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Garda Síochána (Amendment) (No. 3) Bill 2014 – Second Stage Speech by Minister Fitzgerald


Second Stage Speech by the Minister for Justice and Equality
Frances Fitzgerald TD
Garda Síochána (Amendment) (No. 3) Bill 2014

A Cheann Comhairle,
I move: that the Bill be read a second time.

The 2013 Garda annual report which I recently laid before the Oireachtas is a document worth reflecting. It highlights how:
· Operation Fiacla has led to a 7% reduction in burglaries;
· The reduction in road deaths between 2005 and 2013 still remains more than 50%; with Garda targets for compliance with speed limits, wearing of seatbelts and drink driving enforcement all met in 2013;
· In 2013, 260 organised crime gangs were targeted;
· 157 grow houses detected;
· 21,000 referrals to youth diversion programmes.

I recently visited Gardaí in Limerick who reported on the exceptionally high rate of detection of murders, leading to successful prosecutions.

I refer to these successes of policing because I believe it vitally important that we (and in particular us as members of Dáil Éireann) should not forget the on-going and valued 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.
As Minister for Justice, standing here in Dáil Éireann, I wish to state my sincere thanks to the men and women of An Garda Síochána.

Which is neither to minimise nor ignore the serious failures;
· 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, one law for some but not others.
Where all citizens 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 as of late.
We have seen confidence in policing eroded as a result of these controversies.

The vast majority of men and women joined An Garda Síochána with the sincerest of aspirations to provide the highest levels of service to the public. They are disappointed at the failures that have been uncovered and the controversies that have raged.

A commonly-shared determination and desire, within an Garda Síochána and among communities right across this country, is to see reform happen, to see a break from the past, to move on from these controversies, to a new period of confidence.

I want to see confidence trumping controversy.
· I want to see confidence restored in the work of An Garda Síochána;
· I want 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
· As I said when I took office, I want to see 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 will be done
Because ultimately, I want 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 require resources.

Last week’s budget began to address the question of resources.
· It provided funding for 400 new Garda vehicles;
· 300 Gardaí have recently entered or will shortly enter Garda College in Templemore (the first new intakes since 2009);
· We are civilianising immigration functions which will free up 150 Gardaí for frontline policing duties.

And we are reforming…

As a member of the Cabinet Committee on Justice Reform chaired by an Taoiseach; and more particularly as the responsible line Minister, I am leading the implementation of a comprehensive programme of justice reform.

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 Deputies briefly on the other important elements of the Justice Reform Programme.

· The preparation of the Scheme of a Bill to provide for the establishment of the independent new Policing Authority is being progressed and will be submitted to Government as quickly as possible.
· The Public Appointments Service has sought expressions of interest for the position of Chairperson of the Policing Authority who, when appointed, will assist in the appointment of the Garda Commissioner as well as preparations for the establishment of the Authority;
· The Public Appointments Service is also currently managing the first open competition to appoint a new Garda Commissioner. I expect the new Commissioner to be appointed as soon as possible;
· The Independent Review Mechanism, consisting of a panel of counsel, is currently examining a range of complaints, some alleging Garda misconduct or problems with investigating misconduct or problems with investigations throughout the criminal justice system;
· The publication of the Garda Síochána Inspectorate’s crime inspection report is expected in the near future. The report will deal with crime recording and investigation, and will also deal with the concerns which I referred to the Inspectorate in relation to Garda operational issues raised by Mr. Seán Guerin SC in his report to the Government earlier this year;
· Work is being finalised on the establishment of a Commission of Investigation into matters identified in the Guerin report;
· The Fennelly Commission of Investigation set up to examine the operation of telephone recording systems in certain Garda Stations over many years, as well as other matters, is well under way;
· The report of Judge Cooke’s inquiry into reports of unlawful surveillance of GSOC has been published and GSOC recently published a redacted version of the report it commissioned into the possible disclosure of confidential information.
· The review of An Garda Síochána under the Haddington Road Agreement should be complete by mid-November;
· The recruitment of a new Secretary General for the Department is well underway;
· The Protected Disclosures Act 2014 has amended the Garda legislation to allow Garda members to make “protected disclosures” to GSOC in confidence in respect of alleged Garda misconduct.
· The recently enacted Freedom of Information Act 2014 extends to the Garda Síochána.

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

As Deputies 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 in 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 earlier this year, the Farmleigh consultation seminar which was attended by some 100 participants, representing key stakeholders, and direct contacts with GSOC.

While it is regrettable that no member of the house, other than myself, attended the event in Farmleigh, I do wish to acknowledge that some of the opposition spokespeople were represented by their staff and I wish to thank those staff members for their input.

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 Deputies will be aware, the Joint Committee has recently produced a report containing extensive recommendations following its comprehensive review of the current Garda Síochána legislation. This followed a series of hearings and visits to other jurisdictions.

I am grateful to the Committee for the report and I am happy to say that today’s Bill addresses some of its recommendations. As I have stated in this House, very careful consideration is being given to the report with reference to the preparation of the Scheme for the Policing Authority.

For the most part, the Bill we are now discussing 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. Deputies 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 I have 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.

The preparation of the new section was the subject of particular attention, 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 very careful consideration I am satisfied that, taking account of the key position of the Commissioner, especially in security matters, it would be appropriate that the prior agreement of the Minister should be obtained.

However, I would emphasise that refusals to give such a consent should only be for very good reasons which should be communicated to GSOC. In those circumstances I believe that it would only be in exceptional cases that the Minister would not consent to a proposed investigation.

Accordingly, Subsection (1) of the proposed section 102 B enables GSOC to investigate, in the public interest and subject to the consent of the Minister, 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. If the Minister refuses to consent to such an investigation, he or she will be required, under subsection (3), to provide reasons to GSOC for that refusal.

Subsection (2) allows the Minister, in the public interest, to request GSOC to investigate any matter that gives rise to a concern that the Garda Commissioner may have done anything referred to in subsection (1), and GSOC is required to investigate that matter.

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 improve 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, I believe, 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, Ceann Comhairle, I would stress that I am 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, I have 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.