Dara Murphy (Cork North Central, Fine Gael)
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The effect of these amendments would be to remove from the Government and the Minster for Justice and Equality any role in the appointment and removal of senior members of the Garda Síochána. Legislation must be fully compatible with the Constitution. No member would wish that there would be a serious constitutional question over legislation. Article 28.2 of the Constitution specifically provides for the Executive power of the State to be exercised by or on the authority of the Government. In the course of the drafting of this Bill, the Attorney General has advised that, as a matter of custom, practice and proper constitutional interpretation, the function of the Garda Síochána in the exercise of the policing power of the State has been interpreted by the courts as a function that is exercised as part of the Executive power of the State. While an Executive power of the Government under Article 28.2 can be delegated, the advice is that it would not be constitutionally permissible for such a delegation to amount to an abdication of the Government’s Executive power. Within this framework, the Attorney General has advised that any legislative proposal in the establishment of a policing authority should ultimately preserve the power of the Government to appoint or to dismiss the Garda Commissioner. To address the relevant constitutional concerns, the advice of the Attorney General is reflected in the Bill’s provisions. Due to the importance of their functions, a similar approach has been adopted for Deputy Garda Commissioners.

When considering the amendments, it is also necessary to take account of the fact that the Garda Síochána is the security service for the State. Under the Bill, the Garda Commissioner will continue to be accountable to the Government in respect of national security. This is an approach that has a wide measure of support in the Oireachtas. It goes without saying that national security is a key function of the Government. In the Minister’s view, leaving aside the clear constitutional dimension involved, the appointment of the head of the national security service should not be undertaken by a body other than the Government. To put the matter at its simplest, in view of the functions involved, the final appointing decision must rest with the Government. For similar reasons, the Government must continue to have the capacity to remove senior Garda members on security grounds.

While there are other issues that I might raise about the Deputies' amendments, I will concentrate on the functions that are being conferred on the policing authority by the Bill in respect of the appointment and removal of Garda personnel.

Under the Bill, the authority will have a leading role in a large body of Garda appointments. This will operate, in particular, at the highest levels of the Garda organisation and it will also have general functions in the areas of Garda appointments and promotions. With regard to the Garda Commissioner, or a Deputy Commissioner, all future appointments to these posts will be made solely on the basis of a nomination made by the authority, following an open selection process undertaken by the Public Appointments Service. In exceptional circumstances where the Government is unable for significant reasons to accept a nomination made by the authority, it will have to state its reasons. When such a situation occurs, the Government will be obliged to ask the authority to nominate another person for the position. From an international perspective, it is the general practice that governments either make or must approve top-level police appointments. For example, while the Police Service of Northern Ireland chief constable is appointed by the Northern Ireland Policing Board, the appointment must be approved by the Northern Ireland Minister of Justice. Similar arrangements are also in place in Scotland, which has a recently established police authority.

In the case of Garda personnel between the ranks from superintendent to assistant commissioner, the Bill provides that all the appointments will be made directly by the authority. Additionally, the authority will appoint persons to positions in the Garda civilian staff which are equivalent to or above the rank of chief superintendent. With regard to dismissals, and in line with the constitutional and security principles I have already outlined, the Garda Commissioner or a Deputy Commissioner will be removed by the Government. At the same time, the authority will have the power to recommend to the Government that a Garda Commissioner or Deputy Commissioner be removed for policing reasons. While the Government will not be obliged to adopt such a recommendation, it is difficult to envisage circumstances in which it would not do so.

Dismissals of persons between the ranks of superintendent to assistant commissioner for policing reasons will be undertaken by the authority. It will also be able to suspend a person from duty in advance of a removal decision. While the Deputies’ amendments go beyond the appointment and dismissal of Garda personnel, it is important to make clear that the overall approach adopted by the Government to the Bill is that relevant functions should be transferred from the Government and the Minister to the authority where this is permissible and appropriate.

However, the transfer process has its limitations and it has to be undertaken against the general constitutional and policy backgrounds which I have highlighted. Within these frameworks, for example, the Minister cannot, for substantial legal and policy reasons, accept a situation, as proposed in these amendments, where the Minister of the day would not be involved in determining the numbers of persons to be appointed to senior Garda ranks.

Overall, the Minister appreciates the approach of the Deputies in their amendments is to remove what they perceive to be a system in which key elements could be the subject of political considerations. However, she believes the significant reforms and measures provided for in the Bill are fully adequate to address any concerns they might reasonably have and, in particular, substantial powers are being conferred on the new authority which will be independent in the exercise of its functions.

The Bill’s proposals for the establishment of the independent policing authority will play a vital role in ensuring public confidence will be maintained in the Garda Síochána and in the essential services it provides.

Moreover, as I have indicated, they have been developed to address very important constitutional and policy requirements that arise within both the policing and security areas. Unfortunately, for reasons I have given, the amendments do not meet these requirements. We are not in a position to accept them so, accordingly, on behalf of the Minister, I would ask the Deputies not to press the amendments.