CHECK AGAINST DELIVERY
Private Member’s Bill
Garda Síochána (Amendment) Bill 2017
Second Stage speech
A Cheann Comhairle,
At the outset, I want to thank Deputy O’Callaghan for the opportunity to engage with Members on the critically important issues of Garda accountability and oversight.
Indeed, I welcome the opportunity for Members of this House to reflect on the role and work of the Policing Authority which I believe is undertaking very valuable work since its establishment.
While I acknowledge and appreciate that the Bill purports to provide the Authority with additional powers in line with Recommendations contained in the Joint Committee’s December 2016 Report of on Garda Oversight and Accountability, I regret that I must oppose the Bill now before the House. My opposition is primarily but not limited to the issue of its timing which doesn’t take account of the process underway through the Commission on the Future of Policing in Ireland or the legislation governing the Policing Authority, in particular section 62O of the Garda Síochána Act 2005. There are further serious difficulties with the Bill which I will outline later in my speech.
I must, unfortunately, draw the attention of the House to the substantial grounds that exist for opposing the Bill.
It goes without saying that the Government is fully supportive in principle of the Policing Authority having appropriate powers so that it can carry out its oversight functions in an efficient manner
Commission on the Future of Policing
A fundamental difficulty with the Bill is that it is being introduced at a time when the Commission on the Future of Policing in Ireland, established in April 2017 following consultation with the parties opposite, is undertaking a comprehensive examination of all aspects of policing.
That examination will comprehend all functions currently carried out by An Garda Síochána and the range of bodies with oversight and accountability roles; namely, the Policing Authority, the Garda Síochána Inspectorate, the Garda Síochána Ombudsman Commission, the Department and Government.
I note in particular that Deputy O’Callaghan is on record as welcoming both the membership and the full terms of reference for the Commission and, indeed, has committed his party to working constructively with the Commission.
The House will be aware that the Commission is to report by September 2018 and it may, in accordance with its terms of reference bring forward immediate proposals and rolling recommendations for implementation in advance of its final report.
The terms of reference require the Commission to bring forward proposals addressing the following five themes:
- structures and management arrangements required for the most effective delivery of policing (including all functions currently carried out by An Garda Síochána);
- appropriate composition, recruitment and training of personnel;
- culture and ethos of policing;
- appropriate structures for oversight and accountability; and
- legislative framework for policing.
I want to emphasise again that “oversight and accountability” is one of the five themes under consideration by the Commission.
While I appreciate that the Deputy’s Bill has been initiated in the spirit of trying to contribute positively to the overall governance and oversight architecture for An Garda Síochána, I strongly believe that progressing this Bill through the legislative process has the potential to cause uncertainty for the Commission. This is particularly so given that the Commission is also required to examine the legislative framework for policing.
Having said that, I fully acknowledge that there is a serious need to further reform the governance framework for policing in the State and this is evidenced in the terms of reference set for the Commission by the Government.
There is a clear consensus in the House as to the need for reform and I would have thought that there should also be consensus on the methodology by which that reform would be identified and effected – namely, on foot of the Commission’s report and recommendations.
I’d like to take this opportunity to again encourage Members to engage with the Commission on the Future of Policing in Ireland as it goes about its important consultation and analysis.
Policing Authority to prepare a report on effectiveness of Authority and adequacy of its functions
Furthermore, I must draw Members attention to section 62O of the Garda Síochána Act 2005. This is the section that requires the Policing Authority to prepare a report on the effectiveness of the Authority and the adequacy of the functions assigned to it by the legislation. The report can contain recommendations for improving the effectiveness of the Authority and must be submitted to me, as Minister, by the end of this year and I am required to lay that report before the Houses.
While it is, of course, accepted that the Authority must have whatever powers it needs to carry out its oversight functions, it is premature of the legislature that gave them the role of identifying any gaps in the legislation to then presume to know the answers before the Authority has spoken. In my view, it would be better to wait to hear from the Authority and to then consider what legislative changes are required. It would then be for this House to decide whether to make such changes in the early part of 2018 or whether to wait for the Commission report in September. Instead, if this Bill is enacted in advance of either the Authority or Commission reports, we run the risk of being accused of failing once again to deal comprehensively in a holistic way with the accountability and governance of the Garda Síochána.
Indeed, the very fact that we have commenced legislative consideration of the Bill could be construed as evidence of a fragmented and incoherent approach to the much-needed reform of An Garda Síochána.
Policing Authority views on the Bill
While it is clearly the case that law-making in the State is the exclusive prerogative of the Oireachtas, I felt that it would assist our deliberations if the views of the Policing Authority on Deputy O’Callaghan’s Bill were sought. I want to place on record my appreciation of the time taken by the Authority to engage positively with the Bill and for providing me with their analysis. In its observations, the Authority has some concerns with the Bill, in particular, about the implications for its independent oversight role should it be conferred with the supervisory or operational powers outlined in the Bill. In the view of the Authority, the Bill has the potential to weaken the clarity in the existing statutory framework about the role and function of the Commissioner’s responsibilities and accountability and compromise the independent oversight role of the Authority.
The Authority is also of the view that the Bill is premature at this juncture given the ongoing work of the Commission on the Future of Policing in Ireland. It considers that the Commission should be allowed to complete its work and produce its report.
The Authority also makes the point that it does not have any role in relation to the security of the State and that accordingly, it would not be in a position to assume the responsibilities in the Bill that relate to security.
Bill makes no distinction between policing and security matters
Taking up this point about security, I now want to address what is perhaps the most serious difficulty with the Bill; namely that it makes no distinction between policing and security matters.
Deputies will recall that, during the passage of the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015 through the Houses, the Oireachtas decided that the Authority was to have no role in relation to security services. Rather, the 2015 Act established a reporting relationship between the Garda Commissioner and the Authority in relation to policing services. This distinction between policing and security is in part, intended address any constitutional issues concerning the delegation of the Government’s executive powers under article 28 of the Constitution.
However, the Bill now before the House makes no distinction between security and policing services and serves to give the Authority oversight over the security functions of An Garda Síochána, putting these provisions in direct conflict with the other sections of the Garda Act dealing with the functions of the Authority and brings the Bill and by extension the Act, if the Bill were to be enacted, into potentially difficult constitutional terrain.
But even if there were no constitutional issues, the Bill makes no concession to the fact that the other provisions in Garda Act that delimit the Authority’s remit to policing services. Instead, if we enact this Bill, the Authority will be both excluded from dealing with security issues and responsible for directing the Commissioner in relation to them. I fail to see how this can be right.
Main provisions of Bill and key areas of concern
I now turn to the main provisions of the Bill and I will outline some of the key areas of concern always bearing in mind the concerns already outlined in relation to security matters.
Section 2 of the Bill requires the Commissioner to keep the Authority fully informed of each and every matter that has required an internal review, audit or examination of the functions or operation of An Garda Síochána and which were requested by the Garda Commissioner, a Deputy Commissioner or any Assistant Commissioner.
In practice, current legislation enables the Authority to require the Commissioner to provide it with any reviews, audits or examinations that it considers necessary for the performance of its functions.
I would refer the Deputy to section 41A(2) of the Garda Síochána Act 2005 under which the Authority can require the Commissioner to furnish a report on “any matters connected with policing services or the performance of the functions of the Commissioner relating to such services that may be specified in the requirement”. The Commissioner is obliged to provide that report and the Authority can publish it.
This provision is additional to the provision at section 41A(1) of the Act which requires the Commissioner to keep the Authority fully informed of matters relevant to the functions of the Authority and any other matters that the Commissioner considers should be brought to the attention of the Authority. This is the provision that the Minister relies on for the receipt of reports on important matters from the Commissioner. It would seem odd that different criteria were to be applied to the provision of material to the Authority than applies to the provision of material to the Minister and the Government. This is particularly so given that the Commissioner remains fully accountable to the Minister for the performance of the Commissioner’s functions and those of An Garda Síochána.
Section 3 of the Bill purports to enable the Authority to summarily dismiss any member of the Garda Síochána where it forms the opinion that, by reason of the member’s conduct, his or her continued membership would undermine public confidence in An Garda Síochána and the dismissal is necessary to maintain that confidence.
The proposition that the Authority could dismiss the Commissioner or Deputy Commissioner was considered in the development of the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015 but, on the basis of legal advice provided by the Attorney General, the Act provides that the Authority can recommend to Government the dismissal of the Commissioner or Deputy Commissioner if the reasons for removal relate to policing services.
It is unclear how this provision, which appears to provide the Authority with a power to summarily dismiss senior members of An Garda Síochána will operate with the existing statutory framework at sections 11, 12, 13 and 13A of the 2005 Act and which provides the Authority with significant powers in relation to the removal of members of An Garda Síochána. This framework contains detailed procedures to guarantee fair process for the persons concerned.
Section 4 of the Bill would require the Authority to:
- supervise the functioning of the Garda Commissioner’s Office and supervise the discharge of functions by the Commissioner;
- establish policies and procedures for An Garda Síochána which shall be binding on all members of An Garda Síochána;
- cause to be published and made accessible to the public all sections of the Garda Code and Garda operational policies and procedures, save where such publication would undermine national security or crime prevention and detection as decided by the Authority in consultation with the Garda Commissioner; and
- review the adequacy and appropriateness of the policies and procedures which underpin the operation of An Garda Síochána;
Under current law, the Authority performs a wide range of functions which are very extensive in terms of overseeing the corporate governance structures and performance of An Garda Síochána in the policing area. In particular, the Garda Commissioner is required to cooperate with the Authority. Also, the Commissioner must report to the Authority regarding policing matters to facilitate the performance of the Authority’s functions and provide it with relevant material.
Rather than critiquing the individual elements of this section, I would draw attention to two key difficulties with it. First, the intention is that the Policing Authority would supervise the discharge by the Commissioner of his functions and could direct him in the management of his office and the performance of his functions. The Policing Authority is an independent oversight body. The Garda Síochána must report to the Authority in relation to policing matters but is fully accountable to the Minister and the Government. To insinuate the Authority into the management of the Garda Síochána in the various ways set out in this section, would transform the role of the Authority from overseer to supervisor and director. The question that would then arise is, who would the Authority be accountable to for the operation of the Commissioner’s office. Say the Authority directed the Commissioner to do something that went wrong, who would be answerable and to whom?
The second problem is that under section 26 of the Act, the Commissioner is responsible for directing and controlling the Garda Síochána. He is required, and I quote: ‘to carry on and manage and control generally the administration and business of the Garda Síochána’. Deputy O’Callaghan proposes no amendment to section 26 that would recognise that what he proposing in section 4 of his Bill would be in direct conflict with the provisions of section 26 unless it is amended.
Section 5 of the Bill appears to be intended to provide the Inspectorate with a right to enter any Garda Station without giving prior notice to the Garda Síochána. However, under section 117(6) the approval of the Minister would be required before any such ‘visit’ were to take place. I don’t know if this is what is intended by Deputy O’Callaghan but this is the only provision in the Act that would require the Inspectorate to get the approval of the Minister in order to carry out their functions. It is also unclear how the provision interacts with section 118 of the Act which requires that a written protocol be agreed between the Inspectorate and the Garda Síochána in relation to the provision of information required by the Inspectorate.
In conclusion, let me reiterate that the Government is fully supportive of the Authority having appropriate powers so that it can carry out its oversight functions in an effective and efficient manner.
However, I believe that it is reasonable to propose that any extension to the Authority’s powers must take account of the views of the Authority as to what additional powers it needs and the recommendations from the Commission on the Future of Policing. The Bill before the House pre-empts both of these.
I am sure that Deputies will agree that any further legislation extending the Authority’s powers or functions must not create internal conflict with the existing legislative framework establishing the Authority and must not extend the Authority’s remit into the area of national security – these are key difficulties with the Bill now under debate.
I have read in the media that Deputy O’Callaghan believes that if his Bill had been enacted, we would not have experienced the recent Garda controversies. I don’t accept this. At the root of the controversies we have seen are deep cultural issues that are not amenable to quick legal fixes – if they were, there would be no problem that a piece of legislation couldn’t solve. Policing is complex and the responses to problems with policing have to reflect that complexity.
Having said that, I welcome and share Deputy O’Callaghan’s genuine and sincere commitment to reform of the Garda Síochána. Where we disagree is on the timing of further legislative change. I am convinced that further ad hoc piecemeal legislative change at this point, even if the Bill before us didn’t have the deficiencies that I have mentioned, would be wrong. Instead, we should allow the Authority, having operated under the existing legislative framework, to tell us what it believes is needed and perhaps more importantly for the Commission on the Future of Policing to report. Then we will be in a position to consider comprehensive proposals that will address the governance and accountability framework in a holistic manner.
In the meantime, while I fully understand and acknowledge the spirit in which the Bill was introduced, I must, on behalf of the Government, oppose the Bill.