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The report of the Commission on the Future of Policing in Ireland was published in September 2018 (see Criminal Justice Notes 2018). It is the first comprehensive review of policing structures, processes and values since the Garda Siochana was established over 90 years ago, and it offers extensive recommendations for significant change in policing, spanning: function, recruitment, training, discipline, governance, accountability, performance management, communications, technology, civilianisation, inter-agency partnerships, community policing, human rights, transparency and external oversight, among others.
Observers of Irish policing will know that there is a long history of proposed reforms being frustrated by inaction and obfuscation at the levels of government and senior Garda management. Adapting the successful precedent of the Patten Commission on police reform in Northern Ireland, the Commission astutely recommended the establishment of an Implementation Group to drive forward and secure the full implementation of its recommendations over a four-year period. The Irish government accepted the Commission’s recommendations in full; including, for the most part, its recommendations on implementation. Commendably, the government has moved quickly on implementation planning. In December, and signalling a break with tradition, it published some detail on the implementation structures, together with a four-year plan for the roll-out of the Commission’s recommendations.
Unfortunately, the Implementation Plan is a dense document. It is not written in a style that will be easily accessible to the interested reader. There is also a concern that the implementation structures are more complex and government-dominated than they need to be. The combination of these two aspects may yet serve to obscure and dilute the substantive implementation of the Commission’s recommendations.
Helpfully, the Implementation Plan bundles the recommendations into five distinct workstreams, consisting of: leadership and accountability; people; structures and operations; independent oversight; and partnerships. Rather confusingly, however, they are complemented by three “enablers”, namely: change capacity; communications and engagement; and legislation. These are presented as “enablers for the overall success of the programme”. However, apart from listing the legislative measures required to implement some recommendations, there is no further explanation of what these enablers will embrace beyond what is stated in the individual workstreams.
The substance of the Plan itself is set out across four phases dubbed: Building Blocks (first six months); Launching (6-12 months); Scaling (12-30 months); and Consolidation (30-48 months). The Building Blocks signify the commencement of those elements in each of the work streams that are considered key to the overall reform process. Launching involves the implementation of those essential elements with a view to laying concrete foundations for reform. Scaling refers broadly to continuation of reforms in the first two phases and commencement of most of the other elements in each of the work streams. Consolidation refers to the completion of ongoing reforms and the remaining elements in each of the workstreams. Such phasing is, of course, entirely sensible insofar as it essentially reflects a scale of implementation priorities. It is a pity, however, that it is obscured by terminology such as “Launching” and “Scaling” that can only serve to confuse the non-specialist reader.
A more substantial challenge lies in the manner in which the individual actions are presented in each of the Phases. The Plan does not provide a text which engages the reader with the substance of pertinent Commission recommendations and the implementation actions that will be taken on them in each Phase. Instead, it presents complex tables that merely state the actions that will be taken in each Phase, grouped together under the separate workstreams. The individual actions are cross-referenced to the relevant paragraph numbers in the Commission’s report. It follows that the user has to read the Implementation Plan alongside the Commission’s report and, typically, engage in tedious and disruptive reading of several discrete parts of that report for each implementation action. To complicate matters further, the user will have to move backwards and forwards across each of the Phases in order to get a coherent grasp of the actions on any single element within a work stream, or even of the workstream as a whole. The implementation actions for the 2019 Phases (Building Blocks and Launching) alone are further broken down into separate quarterly phases. While the greater detail is welcome from one perspective, the overall effect is to render the material more complex and inhibiting.
The check-box style of the Implementation Plan may serve management needs of government and the implementation bodies, but they will do little for the wider interests of transparency, community engagement and public awareness of the changes that will be rolled out under cover of implementation. Arguably, they render it more difficult for interested observers to assess whether the Implementation Plan delivers fully on the substance and spirit of the Commission’s recommendations. The heavy focus on the chronological phase in which a topic will be addressed, at the expense of substantive detail on the substance of what is planned, leaves much scope for implementation by box-ticking. The lack of detail on the substance of the boxes also leaves scope for more controversial reforms to be progressed without generating the public attention and scrutiny that they deserve. The treatment of national security and human rights respectively is illustrative of these concerns.
The Commission’s recommendations on national security are significant and controversial, especially for the Garda function, organisation and oversight. The only real hint of the roll out of these recommendations in the Implementation Plan is two lines on the establishment of a Strategic Threat Analysis Centre, coupled with a few scattered statements that literally do no more than state a commitment to: identify requirements for Garda security and intelligence capability; conduct a legislative review for national security; implement national security review findings; and draft/enact a Bill for an “independent examiner”. The lack of detail on what is envisaged on each of these actions leaves substantial scope for the government to pursue its own political and security interests under cover of implementing the Commission’s reform recommendations.
The difference in treatment of the independent examiner, relative to the other components of the national security plans is also revealing in this context. The independent examiner is intended as a form of oversight in respect of national security (a vital substitute for mainstream oversight mechanisms). However, the enactment of the necessary Bill to establish the office is scheduled for the last Phase (Consolidation) of the Implementation Plan. By contrast, the establishment of the Strategic Threat Analysis Centre and the appointment of a national security coordinator are scheduled for the first Phase (Building Blocks).
The Commission strongly emphasised the importance of human rights for all aspects of policing, including oversight. Commendably the Implementation Plan also foregrounds human rights. Nevertheless, it is lacking in the detail necessary to convince that the thrust of the Commission’s recommendations will be realised. The Commission, for example, recommended the adoption of statutory codes of practice to inform the exercise of police powers in the interests of fairness and transparency. In the Implementation Plan, however, this has inexplicably become the codification of legislation on arrest, search and detention. This suggests that the codes would merely define the existing police powers in question, rather than provide detail on how those powers should be exercised.
Among its human rights recommendations, the Commission also called for the establishment of a human rights adviser to assist its proposed oversight body (currently the Policing Authority) in assessing policing compliance with human rights obligations. In the Implementation Plan this is diluted to the Policing Authority merely considering the recruitment of a human rights adviser. There is no reference at all to the Authority (or its replacement body) actually appointing such an adviser. It is not until the final Consolidation Phase that there is a reference to the proposed replacement for the Policing Authority assessing Garda compliance with human rights obligations.
It is also worth drawing attention to the implementation machinery. As noted above, it appears more complex and government-dominated than it needs to be. The Commission recommended an Implementation Group composed of key stakeholders from the Garda and the government. It should be independently chaired by an “individual of high standing, well respected in Irish public life”, and supported by an Office with the appropriate expertise and resources.
The government has established the core Implementation Group and the supporting Office as recommended, but it has appointed one of the Commission members as the Chair. Moreover, it has also established “a High Level Steering Board” chaired by the Secretary General of the Department of the Taoiseach (Prime Minister) “to support and guide the work of” the Implementation Group. Ostensibly, this additional Board is justified on the basis of its capacity to act as “a clearing house for issues that cannot be resolved” by the Group, and to overcome blockages experienced in the implementation of the Plan. An alternative interpretation is that it is there to protect vested political and institutional interests in the sensitive police reform process.
It is important to recall that there has been no shortage of enlightened reform proposals on vital aspects of policing in Ireland from at least as far back as the 1970s. These have included the extensive and acclaimed recommendations of the Morris Tribunal of Inquiry and the copious recommendations of the Garda Inspectorate. However, vested interests within the Garda and government have managed quietly to ensure that too many of them have either not been implemented at all, or have been implemented in a manner that has defeated the motivation behind them. For all their weaknesses, therefore, the very fact that the implementation machinery has been established and the Implementation Plan published is a significant plus. Nevertheless, there remains the risk that the Commission’s recommendations will meet a similar fate to many of the recommendations that have preceded them. At the very least, they are at risk of being cherrypicked in a manner that will further tighten the control of vested interests at the expense of transparency and human rights in policing. The content and style of the Implementation Plan do not inspire confidence that these risks will not materialise.