In the Seanad on 2 March 2004, speaking on the 2nd Stage of the Garda Síochána Bill 2004, I said:

I welcome this Bill not least because it is long overdue. I see it as a necessary attempt to restore public trust in the Garda Síochána, a task hanging over us for some time, and one which we have largely ignored in recent years.

According to recent surveys, a very large proportion of the people of this country no longer trusts the Garda. That is an appalling situation and a contrast to what prevailed in the past. This should not take us by surprise, because for many years it has been clear that the existing mechanism for handling complaints against the Garda was fatally flawed. It was not able to do the job expected of it. Instead of addressing the problem, as a nation we let it fester. The evidence for that, if it were needed, was clearly shown in the massive sums in claims against the Garda that the Government had to settle in recent years.

I am on the side of the Garda Síochána. I am a Garda fan, if there is such a thing. I am particularly proud of the kind of policing tradition that we built up in this country since independence, the tradition of a small, almost totally unarmed force accepted by the population as being on its side, with very deep roots in the community it serves. In this age, to police a modern nation of 4 million people with only 12,000 gardaí is quite an achievement.

However, that success is built entirely on public trust. One can have that kind of tradition only if there is a very large reservoir of public confidence in the police force. Part of that confidence comes from knowing that whenever wrongdoing occurs, as it inevitably will in any organisation, it will be dealt with firmly and fairly.

That some wrongdoing is inevitable springs from the very nature of the job. Much police work is such that most of us are glad we do not have to do it, but somebody must do it and they must have special powers. We rely on their good character as well as on those rules and regulations to ensure they do not abuse those powers. Human nature being what it is, it would be unreasonable to expect that abuse will never occur.

What happens when it occurs is all important. If it is detected immediately and dealt with firmly and fairly, the damage is limited. If it is not nipped in the bud, it will go on creating damage in the force for a long time and will have quite an impact over a wider area. If one or two bad apples find they can get away with unacceptable behaviour, it has a negative effect on the rest of the force and it grows in seriousness as time goes on.

Not least of the serious implications is that unpunished bad behaviour swiftly destroys public confidence and trust not only in individual gardaí, but in the force as a whole. Before long, the Garda Síochána and the country suffer as a result of the wrongdoing of a small number of people. That is why it is in the interests of gardaí as well as the public to have a strong and totally independent system to deal with complaints against gardaí. We have lacked such a system and recent figures suggest we are paying the price. I welcome this Bill as a means of filling that gap.

Many people will argue that the system now proposed is neither strong nor independent enough. Perhaps some of the reservations will be met as the Bill goes through the legislative process. It has already been improved since the heads of the Bill were published last year, and all credit to the Minister for publishing them and for listening to some of the criticisms made subsequently, as mentioned by Senator Terry. I have no doubt the Bill can be further improved in this and the other House and I hope the Minister is open to further change.

I am embarrassed when people point out the difference between what is proposed here and the new arrangements in Northern Ireland. I would have thought that following the Good Friday Agreement, we would have fallen over ourselves to keep in exact step with any changes that took place in the North but, as we found out with the Human Rights Commission, the Government seems to attach little importance to creating parity between the two jurisdictions in such matters. I regret that and think it is a lost opportunity and one that weakens our hand in dealing with people from the North. I could understand, if we had a police tribunal, the need to take the security service out of it. There would have to be a solution in that regard. It is a pity that area has been overlooked.

As regards the new approach to Garda complaints, it is vital that we do not just pass the Bill into law and then forget about it. There is a natural tendency among legislators to think that once the President has put her name to a Bill their work is done and that whatever problems the particular Bill addresses will automatically be solved, but life is not like that. Very often, as soon as a new system is put into place, unforeseen weaknesses are revealed. Such shortcomings could easily be put right by tweaking the original legislation but we rarely revisit legislation to see whether it has worked out exactly as we intended.

I hope that will not happen in this case. We need to keep a close eye on how the Bill, once enacted, will work in practice. The simple acid test will be whether it succeeds in restoring public confidence to a point where people in general can say they trust the Garda Síochána. Until that has been achieved we still have a job to do.

This is a wide-ranging Bill that deals with much more than just a new system for complaints against gardaí. In effect, it sets out a new charter for how the Garda Síochána is to be run and, particularly, the relationship between the Garda Commissioner and the Minister and his Department. As somebody in business looking at the Garda Síochána as if it was a company with shareholders, a board of directors, a chairman and a chief executive, I admit that I am not too pleased by some of the provisions in the Bill. They seem to reduce rather than increase the commissioner’s freedom to do his job, which is not what we should be doing in this day and age.

As I went through the Bill, I asked myself how the powers of the commissioner stacked up against the powers of a chief executive officer in another occupation. Again, the answer is that they compare badly. I am not talking about a chief executive officer in a private company; I think the comparison is equally bad to chief executives in the public sector, such as the chief executive of a commercial semi-State body.

For example, if the commissioner wants to spend €1 million on motor cars - I am sure he probably spends more than that when he buys them - it is right that he should have to fight for his budget with the Department of Justice, Equality and Law Reform and the Department of Finance which lurks behinds the other Department’s shoulders. Having got his €1 million or whatever, it should be up to the commissioner to decide whether to buy Ford or Toyota motor cars. That should have nothing whatsoever to do with the Department of Justice, Equality and Law Reform or the Minister who should stay a mile away from the day to day administration of the Garda Síochána. I gather - I would like to hear the answer - what would happen is that the commissioner would have to go back to the Minister. It would be lovely if he did not have to but, from my reading of the Bill, it appears that those types of matters are handled not by the Minister, but some section of his Department. I would be delighted if my mind could be put at rest in that regard.

One can also get an idea of the extent of Government involvement when one looks at how appointments are made. In a semi-State body, the Government appoints a board which, in turn, appoints the chief executive who appoints any further staff needed. Sometimes the Government has a say in the appointment of the chief executive of the semi-State board. In cases of particular sensitivity, the Government may look for a say in the appointment of that chief executive, but that is quite rare and it usually leaves it to the board and accepts its recommendation. The Government would never get involved in appointments below that level.

Compare that to the situation in the Garda Síochána. In this case, as far as I can see, the Government appoints the chief executive - the Garda Commissioner - directly, with which I agree. It is vitally important the Government has special confidence in the person who occupies that job. However, I question the need for the Government to appoint the deputy commissioner and the various assistant commissioners. That gives the Government direct hiring and firing powers over the top management of the organisation. Is there a possibility that is a little too much?

However, before I even asked that question, I looked at the provisions in the Bill and discovered that the power of direct Government appointment is being extended even further, right down to the level of superintendent. I see no good reason to give the Government a say in appointments at that level. It is one thing for the Government to appoint the commissioner, with which I agree, but holding political power over appointments right down to the level of superintendent seriously undermines the perceived independence of the police force. It sends out all the wrong messages. I urge the Minister to at least rethink that provision.

My real concern is the balance between accountability and performance. We could have good accountability and we are moving in that direction because there is a need for it and for trust. However, it would be a shame if it damaged performance. I fear that will possibly happen. In business, one wants to attract the best recruits to one’s company. One, therefore, wants to attract the best recruits to the Garda Síochána. I am not sure a young person leaving school or university and who wants to make a future for himself or herself in the Garda Síochána would have the confidence to say that is where his or her career lies when he or she sees the Government making decisions which will inhibit the freedom to make decisions in many cases.

I understand the reason for the provision because there have been some anomalies in recent years. If that young recruit, who has joined the Garda Síochána, gone through training and is on the beat, sees trouble brewing, he or she will have to decide whether to get involved or stand back and let it sort itself out because he or she will not want to take steps which might get him or her into trouble. We are putting into operation something which is needed, namely, accountability, but if it restricts performance and the ability of someone to take action, it will not attract the right recruits. Even if we get the right recruits, they might hold back because of the constraints, restrictions and controls.

Policing is difficult and most of us would be unhappy to fulfil that role. In 1996, the Government introduced the strategic management initiative, which we all welcomed as a good idea. The strategic management initiative, or SMI, was passing responsibility down from the top, closer to where the action was. I do not get the impression that the SMI has worked as well as we had hoped at the beginning, although things do not always work out as planned.

When we introduce the Garda Síochána Bill, which is so heavily biased towards bringing control to the top, we are, even more so, working against the possibility of making the SMI work as a State policy. I query the extent to which it is working when one considers that we now have even more civil servants making and controlling decisions at those levels. I have some concerns about best practice working on that basis.

It seems almost as if someone in the Department of Justice, Equality and Law Reform saw the opportunity provided by this legislation to increase the Department’s hold over the small details of how the Garda Síochána is run. However, that is precisely the opposite direction to the one in which we should be moving. It will cause untold trouble in the years ahead if we end up with accountability and tight control but also end up with a Garda force that does not perform as well as we would wish. I realise that is not what the Minister wants but that is why I am questioning whether there is a need for such control in that area.

My main concern is whether the Bill will interfere with the performance of the Garda Síochána. The Minister said it better than I could have, when he spoke about the pride we have in the Garda Síochána. We are very proud of the Garda Síochána, which was established in 1922. It is an unarmed force of 12,000 catering for a population of 4 million and its record is very good. Let us ensure that the job gardaí have to do is not hindered or restricted in any way. We have had a problem with accountability and have, quite rightly, introduced this Bill. I hope, however, that when we examine the Bill in detail we will find a means to ensure that while accountability is achieved, performance will not be hindered in any way.