A few weeks ago, the Irish Minister for Justice published the ‘General Scheme of the Policing, Security and Community Safety Bill’. It aims to provide the Garda Síochána and policing in Ireland with a completely new statutory framework. By any standards, the publication of such a proposed Bill is a seminal event. It was described, perhaps not unreasonably, as “the most wide-ranging and coherent reform of policing in a generation”.
When the current legislative framework was introduced just 16 years ago (2005), the Minister of the day described it then as containing “the most important legislative proposals on policing ever to come before the Houses of [Parliament]”, and as providing “a modern constitution for a modern and even more professional police force at the beginning of a new century”. When it was amended only ten years later by provision for the establishment of a Policing Authority, the Minister of the day described the latter as “a sea change in the oversight of policing in the State”.
It might be deduced that Irish Ministers of Justice are fond of hyperbole. An alternative assessment is that the Irish government has been scrambling erratically under political and media pressure to be seen to be injecting human rights, accountability and transparency into Irish policing. In doing so, however, there is at least a suspicion that it has been keen to preserve its traditional capacity to shape and direct Garda policies, practices and priorities.
The proposed Bill, announced a few weeks ago, is the latest in the series and has been presented as being based on the recommendations of the report of the Commission on the Future of Policing in Ireland which was published in September 2018. Nevertheless, there seems little reason to believe that the Bill signals any principled departure from the established norm. Arguably, it expands and deepens central government control over policing; extending the tentacles of that control right down into police-community engagement at the local level. At the same time, it fragments the architecture of police governance and accountability in a manner that diminishes transparency and independent scrutiny and obscures where power and accountability lie.
The proposed Bill runs to almost 400 pages, incorporating 252 sections (Heads) and seven Schedules. Although this Note is significantly longer than usual, it is not possible to deal with all aspects. Accordingly, attention will focus primarily on the governance and accountability provisions.
Commission proposals on governance and accountability
Much of the proposed Bill seems to build on what, arguably, are the most confused and ill-conceived parts of the recommendations of the Commission on the Future of Policing; namely those on Garda governance and accountability. In a nutshell, the Commission envisaged a fundamental revision of some key reforms introduced in 2005 and 2015. These reforms had, among other things, inserted an independent multi-member Policing Authority into the Garda governance mix, and established an independent professional inspectorate to subject Garda management, methods and performance to regular scrutiny.
The Commission envisioned the Garda as a State body with the Garda Commissioner as its chief executive accountable to a multi-member non-executive Board under the overall responsibility of the Minister for Justice and government. The Policing Authority would be renamed the Policing and Community Safety Authority and reduced essentially to an advisory and oversight role aiming to promote continuous improvement in policing and community safety. The Inspectorate, the leading success story from the 2005 reforms, would disappear as a separate entity and be subsumed within the diminished Policing Authority.
The proposed Bill takes these questionable proposals and, arguably, makes them worse from the perspectives of coherence, transparency, effective accountability and human rights. It replaces some existing bodies and adds new ones to create a complex and bewildering web encompassing: a Garda Board, a Policing and Community Safety Authority, National Community Safety Steering Group, a National Office for Community Safety, a Director of the National Office, a Garda Ombudsman, an Independent Examiner of Security Legislation, Inspectors of Policing Services, Local Community Safety Partnerships, various statutory chief executives and a statutory Audit Committee, among others. All of this is in addition to the traditional core of the Garda Commissioner, the Minister for Justice and Oireachtas (parliamentary) Committees.
The Commission on the Future of Policing envisaged the office of Garda Commissioner (equivalent of London Metropolitan Police Commissioner) as the unequivocal chief executive of the Garda. The proposed Bill goes some way in that direction. It extends the Commissioner’s exclusive power of appointment, removal and promotion in respect of all ranks in the Garda up to, and including, that of Assistant Commissioner. He or she will also have the flexibility to determine numbers in each ranks and members’ terms and conditions of employment (including remuneration). Currently, most of these powers are either vested in the Policing Authority or subject to Ministerial regulations.
Direction and control over gardaí
Interestingly, the proposed Bill stipulates that gardaí (police officers) are subject to the direction and control of the Commissioner in carrying out their functions. Again, this reflects the normal relations between a chief executive and his or her staff. Gardaí, however, differ fundamentally from the staff or executive officers of a corporate body. Each of them is entrusted directly by law with the full complement of police powers to exercise in accordance with their own independent judgment in any individual instance.
Critically, “functions” in the proposed Bill are defined to include powers. It would seem to follow that the Commissioner is being given the power to direct members on whom to arrest (or not), whose house to search (or not), which individuals to be targeted (or not) in the exercise of public order powers, and so on. If correct, that would amount to a fundamental change in the traditional status of a member of the Garda. It could also pave the way for political policing and an unprecedented encroachment by the Commissioner into the operation of the criminal process in individual cases.
Superficially, the provisions identified above will effect a shift in power and status away from government (and the current Policing Authority) to the Commissioner. Other provisions in the proposed Bill, however, will subordinate the Commissioner even more tightly to government influence and direction in the exercise of the office than is the case at the moment.
The first indication of this is the provision restoring government control (from the Policing Authority) over the appointment and removal of the Commissioner and Deputy Commissioner. Equally striking is the unprecedented provision imposing a maximum time limit of five years (with a possible extension of up to two years) on an appointment to the office of Commissioner. This makes it much easier for the government of the day to ensure that the incumbent is to its satisfaction, without having to suffer the politically difficult and destabilising effects of securing the removal of an incumbent who is showing too much independence of thought.
Implementing government policies
In any event, there will be virtually no scope for the Commissioner to pursue policies and strategies that do not reflect the government’s preferences. The Commissioner will be statutorily obliged to carry out his or her duties in accordance with prescribed policing and security priorities, a three-year strategic plan, an annual service plan, a multi-annual capital plan, allocated resources and relevant Ministerial/government policies and directives. This represents a significant departure from the current arrangements. Not only are the requirements of the strategies and plans expressed in more detail, but the Minister and Board (see below) are given much more control over their contents. It seems clear that the Commissioner is reduced to the status of their chief executive.
Significantly, the proposed Bill does not state that the Commissioner is generally independent in the exercise of his or her office. Commendably, it does include an express provision asserting the Commissioner’s independence from the Minister and the Board in decision-making with respect to certain law enforcement, public order maintenance, prosecution and Garda discipline matters in individual cases. This is a welcome contribution to protecting these matters against external political, institutional or other interests.
It would be foolish, however, to think, that the independence provisions will protect operational policing wholly from such interests. The proposed Bill provides many routes for them to travel and to make their presence felt. Moreover, as noted above, there is no hiding from the fact that the Commissioner’s general management of the Garda and control over policing and security policies and strategies will be heavily subordinated to the Minister/government and the Board.
The Commissioner’s subordinate status is copper-fastened by a provision in the proposed Bill that renders him or her expressly accountable to the Board for the performance of his or her functions (with the exception of those aspects in respect of which he or she is expressly independent, as identified above). The proposed Bill also retains the Commissioner’s duty to account fully to the government and the Minister through the Secretary General of the Department of Justice in respect of all matters affecting the policing and security of the State.
Police state aspect
These accountability arrangements include the extraordinary duty on the Commissioner to provide the Minister or the government with any document in his or her power or control when requested to do so by the Secretary General of the Department of Justice. There seems no reason why this could not extend to, for example, compromising police intelligence on political opponents. It is also worth noting the retention of the provision that empowers the Minister to issue a binding directive to the Commissioner on any matter relating to the Garda. Collectively, these provisions provide essential ingredients for the emergence of a police state; should an administration be minded to go down that road.
Each year, the Commissioner must prepare an annual report on Garda performance. Currently, the Commissioner’s annual report on policing services is submitted to the Policing Authority. Significantly, the proposed Bill envisages the annual report being submitted in the first instance to the Board. After having been adopted by the Board, is it submitted to the Minister. The Policing Authority falls out of the picture.
The Garda Board
Powerful and influential
A striking innovation in the proposed Bill is provision for the establishment of a Garda Board at the very heart of Garda governance and accountability. Just like the current Policing Authority, it will consist of eight members and a chairperson. It seems, however, that it is designed to be a more powerful and influential body than the Authority, and it will even acquire some of the core functions of the latter (some of which are already noted above).
Broadly, the Board will oversee and monitor the governance and performance of the Garda. It would appear that this will include a hands-on role in appraising the performance of the Garda Commissioner. The Board will also have the power to recommend the removal of the Commissioner (and Deputy Commissioner), and the government must consider any such recommendation. As noted above, the Commissioner will be statutorily accountable to the Board for the performance of his or her functions.
Shaping Garda strategies, policies and management
Critically, it appears that the Board will play a core and influential role in shaping policing in the State. It will adopt, and can amend, the Garda Commissioner’s three-year strategic plan before submission to the Minister. Much the same applies to the Commissioner’s annual service plan. It will also monitor the implementation of the three-year plan and adopt the Commissioner’s annual report before forwarding it to the Minister.
The Board will play a central role in the budgetary and financial management of the Garda, including appointing the members of the Audit Committee to advise the Commissioner on financial and management matters. It will be the Board, not the Commissioner, who draws up the Garda governance framework document for submission to the Minister. Moreover, the Board will be able to substitute for the Commissioner in appearing before a parliamentary committee to answer for the general administration of the Garda.
Superficially, it may appear that the addition of a relatively strong external Board to Garda governance will free the Garda and policing from the stifling effects of narrow political and departmental interests, and thereby create the space for professional policing to flourish. It is submitted, however, that the envisaged Board is likely to have the opposite effect, and that may well be the underlying intention. The envisaged membership seems to reflect an even narrower constituency, and will be even closer to the Minister, than the current Policing Authority. Critically, the first cohort of members, who could remain in situ for up to eight years, will be handpicked by the Minister.
Significantly, the Board is not stated to be independent in the performance of its functions. Indeed, it is expressly stated to be statutorily accountable to the Minister, who can also remove individual members and, in certain circumstances, the whole Board. Interestingly, the Secretary to the Board will be a senior Garda staff member, and the Board may also appoint other Garda staff members to assist the Secretary. It can also establish committees and appoint ‘outsiders’ to them.
Vehicle for government control
There is a very real sense here that the core of Garda governance is being sucked back from the potentially democratising effects of a more broadly based Policing Authority. Significantly, the latter was introduced about five years ago in response to a crisis of confidence over the unhealthily close relationship between senior Garda management and narrow government interests. What is being proposed now seems to be a ‘back to the future’ restoration of full-blooded central political and institutional control under the cloak of an ‘external’ Board.
The Policing and Community Safety Authority
Despite the establishment of the Garda Board, and the transfer to it of some key functions of the current Policing Authority, the proposed Bill does not wholly dispense with the latter. It does, however, replace it with a new body under the title of the Policing and Community Safety Authority. The broader title reflects a broader remit. In terms of status and punch, however, it seems clear that the new Authority will survive only as a shadow of its current self, which is already too weak and limited to deliver a meaningful external input into Garda governance and accountability (see (2018) 81(4) Modern Law Review 622-645).
Advisory and support body
The objective of the new Authority is to “oversee and assess”, in an independent and transparent manner, Garda performance in the delivery of policing services (to the exclusion of State security services) in order “to support” the effective provision and continuous improvement of such services to “the benefit of the safety of the public”. It seems clear at the outset, therefore, that the Authority is likely to be little more than an advisory and support body promoting crime prevention and detection and community safety. Shaping senior Garda management and holding them to higher ethical standards and professional performance have receded, if not disappeared.
Weak and peripheral role
The wording of the revised Authority’s functions confirms its relegation to a weak and peripheral role. It will merely “keep under review” the delivery of the objectives of the annual service plan. The same applies to the National Community Safety Strategy in relation to Garda and policing services, and a range of internal management matters related to performance and efficiency. It will also “advise on and monitor” implementation of recommendations from inquiries etc in relation to Garda and policing matters. It will “promote”: policing principles, professional policing standards, public awareness of policing matters, inter-agency cooperation, community engagement in enhancing community safety and research. It will also keep itself generally “informed” of trends in the Garda use of force, on crimes committed and on complaints against gardaí.
No enforcement teeth
As will be seen below, the new Authority will absorb the current Garda Inspectorate and its capacity to conduct inspections into any aspect of Garda operation or administration. That, however, represents a damaging downgrading of the Inspectorate function. The Authority will retain its role in establishing a Code of Ethics for gardaí, but this has all the appearance of window-dressing. The Code has no enforcement teeth. The Garda Commissioner merely must take such steps as necessary to ensure that each member has read and understood the Code. There is not even an express reference to it in the matters that should be included in the Commissioner’s annual report.
The Garda Commissioner is not rendered accountable to the revised Authority (in contrast to his or relationship with the new Garda Board). At most, the Commissioner must report to the Authority with regard to policing services to facilitate performance of the latter’s functions under the Act.
Lack of real independence
The proposed Bill expressly states that the revised Authority (in line with the current Authority) will be generally independent in the performance of its functions. That rings hollow, however, in light of other provisions which will have the effect of severely curtailing its room for manoeuvre independently of the Minister and the Board.
The first cohort of members will be handpicked by the government and they could be in situ for up to eight years. Their terms and conditions are determined by the government, which also has the power to remove them. Moreover, the revised Authority’s first statutory chief executive will be hand-picked by the Minister. It is also worth noting that it is the Authority’s chief executive, rather than the chairperson of the Authority, who will appear before parliamentary committees to account for the Authority. This signals a diminution in the status of the latter.
Relative subordination to Minister
In its three-year strategy plan, the revised Authority must have regard to any relevant government or Ministerial policies and objectives. Similarly, its annual business plan must have regard to, among other things, the Garda priorities, strategic plan and annual service plan which, as noted above, must have the approval of the Minister and Board. Ultimately, the Authority will report to the Minister.
A weak force in Garda scrutiny
Overall, the revised Authority seems to have been designed to function as a compliant cheerleader for the Garda, the Board and the Minister. It is difficult to envisage it being anything more than a toothless, advisory, fringe player. That is not the same as saying that it is worthless. Nevertheless, it is about as far from what is needed to inject real democratic and transparency values into police accountability as it is possible to get in this context.
The Commission on the Future of Policing in Ireland acknowledged that crime and harm prevention cannot be left to the police. It requires an inter-agency approach from a wide range of government, public and voluntary bodies, as well as engagement with local communities. Accordingly, the Commission advocated greater integration between these other bodies and the Garda, a more structured approach to community engagement in combating crime and promoting community safety and a greater focus on local policing plans.
Controversially, the Commission seemed to envisage significant central government influence in this area, including the abolition of the current joint policing committees which provide a forum for democratic input into policing at local authority level. The Commission’s analysis also entailed a heavy emphasis on protection against crime and threats to community safety at the expense of attention to accountability and transparency in respect of the Garda itself.
Central government influence
The proposed Bill broadly reflects the Commission’s recommendations in this area. In doing so, however, it introduces a whole new complex of strategies and bodies to what is already a crowded field. Of particular concern is the manner and extent to which it facilitates the injection of central government tentacles into the minutiae of policing, crime prevention and harm reduction activities in local communities up and down the country.
National Strategy and Steering Group
The proposed Bill provides for a National Community Safety Strategy to be drafted by the Minister for Justice, with input from other relevant Ministers, for government approval. The objective is to create a framework and programme of action to promote coordinated and cohesive multi-disciplinary approaches, inter-agency collaboration and engagement by local communities. This will be implemented by a National Community Safety Steering Group to be established in accordance with regulations made by the Minister.
In addition, there will be a National Office for Community Safety with responsibility for promoting and monitoring the delivery of the objectives of the National Strategy under the direction of the Steering Group. Once again, it is the Minister who will make regulations on the functions of the Office. Significantly, these will include developing workplans, providing training and guidance and support to local community safety partnerships, monitoring progress on the ground and disbursing resources to support local community safety plans.
The National Office will have a statutory Director to implement the policies and decisions of the Steering Group. He or she will be appointed (and can be removed) by the Minister who also determines the Director’s staff, funds, premises etc.
The proposed Bill replaces the current, local authority based, joint policing committees with Local Community Safety Partnerships. These are envisaged as fora for discussing community safety concerns and for preparing and implementing local policing plans. One or more can be established in each local authority area. Once again, however, the controlling hand of the Minister is evident in the background.
The Minister will make regulations for the Partnerships. These may provide for: their establishment, composition and dissolution; their role and procedures in preparing etc the policing plan; and their functions. Many of their prescribed functions revolve around developing, adopting, implementing and monitoring three-year local community safety plans in accordance with guidance from the National Office, as well as reporting on their activities to the National Office and the Policing and Community Safety Authority. The Ministerial regulations can also provide for the establishment and operation of area-based neighbourhood community safety fora.
Garda complaints process
Failure of current model
The Garda Síochána Ombudsman Commission (GSOC) was meant to deliver independent investigation of complaints against the Garda. It commenced operations in 2007. Put bluntly, it has been a disappointing failure. It would appear that its investigations have resulted in criminal or disciplinary proceedings against gardaí in less than three percent of allegations admitted for investigation. Too often, investigations have failed the needs and interests of complainants. None of this can be attributed to fault or weaknesses on the part of GSOC members. The body was never designed and resourced to succeed.
The Commission on the Future of Policing recommended the replacement of GSOC with a new procedure that focused on incidents rather than individuals, with a view to promoting learning and improvement within the Garda. In addition, the process should be clear and simple to enhance both swiftness and transparency. The Commission also recommended a new name for GSOC that would not convey the impression that it is a part of the Garda (as is the case with the current name).
A single Ombudsman
The proposed Bill does provide for a name change from the Garda Síochána Ombudsman Commission to the Office of Garda Síochána Ombudsman! More encouragingly, it will establish the office as a single Ombudsman (with a Deputy) rather than a three-person Commission as at present. I have long argued that the multi-member design was a mistake (see (2004) Irish Criminal Law Journal 2-12. The Bill also contains provisions which will streamline aspects of the procedure. While most of these changes are worthwhile in their own right, it is highly unlikely that they will have any material effect on the ridiculously low ‘success’ rate.
State security block
The proposed Bill does little to address the vexed question of restricted GSOC (and its successor’s) access to parts of Garda stations, documents, information etc that are deemed by the Garda to involve State security interests. The only concession in the Bill is for such conflicts to be adjudicated in the first instance by a new Independent Examiner of Security Legislation (see below). Ultimately, however, the final determination in such cases remains with the Minister. Inevitably, this curtails the appearance and substance of independence in sensitive investigations where independence is needed most.
Ominously, the new complaints body will be stripped of GSOC’s capacity to examine a Garda practice, policy or procedure in certain circumstances. This is a significant regression in terms of transparency and accountability as the power is the only real independent facility to probe and shed light on murkier aspects of Garda illegality, corruption or improper practice in everyday policing. It is no response to say that that function has simply been transferred to the inspectors under the wing of the new Policing and Community Safety Authority in the interests of rationalisation and efficiency. The latter will have neither the freedom nor the inside knowledge of their GSOC counterparts to initiate and pursue such investigations. The change can be interpreted as the government clamping down on the investigation of matters that they and the Garda would prefer not to be investigated.
Abolishing the Inspectorate
As noted in the April issue of these Criminal Justice Notes (https://blogs.kent.ac.uk/criminaljusticenotes/2021/04/06/combating-garda-corruption/, the current Garda Inspectorate is one of the few success stories in the ongoing Garda reform process. Its many reports are outstanding for, among other things, identifying clearly the manner and extent to which aspects of Garda organisation, management, processes and methods fall below international best practice in the delivery of a police service and in tackling internal corruption, inefficiency and neglect. Shamefully, the proposed Bill will abolish the Inspectorate and its capacity to shine a torchlight on uncomfortable truths about weaknesses in the Garda. This aspect alone raises serious questions over the thinking behind some of the proposed reforms.
Downgrading the inspectors
In line with the facile recommendations on the matter by the Commission on the Future of Policing, the proposed Bill abolishes the Inspectorate and confers an inspectorate function on the proposed Policing and Community Safety Authority (replacement for the current Policing Authority). As such, the initiation and conduct of inspections will be vulnerable to the weaknesses associated with that Authority, as outlined above. Indeed, the inspectors will merely be part of the Authority’s staff.
Ministerial and Garda influence
Significantly, the Minister and Garda management will also be given plenty of notice about Authority plans for inspections, and hence the opportunity to prevent or shape those with which they are not comfortable. The proposed Bill stipulates that the Authority’s annual business plans must set out priorities for inspections and how they will be carried out in a manner that is proportionate, accountable and transparent and ensures integrity and objectivity of findings. In doing so, the Authority must have regard to Garda priorities, the Garda three-year strategic plan, the Garda annual service plan and the National Community Safety Strategy and Strategy Statement!
Garda as State security service
One of the disturbing features of the Garda Síochána, relative to its counterparts in comparable jurisdictions, is the fact that it combines the State’s primary security service with the civilian police service in the Garda. This has an immensely constricting effect on the capacity of ‘independent’ bodies envisaged by the proposed Bill to deliver Garda accountability, as they are effectively excluded from policing activities that come under the broad umbrella of State security. It is also a severe constraint on transparency in Irish policing.
These negative aspects are accentuated by the extraordinarily broad and open-ended definition given to State security in the proposed Bill. Preventing, detecting and investigating offences under the Offences against the State Acts and other specified measures, for example, can extend deeply into aspects of everyday policing. No comfort can be taken from the exclusion for “lawful” advocacy, protest or dissent. Given the exceptionally broad discretion enjoyed by gardaí in this area under the public order legislation and common law, this exclusion will provide little protection for protestors targeted by the Garda.
It would be naïve in the extreme to think that the exceptionally broad definition of State security will not result in police accountability and transparency being blocked to serve powerful political, institutional and other sectoral interests. As explained above, the proposed Bill swings control over the Garda and policing decidedly back in favour of these interests. Moreover, it will be the Minister for Justice who has the final say on what is, and is not, a matter of State security in the event of a conflict.
Independent Examiner of Security Legislation
Building on recommendations of the Commission on the Future of Policing, the proposed Bill provides for the establishment of an Independent Examiner of Security Legislation (similar, but not identical to, the UK’s Independent Reviewer of Terrorism Legislation). Given the extraordinarily broad scope of security legislation, this Office is potentially of major significance in protecting against, among other things, the drift to a police state. However, there is little reason to be confident that it can deliver on that potential, given the internal conflicts in its role and its emphasis on promoting effective security legislation.
The proposed Bill stipulates that the Examiner shall assess whether security legislation is necessary, proportionate and effective while containing appropriate safeguards for human rights. In addition, it must support the government in protecting the security of the state by assessing whether the legislation is adequate and effective to protect against security threats and by promoting efficiency and effectiveness in addressing such threats.
Influencing ‘independent’ investigations
As noted above, the Examiner will also function as a preliminary gatekeeper for bodies such as the Garda Ombudsman or Authority inspectors seeking access to Garda stations, documents and information etc in the face of Garda resistance on State security grounds. The implication is that the government will consider the Examiner more trustworthy than the other independent bodies in respect of security matters. It also means that the Examiner will be in a powerful position to influence the conduct and outcome of ‘independent’ investigations by these other bodies in respect of complaints or concerns that are likely to be of major interest and controversy.
Surprisingly, the Examiner will also assume prescribed examination and review functions in respect of certain intrusive Garda surveillance measures, interception of personal telecommunications and gathering personal phone etc traffic data. Currently these functions are discharged by an independent judge specifically appointed for the purpose. Transferring them to the Examiner introduces the risk that the independence of the oversight etc will be compromised by the Examiner’s other hat in supporting the government in protecting the security of the State.
It is worth noting at this point that, although the Office is designated the ‘Independent’ Examiner of Security legislation, the first incumbent will be handpicked by the government. Moreover, the Examiner’s choice of persons to assist him or her can be overridden by the Taoiseach (Irish prime minister) or the Minister for Justice.
Primacy of Garda secrecy
Despite these checks, it seems that the government is still demurring to the primacy of Garda secrecy in sensitive matters that can conceal the most outrageous Garda corruption and illegality. Under the proposed Bill, even the Examiner will not always have full access to security related documents, information etc. There is express provision for redactions in advance to protect international intelligence and, critically, situations where revealing the identity of a person may endanger the life or safety of that person. The classic example of the latter is a Garda informant. It seems that the secret security State is being protected even against the government’s ‘independent’ Examiner.
Two versions of the facts
A further indication of the ‘dark’ State lurking behind a façade of transparent independent oversight in these matters is presented by the express provision for the Examiner to submit dual copies of a report on the same matter to the Taoiseach when considered appropriate. One, for public consumption, will omit sensitive information, while the complete version will be for the Taoiseach’s eyes only. There is something unsettling, even Kafkaesque, about an official and an unofficial government document in such matters.
Lack of substance on human rights
The biggest disappointment with the proposed Examiner Office is the lack of substance on its human rights safeguarding role. There is a sense in which this aspect is mere window-dressing. If the government was seriously committed to rigorous human rights auditing of State security legislation, for example, it could at least have given the necessary powers and resources for that aspect of the function to a human rights body, such as the Equality and Human Rights Commission.
Particularly disappointing is the failure to provide expressly for the Examiner to publish comprehensive data on the Garda exercise of powers and use of procedures under security legislation. On this aspect, the proposed Bill merely states that the Examiner should ensure information is available to the extent possible without prejudicing the security of the State. By comparison, the publication of detailed and coherent data on the use of security powers and procedures is an important feature of the role of the UK’s independent Reviewer of Terrorism Legislation. This is a vital tool for promoting transparency, facilitating outside scrutiny and informing public debate on the use of the powers and procedures.
The report of the Commission on the Future of Policing emphasised that the promotion and protection of human rights should be at the very core of policing and Garda governance and accountability. So, for example, it stated that the Garda needs a comprehensive strategy for human rights compliance and promotion. This included the establishment of a human rights unit at a high level within the Garda to implement, monitor and develop a human rights strategy. Equally, it required adherence to human rights-based processes and frameworks which are transparent and accountable. There must also be clarity and transparency on Garda powers and on Garda codes of practice on the exercise of those powers.
Failure to deliver
The proposed Bill has little of substance to say on these matters. Indeed, its’ relative silence on them is a signal and telling feature of the envisaged statutory framework and its vision for Garda governance and accountability. Its references to human rights relate almost exclusively to the rights of victims and potential victims of crime and/or harm; and even these are lacking in substantive detail.
In policing, transparency is an acid test of human rights sensitivity. The Garda record in this area is deplorable. It does not even publish regular statistics on its use of coercive powers and procedures. Much the same applies to publication of its policies and codes of practice. Despite the clear recommendations on the subject from the Commission on the Future of Policing, the proposed Bill merely states that the Garda Commissioner must ensure that statistical information on offences, criminal proceedings and the state of crime is compiled and published. The emphasis is clearly on crimes committed and prosecuted, to the exclusion of statistics on the exercise of Garda powers and their use of coercive procedures. Without regular detailed statistics on the latter, it will be very difficult to deliver effective human rights and transparent scrutiny of policing in Ireland.
Human rights is not the only important aspect of the Commission’s recommendations that is largely ignored in the proposed Bill, despite the government’s pretension that the Bill is based on the Commission’s report. Another key example concerns the Garda role in charging and prosecuting criminal offences. The Commission, very sensibly, recommended removing this function from the Garda. The proposed Bill, however, expressly provides for its continuance.
It is worth bearing in mind why the proposed Bill has been introduced. It is meant to be a response to the public crisis on policing and criminal justice provoked by a seemingly endless series of Garda scandals involving major allegations of corruption and/or neglect. The failure to prevent and/or remedy them was heavily associated with a perception that there was a deep-rooted, mutually self-serving, cosy relationship between the government and senior Garda management. The Garda protected the government in its State security role, and it appeared to serve as a buffer blunting political attacks on the government’s competence in policing and criminal justice. The government, in turn, seemed to protect the Garda against the damaging effects of allegations of corruption, neglect, inefficiency and nepotism.
The solution to the policing and criminal justice crisis was widely acknowledged to require at least a fundamental overhaul in the structures and principles of Garda governance and accountability. This would entail an injection of transparency and human rights into the core of those structures and of policing generally, as well as distancing Garda management from the stifling hand of the Department of Justice and government.
Some timid and piecemeal steps were taken in that direction only five years ago with, among other things the establishment of an independent Policing Authority between Garda and government. Now that the immediate crisis has passed, the government would appear to be moving cynically to reverse those steps instead of strengthening them.
Given the context, it is deeply ironic that behind the façade of the complex structures of Garda governance and accountability envisaged by the proposed Bill, government control over the Garda and policing will be restored in an even more concentrated form. In other words, the solution to the crisis in the Garda and policing is more of what contributed to it in the first place. Everything changes, but nothing changes. That seems to be how it is in policing in Ireland.
Finally, it is worth noting that there are a number of typographical errors in the text of the proposed Bill. One of the more unusual is surely Head 252 which provides for an amendment to the Fisheries (Consolidation) Act 1959. This is concerned with inland fisheries and does not appear to have anything to do with policing and community safety. Presumably, it has migrated somehow from another file in the Department.