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discretionOn Tuesday, May 21st, 2013, statements were made on the issuing of fixed ticket charges and exercise of Garda discretion. Below is a copy of Minister Alan Shatter's main statement followed by Mick's response. You can view the full transcript of the debate with contributions from opposition party deputies here. You can watch the footage here.

Alan Shatter:

I am grateful for the opportunity to address issues arising from last Thursday's "Prime Time" programme. I regret that comments made by me may have inadvertently resulted in concerns being expressed that I am prepared to use confidential Garda information to damage a political opponent. Nothing could be further from the truth, but I am happy to offer reassurances to Deputies on this point. I give a solemn assurance to the House that I am not in the business of receiving, seeking or maintaining confidential, sensitive information from An Garda Síochána on Members of this House, the Seanad or anyone in political life, nor are gardaí in the business of providing it.

As Minister, it is necessary that I am informed of certain matters. Section 41 of the Garda Síochána Act provides a clear statutory basis for the information provided for me by An Garda Síochána. In turn, I am subject to the laws of the land in respect of the use to which I might make of that information, but, more important still, I am responsible to the House for how I discharge my office. The House will appreciate that there could be exceptional circumstances where it would be necessary for the Minister of the day with responsibility for justice to receive confidential information on the activities of Members of this House. It would arise, for example, if Members of this House were also involved with organisations carrying out terrorist activities. However, all Members of this House and I can agree that it would be absolutely abhorrent if An Garda Síochána were to collect information on anyone, regardless of whether he or she is involved in public life, for political purposes. There is no question of that happening. There are simply no circumstances in which I would countenance the abuse of Garda powers.

For my part, as Minister for Justice and Equality and Minister for Defence, I am acutely aware of the importance of ensuring confidentiality with regard to sensitive information and information relating to the security of the State. My discretion in maintaining confidences and not revealing information inappropriately is well known to many who have been writing and commenting on this controversy. On reflection, they would regard it as absurd to suggest I keep files on anyone.

I want to turn to the very particular circumstances in which I mentioned on "Prime Time" a particular incident involving Deputy Mick Wallace. I emphasise that, despite some of the subsequent commentary, I was making absolutely no allegation of wrongdoing on the part of Deputy Wallace in his dealings with An Garda Síochána. If I had been referring to some very serious incident involving the Deputy, no doubt he would have been immediately able to recall it. The manner in which I acquired the information was quite straightforward and there is nothing sinister about it. I have taken the allegations made about the integrity of the fixed charge notice system and the controversy that arose with great seriousness. In the circumstances, I asked that the allegations made be fully investigated and was briefed on the matter by the Garda Commissioner. During the course of one of our conversations in which a number of matters relating to the reports on the fixed notice charge issue were discussed, including circumstances in which gardaí exercised their discretion on traffic offences, the incident involving Deputy Wallace was mentioned by the Garda Commissioner. I most certainly did not request any information on Deputies and no big issue was made of the incident involving the Deputy. I have no doubt that the Garda Commissioner was mindful that Deputy Wallace might make public reference to the incident as part of the public controversy which was ongoing about fixed charge notices and, in these circumstances, he had a duty to mention it to me.

It is important to see this matter in perspective and context. Deputy Wallace and his colleagues put in the public domain a whole range of allegations about the operation of the fixed charge notice system and they had no way of knowing if they were true or not, many of which have since been disproved. They wanted to put in the public domain information on third parties, implying wrongdoing on their part, with no basis for any assertion of wrongdoing. Above all, they have been demanding transparency in this area. They wrote to the Taoiseach on 22 April saying the review which was taking place of the issue of penalty points must "address the lack of transparency surrounding the process". Their position seems to be that any information from whistleblowers, regardless of whether it is correct, should be placed in the public domain, but they are outraged when anyone provides information relating to this matter.

Despite the extensive nature of the investigation conducted under the supervision of Assistant Commissioner O'Mahoney and the report published, Deputy Wallace and other Independent Deputies continued to denigrate An Garda Síochána and sought to undermine public confidence in and damage the reputation of the force. They also rejected all of the conclusions contained in the report when it was clear to any fair-minded observer that some of the most serious allegations made had no basis in reality.

At the very start of the "Prime Time" programme Deputy Wallace stated gardaí should not exercise a discretion and that their doing so was unlawful. This was clearly a gravely serious allegation against An Garda Síochána. His initial comments were absolutist in this regard. I responded by saying gardaí could quite properly and lawfully use their discretion. I believed it was grossly unfair to suggest it was improper for gardaí to do so or that where a discretion was exercised in ease of a member of the public, the member of the public was engaged in some form of illegality. I believed that in the performance of my duties and functions as Minister for Justice and Equality it was necessary for me to ensure continuing public confidence in the force and that it was wrong of Deputy Wallace to pillory others for the proper exercise of a lawful discretion. It was my judgment that it was both necessary and in the public interest that I point out that he had been a beneficiary of that discretionary exercise. I believed there was an extraordinary inconsistency between what the Deputy had to say and what had actually occurred in his case. I made the point, not to make a political charge against him, nor for any personal benefit, but to defend the integrity of An Garda Síochána. I did not make any allegation of wrongdoing against him in his dealings with the Garda Síochána. In the context of the transparency demanded by him on this very issue and the information furnished to me relating to it, I was simply making the point that, like tens of thousands of others, he had been the beneficiary of Garda discretion being properly exercised.

I believe I acted in the public interest and my doing so should have none of the connotations some have ascribed to it. However, as I have acknowledged on other occasions, none of us has a monopoly of wisdom. If Deputy Wallace believes I did him a personal wrong by mentioning it, I have no problem in saying I am sorry.

It may be helpful to clarify the issue of Garda discretion in dealing with road traffic matters.  After our initial exchange on "Prime Time", Deputy Wallace acknowledged that it was okay for gardaí who stopped someone to exercise discretion but stated that, once a fixed charge notice issued, no discretion should be exercised by gardaí.  In his view, no matter what the circumstances, individuals should go to court if they seek to have a fixed charge notice cancelled.  What he does not take into account is that many fixed charge notices are issued as a result of speed cameras where there is no contact of any nature between the motorist and An Garda Síochána.  This reinforces the need for Garda discretion, properly exercised, even where a notice has been issued.

The distinction Deputy Wallace now makes would be unjust and not reflect reality.  If all of those who received fixed charge notices, in circumstances where the courts would inevitably dismiss any summons issued, were required to go to court, it would cause stress, inconvenience and financial loss to thousands of people, gardaí would be unnecessarily tied up in the courts and removed from regular policing duties, and there would be many thousands of unnecessary road traffic summonses to be processed by court clerical officers and backlogs in court proceedings, putting the Judiciary under unnecessary pressures.  This would delay the hearing by the District Court of other criminal prosecutions to the detriment of the public.

The presentation to date on this issue, by Deputy Wallace and his colleagues, pays no regard to any of these issues and the public interest in ensuring a common sense, cost effective and humane approach.  These are important issues to which I must have regard as Minister for Justice and Equality.

There are genuine issues that have to be addressed about the penalty point and the fixed notice systems.  That is why I sought a Garda investigation and why new procedures are being put in place in accordance with the recommendations made.  The Garda inspectorate will independently monitor the operation of the system and express its views on the reports that are furnished to it.  It is also the reason the reports have been referred to the Oireachtas joint committee for its deliberations.  I am, of course, happy to assist the committee in its deliberations if it asks me to do so.

Mick Wallace:

I would like to deal briefly with last weeks "Prime Time" programme and the Minister's allegation that I was stopped and cautioned by gardaí last year for the use of a mobile phone while driving. While I could not recall the incident at that time, I have since confirmed that a Garda car pulled up beside me while I was stopped at traffic lights at the Five Lamps in Dublin. I was not stopped or cautioned, and none of the gardaí got out of their vehicle. As others have noted, the politically motivated and personal attack on me represents a serious abuse of the Minister's power and privilege. I can confirm that I have written to the Standards in Public Office Commission and Data Protection Commissioner requesting them to investigate the matter.

Throughout our campaign for an independent public inquiry on the termination of fixed charge notices, we have only spoken of the issue of discretion in regard to fixed charge notices on the PULSE system. The Minister has consistently tried to misrepresent our position on discretion. I will make things clear for him once again. We have never stated that there should be no discretion in cases where, for example, someone is speeding to hospital with a sick child, rather, I have repeatedly said that this use of discretion must be subject to proper monitoring and oversight in order to ensure it is not open to abuse. At the current time, as the Minister knows, there is no legislation to provide for this discretionary power. This was confirmed by the Attorney General in 2006, who stated that if gardaí exercise this discretion it must be recorded. This recommendation was clearly not followed as the internal review found that the lack of paper a trail was one of the two main problems identified. In addition, the foremost authority on traffic legislation, Robert Pierse, has gone further and said under the current legislation the exercise of this discretion by gardaí is unlawful. Despite the Minister's claims, I am not opposed to discretion, as long as it is lawful and subject to a system of transparency, monitoring, oversight, appeal and a formal application process which can be evidenced by a paper trail. Furthermore, it should be a well publicised system which is accessible to all members of society, not just those who can count a senior garda among their circles of friends.

The Minister continues to misrepresent our position in order to minimise and rubbish the serious issues at hand, which have impacted on road safety, revenue for the State and, ultimately, the application of the rule of law in this State and whether it can be considered to be uniform, consistent and fairly applied. Since I and three other Deputies raised these issues, the Minister has tried to ridicule us, skew the debate and misrepresent our position, and has shown a fundamental lack of respect for us as elected representatives and for the meaningful operation and functioning of the Legislature.

Why did the Minister stoop to these unparliamentary levels? What is he trying to hide? If these issues are so minimal, why was he afraid to exercise his powers to order a special inquiry or to refer the matters to the Garda Ombudsman Commission and have them investigated in a transparent manner? That is the only way public confidence in the system would have been restored. Was he afraid that the ombudsman might act in an independent manner?

He repeatedly dismissed our calls for a public inquiry and has refused to explain why he did not use one of three options available to him to have this matter externally investigated. He told us that the internal review would answer all our questions. The truth of the matter is that the internal review was discredited as early as 7 December when the Commissioner rubbished it and said there was no basis for the allegations. It was discredited by the failure to interview or protect the two whistleblowers involved. Imagine the situation. Two whistleblowers came forward and provided a dossier which was a sample of what was going on, and nobody interviewed them. One could not make it up. The investigation was discredited by its terms of reference which were narrow, disproving, dismissive and minimising.

Finally, the Minister was not able to release the names of people who have had their fixed charge notices terminated. I did not ask him to do so. He was not able to release the name of a superintendent who has terminated almost 1,000 fixed charge notices for every offence possible. Some 700 terminations were squashed with excuses such as "Garda seeks cancellation" and "Garda wants termination". Serious questions must be asked, but the Minister chose to release the name of someone who did not get a fixed charge notice terminated, and who did not even receive a fixed charge notice.

The Minister says he released my name in the public interest. Is he serious and does he think people believe him? I do not think they do. It is not we who are undermining the Garda Síochána; it is the Minister.

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