the Department of Justice and Equality and is working closely with the Department’s senior management team to implement the report’s recommendations;

· the Protected Disclosures Act 2014 has amended Garda legislation to allow Garda members to make “protected disclosures” to GSOC in confidence in respect of alleged Garda misconduct. The relevant provisions of the Act have been brought into operation.

In presenting this Bill to the House, I look forward to a constructive engagement with Senators.

Overall, the Minister believes it is important that we, and in particular us as members of the Oireachtas, should not forget the on-going and substantial contribution which the Garda Síochána and its members have made for over 90 years, in terms of keeping our communities safe and preserving the security of the State.

A contribution delivered in the face of ever-present threats; a contribution delivered, tragically, at the cost of the lives of some members of the force.

A contribution for which we should be grateful to the men and women of An Garda Síochána.

However, for all this good work, the Minister is not blind to that which is not good—

· on penalty points,

· in crime investigation,

· in responding to whistleblowers.

In some cases, what we have learned about the behaviour of members of An Garda Síochána has struck at the heart of our shared understanding of what justice itself is.

For we live in a republic.... A republic of laws...

Where there is not; and never can be, a situation of one law for some but not others.

Where all persons are, and should always be, treated equally.

That is what we expect.

More importantly, that is what we are entitled to expect.

We have had too much controversy in relation to the Garda Síochána of late.

The Minister acknowledges that this has been a difficult time for the members of the Garda Síochána, the vast majority of whom joined the Garda Síochána with the sincerest of aspirations to provide the highest levels of service to the public and who are disappointed at the failures that have been uncovered and the controversies that have raged.

Similarly, she is aware that there is a commonly-shared determination and desire, within the Garda Síochána and among communities right across this country, to see reform happen, to see a break from the past, to move on from this period of controversy, to a new period of confidence.

The Minister wants to see confidence trumping controversy.

· she wants to see confidence restored in the work of An Garda Síochána;

· she wants to see the organisation, structures, practices and systems put in place to support the men and women of An Garda Síochána to effectively deliver the best possible policing and security services for our communities and our country; and

· she wants to see, as she said when taking office, a ‘sea-change’ in the performance, administration and oversight of justice and policing in this state.

This will involve confronting deficiencies and failures; and it will involve examining, openly and transparently and vigorously, where there are operational practices that are simply not up to standard.

This is being done and it is at the heart of the Government programme of justice reform.

Because ultimately, the Minister wants to move from the concept of a police 'force' to delivery of a police 'service'; a service fit and ready to meet the realities, requirements and expectations of 21st Century policing.

Achieving this requires acknowledgment, it requires reforms; and it requires resources. The Government has begun the process of addressing the question of resources.

· it has provided funding for 400 new Garda vehicles;

· 300 Gardaí have recently entered Garda College in Templemore - the first new intakes since 2009; and

· arrangements are under way to civilianise immigration functions which will free up 150 Gardaí for frontline policing duties.

In presenting the Justice Reform Programme, the Minister has also stressed her priority objective of strengthening the role and remit of the Garda Síochána Ombudsman Commission (GSOC). The Bill now before the House seeks to deliver on this commitment.

As Senators will be aware, the primary functions of GSOC are concerned with dealing with complaints against Garda members and examining Garda practices and procedures. However, since its establishment under the Garda Síochána Act 2005, certain restrictions have existed in relation to the extent to which the GSOC functions can be exercised.

The preparation of the Bill has been informed by a public consultation process completed in May 2014, the Farmleigh consultation seminar in June 2014 which was attended by some 100 participants, representing key stakeholders, and direct contacts with GSOC.

The preparation of the Bill has also been informed by the valuable work carried out by the Joint Oireachtas Committee on Justice, Defence and Equality. As Senators will be aware, the Joint Committee report contained extensive recommendations following its comprehensive review of the current Garda Síochána legislation. This followed a series of hearings and visits to other jurisdictions.

The Minister is grateful to the Committee for the report and I am happy to say that today’s Bill addresses some of its recommendations. Indeed, very careful further consideration is being given to the report with reference to the preparation of the legislation for the proposed Policing Authority.

For the most part, the Bill before us amends the Garda Síochána Act 2005 which is the primary statute governing the Garda Síochána. Some of the amendments involved are technical in nature and I will deal with them more specifically as the Bill progresses. Amendments are also being made to the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and the Criminal Justice (Surveillance) Act 2009 to permit GSOC to exercise certain additional police powers.

I now turn to the specific content of the Bill:

Sections 1 to 3 are standard provisions containing definitions and technical amendments arising from later provisions in the Bill.

Section 4 extends the general time limit at section 84(1) of the Garda Síochána Act 2005 for making a complaint to GSOC from six to twelve months. This does not alter the current position under which it is open to GSOC to extend the time limit if it considers that there are good reasons for doing so. Senators will be aware that the issue of time limits was covered in the report of the Oireachtas Joint Committee.

Section 5 has to be read in conjunction with sections 12 and 13. It substitutes a new definition of ‘‘enactment’’ in section 98(5) of the 2005 Act, as amended, to remove the current prohibitions on GSOC exercising police powers under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and the Criminal Justice (Surveillance) Act 2009.

In that context Section 12 amends the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 to enable GSOC to undertake the interception of communications for the purposes of a criminal investigation by GSOC under the Garda Síochána Act 2005. The approach adopted is that a GSOC investigating officer will have the powers that would be available to the Garda Síochána in the same circumstances. In addition, the conditions and safeguards contained in the 1993 Act will operate where interception is sought by GSOC.

Similarly, Section 13 provides for amendments to the Criminal Justice (Surveillance) Act 2009 to enable GSOC to carry out surveillance where it is necessary in connection with a criminal investigation concerning an arrestable offence. In this context, GSOC will be in the same position as the Garda Síochána for the purposes of conducting such an investigation.

Section 6 amends section 102 of the 2005 Act to broaden the scope for the Minister to refer a matter to GSOC and to allow GSOC to investigate that matter even if the identity of the member of the Garda Síochána is not known at the time of the investigation or where the investigation may also involve a person who is not a member of the Garda Síochána. These are issues which were identified in the report of Judge Cooke as ones which could usefully be clarified and the Minister has undertaken that this would be done.

Section 7 inserts a new section 102B into the 2005 Act which brings the Garda Commissioner within the scope of GSOC investigations for the first time. This is also an area that was addressed in the report of the Oireachtas Joint Committee.

This section was the subject of debate during the passage of the Bill by the Dáil and, in particular, the question of whether the consent of the Minister should be required where GSOC proposes to undertake an investigation on its own initiative into alleged misconduct on the part of the Garda Commissioner.

After careful consideration, and reflecting that debate, as well as taking account of the key position of the Commissioner in security matters, the provisions of section 102B were strengthened at Report Stage to provide a specific role for the Government, rather than just for the Minister, in terms of important decisions to be taken under section 102B.

Senators will, of course appreciate that, in addition to carrying out her general policing functions, the Garda Commissioner is the head of the national Security Service. In the latter role the Commissioner fulfils a vital role which is very closely linked to the obligations of the Government to preserve the security of the State and, in these circumstances, the Minister believes it is appropriate that the Government should approve the granting or withholding of consent by the Minister where the conduct of the Commissioner is called into question.

Moreover she would emphasise that the original proposal has been further strengthened to ensure that in a situation where a request from GSOC to undertake an investigation into conduct of the Commissioner is being refused, this can only be done for stated reasons.

The practical reality is that would only be in exceptional cases that consent to a proposed investigation would not be given and, in these circumstances, specific reasons will be provided. Furthermore, the Minister believes that, on foot of a demonstrable concern that the Garda Commissioner may have committed an offence or behaved in a manner that would constitute serious misconduct, it is extremely unlikely in almost any circumstances that consent would be withheld.

Accordingly, subsection (1) of the new section enables GSOC to investigate, if it appears to it desirable in the public interest to do so, and subject to the consent of the Minister, given with the approval of the Government, any matter that gives rise to a concern that the Garda Commissioner may have committed an offence or behaved in a manner that would constitute serious misconduct.

Subsection (2) allows the Minister, with the approval of the Government, if he or she considers it desirable in the public interest to do so, to request the Ombudsman Commission to investigate any matter that gives rise to a concern that the Garda Commissioner may have done anything referred to in subsection (1), and the Commission is required to investigate that matter.

By subsection (3), the Minister may, with the approval of the Government, for stated reasons, refuse to consent to an investigation by the Ombudsman Commission of any matter under subsection (2).

Subsections (4) and (5) are provisions necessary to facilitate the operation of the section. In particular, adaptations are being made to the 2005 Act to ensure that GSOC will have the necessary powers to undertake an investigation involving the Commissioner.

Section 8 is consequential on the insertion of the new section 102B under section 7 and it amends section 103 of the 2005 Act which deals with keeping certain persons informed in relation to GSOC investigations.

Section 9 inserts a new section 103A into the 2005 Act and is intended to strengthen the flow of information from the Garda Síochána to GSOC, in particular under the protocol arrangements in place under section 108. Specifically, it imposes a statutory duty on the Garda Commissioner to ensure that information to be provided by the Garda Síochána to GSOC for the purposes of an investigation will be supplied as soon as practicable.

Section 10 replaces section 106 of the 2005 Act and allows GSOC, for the first time, to carry out an examination, on its own initiative, of practices, policies or procedures of the Garda Síochána for the purpose of preventing or reducing complaints. Currently, it can only do this when requested by the Minister and the change being proposed was recommended by the Oireachtas Joint Committee. The reports will be laid before both Houses of the Oireachtas, subject to the possible exclusion of certain matters, for example relating to national security or where the commission of an offence may be facilitated.

Just as GSOC is being given the power to initiate examinations into Garda practices independently, the Minister believes, in line with a further recommendation of the Joint Committee, that it should also be open to the Garda Síochána Inspectorate to do this. Accordingly, section 11 amends section 117(2) of the 2005 Act to enable the Inspectorate to conduct, on its own initiative or at the request of the Minister, inspections or inquiries in relation to any particular aspects of the operation and administration of the Garda Síochána. At present the Inspectorate can only conduct such an inspection or inquiry with the prior consent of the Minister.

I have dealt with Sections 12 and 13 earlier in connection with Section 5.

Section 14 sets out the short title, collective citation and commencement provisions for the Bill.

Before I conclude, Cathaoirleach, I would point out that the Minister is conscious that the changes proposed in this Bill will give rise to additional demands on the resources of GSOC, and also the Garda Inspectorate.

I referred briefly earlier to the Budget 2015 in respect of An Garda Síochána. I can also confirm to the House that Budget 2015 provides for an increase of €1 million in the allocation to GSOC and an increase of €250,000 in the allocation to the Inspectorate.

Throughout the recent public debate on Justice reform, the Minister has consistently made it clear that the reform must not simply be about change for its own sake.

Our reforms are about providing this country with the police force it needs, operating to the highest professional standards, ready to meet existing and emerging challenges.

Our reforms are about ensuring that, throughout the country, the men and women of the Garda Síochána will be fully supported by good organisational structures, practices and systems so that they can deliver the best possible policing and security services for our communities and their people.

Our reforms are about addressing broader systematic failures which have called into question the capacity of the Garda organisation to function properly and to carry out its core tasks.

Our reforms are about restoring the confidence of the public in the Garda Síochána.

I commend this Bill to the House.