Mick Wallace (Wexford, Independent) | Oireachtas source

I support the aim of this Bill brought forward by Deputy Ross, which is to de-politicise An Garda Síochána by providing for the independent appointment of the Garda Commissioner, Deputy Commissioner and other senior members of the Garda.

The Garda Act 2005 gives the Government very wide latitude and discretion as regards the appointment and removal of senior gardaí. It allows for Government to make appointments of superintendent and above and does not specify any qualifications or criteria that must be considered. Under section 11 of the Act, the Commissioner, Deputy Commissioner and assistant commissioners can be removed for a range of flimsy reasons. The Garda Commissioner alone can be removed for failing to have regard to section 26, which sets out the functions of the Garda Commissioner. These additional grounds for removal mean that the Commissioner's position is the most vulnerable of all to Government whim, as the last Commissioner found out to his peril.

In the past few months alone, we have seen several scandals which highlight the dangers of politicisation of An Garda Síochána. We had called for the removal of the former Garda Commissioner on several occasions for different reasons but his eventual removal was to provide a public scapegoat for political problems. This was an unfair attempt to try to salvage the Government's reputation. A politicised Garda Síochána and the bias of the Government towards it resulted in the vitriolic and unfair treatment of the Garda ombudsman in the GSOC bugging scandal, a bias which continues with the unfair and untrue allegations that it has breached a statutory duty.

Although the Government has confirmed that the next Garda Commissioner will be selected by open competition, it has not made any commitment to changing the legislation permanently in this regard. This is another short-term reaction to the recent series of Garda scandals rather than any meaningful and permanent reform of the manner in which the Garda Commissioner is appointed.

Recent events have demonstrated the acute need for immediate reform to address the unhealthy nexus that exists between the Commissioner, the Minister and the Government. The findings of the Guerin report, including the Minister's acceptance at face value of the Garda Commissioner's investigation into a complaint against himself, reinforces the irrationality of the current structure. It is this direct and centralised Government control of a single, hierarchical national organisation which has been identified by Professor Dermot Walsh as "rendering the police vulnerable to being used by dominant interests as a vehicle for protecting their privilege, through the suppression of minority views and lifestyles". There must be a dilution of the current partisan political control over the Garda to ensure that too much police power is not left over-concentrated and under-accounted for in the hands of any party.

Some other examples of over-politicisation in the Garda Act 2005 include section 40(2) referred to by Professor Dermot Walsh as an "alarming provision" which provides that the Minister or the Government can demand any record or documents from An Garda Síochána. The ministerial power under section 25 to issue directives to the Garda Commissioner "concerning any matter relating to An Garda Síochána" should also be removed. The direct accountability of the Commissioner to the Minister is very unhealthy.

A rebalancing is particularly necessary in light of the extensive functions and powers of the Garda Síochána in providing both civil policing and security to the State. A Minister for Justice and Equality's reputation is too closely linked to that of the Garda Commissioner's under the current legislative structure. Section 26(3) of the Garda Act 2005 provides that the Garda Commissioner is solely accountable to the Minister in the performance of his functions. Criticising a Garda Commissioner's performance in a public forum would thus be akin to the Minister criticising himself and his own performance. Any holding to account is impossible in these circumstances.

Using the medium of Parliament to provide democratic accountability allows the Minister and the Garda Commissioner to escape any parliamentary requests to explain policy with the excuse that something is an operational matter for the Garda Commissioner, which we have heard many times. As the Garda Commissioner's conduct and performance is also exempt from GSOC's remit and due again to the exclusivity of accountability provided for under section 26(3), there is no further avenue or no other method of holding the Garda Commissioner, and by extension the Garda Síochána, to account once this operational matter excuse is provided to a parliamentary question.

This difficulty was clearly demonstrated by our efforts to raise by way of parliamentary question the issue of Garda racial profiling of Travellers on PULSE. The then Minister was content to tell us that the Garda Commissioner said that racial profiling did not exist, so that was good enough for him.

The over-politicised nature of our police force is also powerfully illustrated by many aspects of the Cooke report.

The 64 page report was published by Government at 8.45 p.m. on Tuesday last. Fifteen minutes later, the headlines on the RTE news at 9 o'clock could only repeat the selective quotes that had already been leaked by Government sources to certain journalists who are widely recognised to be uncritical of the Garda. The tactic was previously employed by the Government press office on the publication of the Garda Inspectorate report into penalty points. Despite a handful of exceptions, the Government line has generally been accepted by the media establishment, without question or serious analysis.

The Government has praised the report both in the Dáil and on "Prime Time" for being "comprehensive" and for reaching "evidence-based" conclusions following "rigorous" investigation. I wonder whether it has considered any of the following points. The former judge concluded that there was no evidence of Garda involvement. However, he did not seek any evidence, he did not question a single garda, nor did he request a report from the Garda Commissioner regarding, for example, the storage and log books of IMSI catchers, or the possibility of the involvement of rogue gardaí. He did not seek to question the senior gardaí who were the subject of two highly sensitive GSOC investigations, investigations which the retired judge admitted led to the heightened tension and paranoia between GSOC and the Garda Síochána at the time. The retired judge admitted that the most significant "anomaly" identified by Verrimus "remains unexplained". That was the ring-back to a telephone which bypassed the main switch at 1.30 a.m. and which occurred immediately after a TALAN test. The absence of any explanation for that mysterious occurrence is inconsistent with the report's conclusions.

The possibility of lawful surveillance was never investigated at all. Although the terms of reference cleverly require an examination only of unlawful surveillance, the elimination of the possibility of lawful surveillance would appear to be a basic requirement if the priority was to establish the truth. The former justice Minister refused to answer that question both at committee and in my parliamentary question to him in this Chamber in February. A senior garda can bypass judicial supervision completely and internally authorise another garda to conduct covert surveillance. That is entirely lawful if it is done in accordance with the exceptional circumstances set out in section 7 of the Criminal Justice (Surveillance) Act 2009. If lawful surveillance by the Garda, the Army or Revenue was at issue, the retired judge could then have examined whether it was in fact lawful, that is, whether those exceptional circumstances did in fact exist. Rogue gardaí could have received permission from other senior gardaí and bugged GSOC without breaking the law, but the matter has not been examined by Mr. Justice Cooke.

The report asserts a breach of statutory obligation by GSOC in its failure to report the results and progress but fails to mention that section 103 allows for exemptions if, in GSOC's opinion, that were necessary in the public interest. That has been repeated ad nauseamby Government speakers. Such a selective and incomplete reading of the relevant legislation is a strange omission for a former judge of Mr. Justice Cooke's experience and stature.

The report does not assess any evidence of an attempted security breach at GSOC, as requested by paragraph 3 of the terms of reference, preferring to focus on whether "actual surveillance" took place. The judge appeared to accept that ordinary surveillance of the Verrimus personnel took place, but does not view that as corroborating evidence nor does he consider it alongside the three technical "anomalies". That type of surveillance is unregulated in Ireland and that may be the reason the retired judge did not consider it. He did not appear overly concerned that Verrimus was the subject of ordinary surveillance while conducting the GSOC operation, nor was he curious about the identity of those who carried out the surveillance, although he stated that could only be examined by a statutory investigation.

In fairness, the retired judge went to some lengths to set out in his introduction that the report has "no authority to make binding findings of fact, much less definitive ones", that it does not have "authority to adjudicate on disputes of fact", and that it has been reliant on the "voluntary co-operation" of the parties concerned. The report also states that its conclusions are "based upon my personal evaluation and opinion". He stated they were not judicial, nor the result of a statutory inquiry by a sitting judge with powers of compellability. That is in contrast to the disingenuous efforts of Government to impart a sheen of legitimacy by emphasising at every opportunity that this paper review was conducted by a retired judge. It was by and large a paper review of secondary evidence already available rather than an investigation from first principles. Had the impossible happened and incontrovertible proof been provided and established on the unlawful Garda bugging of GSOC, that would have resulted in huge upheaval within some of the more sacred institutions of the State, and yet another possibly fatal blow for the party of law and order in the run-up to the next general election.

If there was an appetite for the truth, we would get an independent inquiry and nothing less. If we want to have a police force that we can be proud of, one that operates in a transparent manner, and is accountable for everything it does, we will also need to begin the process of depoliticising An Garda Síochána.

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