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Dáil Diary no 52 – 25th September  2015

Still No Real Reform of How we do Policing…

 

The Minister for Justice Frances Fitzgerald has finally introduced the Police Authority Bill, with the usual, not unexpected, fanfare. The Bill is a serious disappointment, as it leaves the paws of the Government of the day, all over Policing. We really need to depoliticise Policing in Ireland, and this Bill does little or nothing for this objective. What I would say about it, is that it is consistent with so much of the hallmark of this Government – A lot more spin than substance. The media coverage of the Bill was at least as disappointing as the Government’s effort – Ireland would be so much a better place if we had a serious, independent media. Here’s my 20 minute contribution in the Dáil. -

“I would have liked to have an hour. Before the summer, we did a great deal of work on this legislation and went through the various sections. I will have time to cover just a few sections today. Generally speaking, I consider that the proposed authority is much weaker than the one we proposed in our Bill. It is clear that ministerial and political control over the authority, the Garda Síochána and the Garda Commissioner is to be retained. The proposed authority will be a weak and toothless body tainted by Government and ministerial influence. It will not have the capacity to provide adequate oversight and monitoring functions over An Garda Síochána and the Garda Commissioner. It will not have the capacity to hold the Garda Síochána and the Garda Commissioner to account.

 

The Government seems to have missed the point completely regarding the primary function of the authority, which is to provide democratic accountability. A policing authority should be a way for the citizens to hold the Garda to account through a more direct form of democratic accountability than is currently provided for through parliamentary accountability of the Garda through the Minister for Justice and Equality in the Dáil. Membership of the authority is to consist of Civil Service representatives and people with legal and human rights backgrounds. There is no mention of representation of civil society groups or minorities, who are most at risk of Garda malpractice, as we had proposed. The Bill permits the authority, subject to the consent of the Minister, to ask the Garda Síochána Ombudsman Commission to investigate any behaviour of the Garda Commissioner in the context of his or her functions relating to policing matters that leads it to believe the Commissioner may have committed an offence or behaved in a manner that would constitute serious misconduct. How can the authority be expected to hold the Commissioner to account when it cannot investigate the Commissioner without the Minister's consent? The Commissioner remains under the political protection of the Minister.

 

The issue of national security remains one of the over-riding issues in the proposed legislation. Uniquely in Europe and other common law countries, An Garda Síochána has responsibility for both policing and national security issues. Conor Brady, who is a former GSOC commissioner, has noted that the invoking of national security by An Garda Síochána to prevent full investigation is already a huge obstacle. Under the proposed legislation, the Minister is the final arbiter if there is disagreement on whether an issue is considered a policing or a security one. As the Minister may be self-interested in this categorisation, it is illogical to consider this a safeguard of any sort. The proposed definition of national security includes "acts intended to subvert or undermine parliamentary democracy of the institutions of the State but not including lawful advocacy, protest or dissent unless carried on in conjunction with any of those acts." It is clear that the current Government would consider the May Day and Shell to Sea protests, and more recently the water charges and water installation protests, to come under this national security heading. This would allow the Minister to retain full and direct control. Therefore, the authority would have no role to play in any policing issue arising.

 

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald That is ridiculous.

 

Deputy Mick Wallace: Information on Mick Wallace Zoom on Mick Wallace I have mentioned some of the issues in Part 1 - sections 1 to 7 - of the Bill, so I will not go back over them. Part 2 of the Bill relates to the personnel and organisation of the Garda Síochána. On the appointments issue, section 8 of the Government's Bill sets out that the Garda Commissioner and any deputy Garda Commissioners are to be appointed by the Government and the Government shall accept the nomination of the authority. However, the authority can only nominate in accordance with the recommendation of the Public Appointments Service, PAS, which will provide it with one name only. The authority will have to seek the prior written approval of the Government before it can ask the PAS to undertake a selection competition. It will also have to get the approval of the Minister before agreeing the selection criteria and process with the PAS for the competition. Furthermore, the Government may veto the authority's nomination in "exceptional circumstances", a phrase that is not defined.

 

Section 8 also sets out that if the Garda Commissioner or any deputy resigns, he or she will have to address his or her letter of notification to the Minister, and the Government will notify the authority later that the Commissioner or the deputy has resigned. Under the Government's new Bill, removal from office may be by Government decision alone, with only a duty to consult the authority if the reason relates to policing services. This is for the same reasons set out in the 2005 Act. The authority can only recommend to the Government that the Commissioner or deputy be removed if the reason relates to policing services. In any event, the Government is obliged only to consider that recommendation and not to act upon it.

 

This Bill also provides that both the Government, for policing and State security reasons, and the authority, in terms of policing services, have the power to remove assistant commissioners, chief superintendents and superintendents. It also proposes that the Ministers for Justice and Equality and Public Expenditure and Reform will determine the number of appointments to assistant Garda Commissioner, chief superintendent and superintendent but that the authority may make these appointments, subject to a selection competition and any regulations that may be made. As this means the system under the 2006 and 2014 regulations will remain in place, it will not be a question of selection by the PAS. Instead, the promotions advisory council and the promotions advisory board, controlled by the Garda Commissioner and the Minister, will decide the candidates that the authority will be asked to rubber-stamp.

The power of the authority has been weakened since the proposed heads of the Bill in November, in which the authority alone had the power to remove assistant Commissioners, chief superintendents and superintendents from their positions. Now, both the Government and the authority have that power.

 

It is difficult to see how An Garda Síochána can be expected to function as a cohesive and disciplined body when, depending on one's rank, one can be removed by, and thus answerable to, one, two or even three different bodies, namely, the Government, the authority and the Garda Commissioner. Further confusion arises where one body appoints and another has the power to remove, for example, in the case of assistant Commissioners, chief superintendents and superintendents, where the authority makes these appointments - at least nominally, with the Minister deciding how many appointments are to be made - but both the authority and the Garda Commissioner can remove such appointees.

 

The authority should have full power of appointment of the Garda Commissioner, subject only to consultation with the Government. It is unfair and irrational to ask the authority to be responsible for systemic issues and policies and performance issues when it cannot appoint or remove those responsible for implementing those policies and priorities, in other words, the Garda Commissioner and the deputy Commissioners. Given that the assistant Commissioners, chief superintendents and superintendents all work in a hierarchical structure under the Commissioner and deputy Commissioners, who are appointed by the Government, giving the authority the power to appoint and remove them is meaningless. Furthermore, this power of the authority is largely circumscribed by existing regulations regarding promotion, which will continue. Through these regulations the Minister and the Commissioner will continue to make these decisions through their proxies on the promotion board. It is also unfair and irrational to expect the authority to be responsible for resources, budgets and staffing if it has no part to play in deciding the number of appointments to be made to senior management ranks, for example, assistant Commissioners, chief superintendents and superintendents.

 

On the code of ethics, the Bill now proposes that the authority shall, within 12 months, establish a code of ethics that includes standards of conduct and practice for members and internal whistleblowing provisions. However, the authority is obliged to consult more bodies than the Minister would have had to consult had she ever drafted the code of ethics. For example, the authority will have to consult the Garda unions whereas the Minister would not have had to do so under the 2005 Act. The authority also has to consult the Ministers for Justice and Equality and Public Expenditure and Reform. In addition to European policing standards, the authority must also have regard to the policing principles when drafting the code of ethics. The clause regarding a breach of the code of ethics being a breach of discipline which was in the heads of the Bill in November is not in the finalised legislation. Similarly, the code of ethics as guidance for gardaí in carrying out their functions was included in the very important new policing principles but has been removed. Currently, the 2007 discipline regulations ensure a breach of the code of ethics, if it existed, would be a breach of discipline. However, the regulations are only secondary legislation and can be revoked at any point by the Minister and regulations, when drafted or being revoked, never go before the House to be debated as they are just the exercise of Minister's executive power. Therefore the authority will bring in a code of ethics with great fanfare but breaching it will not be a breach of discipline because of the changes in this Act. There will be no sanction for breaching the code, rendering it meaningless.

 

The introduction of the trade unions as one of the bodies the authority is required to consult is curious as the Minister would not have been required to consult the unions if she had ever gone ahead and drafted a code of ethics. There is a requirement to consult the Garda Commissioner as representative of an Garda Síochána and this really would have been sufficient. It is curious also that there is a requirement to consult the Minister for Public Expenditure and Reform, as setting standards of conduct and policing practice cannot be considered an industrial relations issue. There is no reference to the code of ethics or the Garda code being published. The biggest problem with the newly proposed legislation is that there will be no sanction for breaching the code of ethics which makes it meaningless. This is even weaker than the position under the current 2005 legislation, where we have no code of ethics because no Minister ever went ahead and drafted one.

 

On the roles of Minister, the authority and the Garda Commissioner, the Bill now proposes that section 20 be amended in order that the authority, with the written approval of the Minister, shall determine the priorities of the Garda Síochána and establish performance targets and can only determine or revise them following consultation with the Garda Commissioner. The Minister will lay these priorities before the House on receipt from the authority. The Commissioner must inform the authority of measures taken to achieve the objectives of the priorities determined and performance targets established and supply that information within the time specified by the authority. Regarding security services principles, the Commissioner shall follow the same procedure but just be answerable to the Minister.

 

Section 21 sets out that the strategy statement shall be submitted by the Commissioner to the authority rather than to the Minister for approval but removes from the authority the power the Minister had to set the form and the manner of the statement. The Commissioner is required to have regard to Government policy, the priorities determined by the authority regarding policing and the Minister regarding security. The Garda Professional Standards Unit, GPSU report under section 24 shall now be submitted by the Commissioner to the authority and not to the Minister. The Minister's power under section 25 to issue directives to the Commissioner remains solely with the Minister and the authority may only recommend to the Minister that he or she issues a directive. The Bill provides a new power to the Minister to issue directives to the authority also. The Commissioner is still required to have regard to any relevant policies of the Minister or the Government and any ministerial directive issued to him or her when performing his or her functions, along with the new policing principles, as per section 5.

 

The authority cannot be considered independent from the Minister if it is in a linear hierarchical relationship with the Minister, as is demonstrated by the power in the amended section 25 which permits the Minister, on the approval of the Government, to give written directives to the authority regarding any of the authority's functions under the Act and the authority shall comply and shall also inform the Minister of the measures taken by the authority to comply. There is limited usefulness in severing the Commissioner's linkage with the Minister if it is intended to restore this linkage at the authority level. It is no use just sticking the authority in between the Minister and the Commissioner if the authority itself answers to the Minister and so becomes just an extra link in the same chain. As argued by the Irish Council for Civil Liberties, "if it is to break the historic cycle of unwholesome ministerial influence on policing, Ireland's new authority must be fully independent". Furthermore, the authority is not given any power to issue directives to the Commissioner. The authority can only recommend to the Minister that a directive regarding policing be issued to the Commissioner from the Minister. The Minister's power under the 2005 Act to give directives to the Commissioner, that is, to give direct orders to the Commissioner, remains the same and is not even shared with the authority. Thus there is no change in the potential for direct ministerial influence on the Garda Commissioner's operational control of an Garda Síochána. The Irish Human Rights and Equality Commission, IHREC, emphasised that the independence of the police service from Executive control is central to the credibility and capacity of the police service to protect human rights, yet An Garda Síochána remains under direct Executive control under the new proposals. There is also no change to section 26(3) which makes the Commissioner directly accountable to the Minister in the performance of his or her functions and those of An Garda Síochána. This accountability provision has been criticised by Professor Walsh as reinforcing ministerial control powers by rendering the Commissioner statutorily accountable to the Minister for the first time in the history of the State.

 

On the issue of accountability, Part 5 now proposes no change to section 40 which sets out that the Garda Commissioner shall account fully to the Government and Minister through the Secretary General for any aspect of his or her functions, including the duty to provide any document. Clearly, the Commissioner remains accountable to the Minister and Government only. The new Bill just adds a section setting out that the Commissioner shall report to the authority with regard to policing services to facilitate the performance by the authority of its functions under this Act and extends the duty of Commissioner to provide documents to the authority also. The wide breadth of communication between Minister and Commissioner remains under section 41 and a clause is added to set out that if and in so far as a report by the Commissioner to the Minister relates to policing services, the Minister shall inform the authority of those matters. The Minister does not even have to provide the authority with a copy of the report. Furthermore, there is no comparable duty on the Commissioner inserted to keep the authority informed on significant developments relating to policing, for example, peace and public order, but only to keep the authority informed of matters relevant to the authority's functions.

 

No change is proposed to section 47 to provide the authority with crime statistics. Surely crime statistics should now be reported to the authority and not the Minister, or at least to both. It will be difficult for the authority to deal with policy issues if it is not entitled to the full statistical data that are available. There is no change to section 40 regarding direct accountability to the Government and Minister nor to section 40(2) and the all-encompassing duty on the Commissioner to provide any document or statement in the possession of An Garda Síochána that the Minister requests, for example, documents relating to Deputy Paul Murphy's arrest, which Professor Dermot Walsh has referred to as an "alarming provision".

 

The Bill, as published, rows back on commitment in the heads of the Bill to make the Garda Commissioner fully accountable to the board alone regarding policing matters. As with the 2005 Act, the Commissioner is to remain solely accountable to the Minister and Government. This is a fundamental change to the proposal in the heads. What is the point of having a Garda authority if it is not being asked to hold the Commissioner to account and if the Commissioner remains lawfully accountable to the Government and Minister? The Commissioner's duty to provide updates regarding policing continues to be owed to the Minister rather than the board, which is also a departure from the proposal made in the heads.

 

According to the legislation, the first eight members of the Garda authority will be directly appointed by the Government following advertisements that were placed in June. The first authority will set the tone for the relationship between the authority and the Garda Commissioner and Garda Síochána. This is a negative step for an authority that is supposed to be strong and independent and mark a departure from politicised policing.

 

Membership of the authority is to be drawn from Civil Service representatives and individuals with a legal or human rights background. The failure of the Bill to make reference to representation of civil society groups is a major disappointment. In addition, the Garda authority should include some political representation, albeit not a majority, with the Opposition and Government being given equal representation. This would be in line with a recommendation made by the Irish Human Rights and Equality Commission, Dr. Vicky Conway and Professor Dermot Walsh. In an effort to retain Government control over the authority, the proposals do not allow for any political representation or membership, perhaps because to do so would require Opposition involvement.

 

The chairperson-designate of the Garda Authority is a career civil servant who was appointed without an interview process, having resigned as head of the Revenue Commissioners one month prior to her appointment. This was clearly a set-up and means of exerting and re-channelling ministerial influence through the chairperson by having, as it were, the Minister's man on the inside. The process used amounted to an interference in the independence and impartiality of the Garda authority before it has been even established. Moreover, Josephine Feehily was involved the selection of the new Garda Commissioner in her first indirect wielding of political power over policing.

As the Minister will be well aware, Deputy Clare Daly and I introduced Garda Bills in 2013 and 2014. The Garda authority proposed in our legislation is unrecognisable in the authority proposed in the Bill before us. I do not know how the Minister can claim the authority is independent when it clearly has the paws of the Government all over it.

 

Lack of speaking time means I have only referred to some sections of the Bill. That this legislation does not stand up to serious scrutiny with regard to independence is a major disappointment. The Minister had an opportunity to do things much differently and God knows that is needed. I do not mean anything personal in expressing serious disappointment with the Bill as I do not know how much control the Minister or her officials had over the final document. I wish things were different and we had a policing authority that bore some resemblance to the authority proposed in our Bill.”

 

Mick Wallace.

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