We decided to bring forward this Bill again, in light of the recent U-turn in government policy. It is regrettable that this newly-discovered policy direction is a reactionary rather than a genuinely reforming one – it has taken a stream of emerging Garda crises to pre-empt even minimal proposals recognising the need for reform in this regard. Reform proposals arising from such origins and prioritising political expediency tend to lack any meaningful and considered commitment, and risk producing the weakest legislative structure to underpin that reform. Though reform proposals are often easier to introduce from the top, sustained change is more likely when it is supported and demanded by the public, as this promotes accountability and transparency. The government is ambitious in its plan to establish an Independent Police Board by the end of the year, and we are re-submitting this Bill as a working draft to assist this process. If it is accepted at Second Stage, it can then form the basis for discussion, debate and amendment at a later stage.
The Bill establishes a Garda Síochána Independent Board, with monitoring, supervisory and oversight functions over the Garda Síochána. The Board’s functions include the human rights-proofing of all Garda policies, procedures and practices and the provision of detailed Codes of Practice for all key operational policies and procedures to include effective compliance measures.
The United Nations handbook on police accountability, oversight and integrity states, “An effective police accountability system should include an independent body that has complete discretion in the exercise of its functions and powers, has a statutory underpinning and independent and sufficient funding, reports directly to parliament and whose commissioners and staff are transparently appointed based on merit rather than any affiliation, such as an affiliation with a political party.”
In order to effect real reform and de-politicisation of the Garda structure, it is imperative that the proposed Board is strong and independent in terms of its functions and powers, and that there is a clear transfer of accountability of the Garda Commissioner from the Minister to the Board. Responsibility for the appointment of Senior Gardai, including the Commissioner and Assistant Commissioner, must be transferred from the Minister to the Board. There must be real and meaningful commitment by the Government to replace the current unsatisfactory medium of accountability through the Dail, to the more direct method of accountability of Gardai to the Independent Police Board, supported by a newly invigorated system of community policing.
The Bill proposes a 16-member board, to include 2 Irish Human Rights and Equality Commissioners, 4 members of the Oireachtas, the Ombudsman for Children, the Data Protection Commissioner, and the Chief Inspector of Garda Inspectorate. It is proposed that the remaining 6 members be chosen from citizen bodies, with a reserved place for the Traveller community. We believe that consideration should be given to the inclusion of 2 Garda Representatives from the low- and middle-ranks. This may go some way to improve Garda morale and to involve the Garda Siochana in the process of reform. This would allow the rank-and-file and middle-ranking Gardai more involvement and input in developing Garda policy than under the current hierarchical arrangement.
The Garda Inspectorate, which can look at practices, policies and procedures of the Gardai, should be answerable to the new Police Board, rather than the Minister, and should have greater powers of investigation, and its reports should be published promptly.
The local Joint Policing Committees must become a more meaningful forum for engagement between communities and the Garda Siochana. The JPCs should feed into the Board, and given that they would be answerable to the Independent Police Board, it is expected that we would see more of an appetite for engaging, from both sides.
The reforms of GSOC contained in our Bill recognise that its remit was always intended to be investigatory, rather than one of review and oversight. As the United Nations Office on Drugs and Crime has pointed out, “Independent police complaints bodies must have investigative powers, be able to initiate investigations of their own accord and intervene in investigations conducted by the police”. Under current legislation, GSOC is inhibited in this regard – a shortfall which has been highlighted by UN Special Rapporteur Ms Margaret Sekaggya. The Ombudsman asked the permission of the then Fianna Fail Minister for Justice to investigate policing at Corrib under Section 106, but was refused. In 2013, we appealed to Minister Shatter again to allow GSOC to use Section 106 to look at Corrib policing, and also, the allegation of racial profiling in the Gardai at the time of the Roma Children episode. Again, the Minister for Justice refused. Section 106 of the Garda Act is amended to address this.
The Bill also proposes the extension of Section 102 to include sexual assault, under the title of ‘serious harm’. It provides for the mandatory supervision by GSOC of all investigations arising from complaints; strengthens the obligations of the Garda Siochana to comply with protocols to provide information; and provides a statutory basic for access to PULSE. All the reforms proposed in this legislation have long been called for by GSOC and others.
If the Bill is allowed to progress to Committee Stage I would like to introduce further amendments in order to give GSOC the power to investigate the Garda Commissioner, and to allow serving members of An Garda Siochana to make complaints to the Ombudsman. Garda covert surveillance, which is dealt with in other legislation, must also be addressed.
The Bill amends many Sections of the Garda Siochana Act 2005, with the aim of de-politicising the police service. It increases the autonomy and independence of the Garda Siochana from central government and from direct ministerial control. The Bill removes excessive powers from the Minister to request information or documents from the Garda Commissioner, and removes the direct accountability which currently exists between the two. This third element to the Bill – the effort to de-politicise the Garda Siochana – was completely overlooked by Government speakers, including the former Minister, when it was debated last July. Events since then have demonstrated the need to address the unhealthy relationship that exists between the Commissioner, the Minister for Justice and the Government. In relation to Maurice McCabe’s complaint against the Commissioner, the Guerin Report comments, “the process of determining Sergeant McCabe’s complaints went no further than the Minister receiving and acting upon the advice of the person who was the subject of the complaint.” The then Justice Minister simply accepted the Commissioner’s response without question.
Over the last 18 months, our offices have been inundated with cases of alleged Garda malpractice, from members of the public, as well as from former, and serving Gardai. We need to have a detailed discussion about how to address these issues – these people have a right to be heard. Government action is required for justice to prevail.
This legislation is submitted as a working draft to stimulate debate, and is not proposed as a panacea to all ills. We are now at a stage where we have so many reports and investigations. What all of these point to, is the need for a fundamental root-and-branch review of An Garda Siochana. As Professor Dermot Walsh has pointed out, it is less than a decade since the Morris Tribunal reported and, “There is no reason to believe that the recent and prospective inquiries will be any more effective in delivering lasting reform. There is a systemic malaise in the Garda organisation that can only be tackled by the establishment of a Patten-style Commission with the remit and resources to conduct a thorough root and branch review of what we want from policing and how we should deliver policing in this country.” It is also crucial that any legislation put forward by government is accompanied by the political will to actually use it, otherwise there will be no change. Speaking of no change, Maurice McCabe is not at work today or yesterday. He is suffering harassment and abuse. He has been told by senior officers that he destroyed the force. He has reported the abuse through the proper channels. And there is no change. It is hard to believe that a man who has been so selfless and relentless in the pursuit of justice, could still be treated like this, given all we now know.
If this government is serious about real and meaningful reform of An Garda Siochana, it has much work to do. Placing an Independent Police Board on top of the existing Garda structure will not solve the problem – it would merely give a false gloss of legitimacy to a dysfunctional police force, which doesn’t amount to a service. The government could demonstrate its commitment by allowing this Bill to proceed past Second Stage – and not just park it there – by committing to a strong police Board, by publishing the Roma Children report immediately, by investigating properly – within one of the proposed reviews – the allegations of Traveller racial profiling, and by committing to the publication of all Garda codes. If the new Minister is genuinely committed to a new and reforming approach, I would ask her to immediately permit GSOC to open a Section 106 inquiry into Corrib Gas. What happened to the people there beggars belief. An Garda Síochána has always been at the mercy of the Minister for Justice and the Government of the day, accountable to them, and under their influence, when it suited Government members. Professor Dermot Walsh has warned that such “a huge concentration of police power in the hands of central government in the absence of adequate constitutional checks and balances is uncomfortably close to the arrangements associated with a police state.” Professor Walsh’s warning is hugely important, given An Garda Síochána’s “monopoly on legitimate use of force in civil society”. The citizen has a right to protest peacefully but that’s not what happened at Rossport, where democracy was suspended to facilitate the interests of Shell. Civil liberties were eroded, repression, criminality and a lack of accountability became the order of the day. The people of Corrib deserve justice. The people of Ireland deserve justice.