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Minister rejects 'pre-emptive' bill amendments

Justice Minister Charlie Flanagan has opposed, on grounds of poor timing, plans to give the Policing Authority additional powers to sack gardaí and to award it greater control over the Garda Commissioner.

The Minister said that deep cultural issues are at the heart of recent policing controversies and that these are not amenable to quick legal fixes. He said that policing is complex and that political responses have to reflect that complexity.

The Minister told the Dáil on 8 November that the private members' bill proposed by Fianna Fail justice spokesman Jim O'Callaghan, doesn’t take account of the process already 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.

Giving his grounds for opposing the bill, he said there was already a comprehensive examination underway of all aspects of policing including the range of bodies with oversight and accountability. The Commission is due to report late next year.

The oversight bodies include the Policing Authority, the Garda Síochána Inspectorate, the Garda Síochána Ombudsman Commission, the Department of Justice and the government.

The Minister said that while he appreciated that Deputy O'Callaghan's bill was initiated in a positive spirit, it had the potential to cause uncertainty for the Commission. 

Section 62O of the Garda Síochána Act 2005 requires the Policing Authority to prepare a report on the effectiveness of the Authority and can contain recommendations for improving its effectiveness. This report must be submitted to the Justice Minister by the end of this year and laid before the Houses of the Oireachtas.

'Premature'

The Minister said “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,” he said.

The Minister also said that the private members' bill  makes no distinction between policing and security matters, which he said was its most serious difficulty. 

“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 to 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,” the Minister said.

He pointed out that the bill makes no concession to the fact that other provisions in Garda Act 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 responsible for directing the Commissioner in relation to them. I fail to see how this can be right,” he said.

“Section Three 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,” the Minister said.

He pointed to two key difficulties with this section of the bill: “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.”

The Minister concluded by thanking Jim O'Callaghan TD for his genuine and sincere commitment to reform the Garda Siochana.