Mick Wallace (Wexford, Independent) | Oireachtas source

I move amendment No. 8:

In page 8, to delete lines 6 to 22 and substitute the following:“ “9. (1) Subject to this section, the appointment of a person to be the Commissioner of the Garda Síochána shall be made by the Authority following consultation with the Government.

(2) The Authority shall not appoint a person under subsection (1) unless it has invited the Service to undertake a selection competition for that purpose and the Service has undertaken such a competition.

(3) The Authority shall agree with the Service the selection criteria and process that are to apply to the selection competition under this section.

(4) A person shall not be appointed by the Authority under subsection (1) unless it is satisfied that the person is suitable for appointment as the Garda Commissioner by reason of his or her possessing such relevant experience, qualifications, training or expertise as is appropriate having regard, in particular, to the functions assigned to the Garda Commissioner by or under this Act.”.

It is a little mad that we are discussing approximately 70 amendments together. Anyway, we do not make the rules.

It is clear what this amendment is about. We are seeking to have taken out of the Bill the following text in section 8: "the appointment of a person to be the Commissioner of the Garda Síochána shall, upon the nomination of the Authority, be made by the Government." We reckon the decision should be made by the authority. We also want to remove the proposed section 9(2) that would amend the principal Act. This subsection begins: "The Authority shall not nominate a person under subsection (1) unless it has, with the prior approval in writing of the Government..." The proposed section 9(3) begins: "The Authority shall, with the approval of the Minister..." I could not make this up. The idea that the authority has any real power is simply not true.

All of this is under part 2, entitled Personnel and Organisation of Garda Síochána Appointments. Section 9 of the 2005 Act provides that the appointment of the Garda Commissioner shall be made by Government. Let us consider the current situation before we move on. Section 10 of the 2005 Act provides that the Government may appoint as many deputy and assistant commissioners as it chooses. Section 11 provides that the Government may remove any of these office-holders for stated reasons, including because "the person has failed to perform the functions of the office with due diligence and effectiveness or, in the case of the Garda Commissioner, has failed to have regard to any of the matters specified in section 26 (2)."

Section 13 sets out that the Government may also appoint as many superintendents or chief superintendents as it wishes. It also sets out that the Garda Commissioner can appoint however many persons to the rank of Garda sergeant and inspector as the Commissioner sees fit. The Act goes on to say that, with the consent of the Government, the Commissioner may dismiss them if, because of their conduct, their continued membership might undermine public confidence in the Garda Síochána and dismissal is necessary to maintain that confidence.

Under the 2005 Act, the Government alone makes the appointments of the Garda Commissioner and deputy and assistant commissioners and the Government alone may remove them. The policing Bill we introduced provided that the board would make the appointments and could remove the Garda Commissioner and deputy and assistant commissioners following consultation with the Minister. Moreover, we provided that the board would appoint superintendents and chief superintendents in consultation with the Minister. We left the Commissioner with the power to make appointments below the rank of inspector and the power to dismiss them for the same reasons, but with the consent of the board instead of the consent of the Government. Our Bill also set out that the board, in consultation with the Minister, would decide the number of appointments to the rank of chief superintendent and superintendent.

The new Bill under consideration sets out in section 8 that the Garda Commissioner and any deputy Garda commissioners are to be appointed by the Government. The section states that the Government shall accept the nomination of the authority. However, the authority can only nominate in accordance with the recommendation of the Public Appointments Service, which will provide the authority with one name only. There is not much merit in that. Before even asking the PAS to undertake a selection competition, the authority must seek prior written approval from Government to do so. The authority must also get the approval of the Minister before agreeing the selection criteria and the process with the Public Appointments Service for the competition. Furthermore, the Government may veto the authority's nomination in exceptional circumstances where it has stated the reasons. The Government can request a new nomination from the authority, which shall make that nomination unless the authority disagrees with the Government's reasons and wishes to make representations to the Government.

It is not clear what will happen. Could the authority refuse? We do not know.

Section 8 also sets out that if the Garda Commissioner or any deputy resigns, he or she addresses his or her letter of notification to the Minister and the Government notifies the authority later that the Commissioner or deputy has resigned. This is not remotely similar to the Bill or policing authority we envisaged. Under the Government's new Bill, removal from office may be by Government decision alone, with only a duty to consult the authority if the reason relates to policing services for the same reason as set out in the 2005 Act. The authority can only recommend to the Government that the Commissioner or deputy commissioner be removed if the reason relates to policing services, and in any event the Government is only obliged to consider that recommendation and has no obligation to act upon it.

The Government's Bill also provides that the Government, for policing and State security reasons, and the authority, in terms of policing services, have the power to remove assistant commissioners, chief superintendents and superintendents. It is also proposed that the Minister for Justice and Equality and the Minister for Public Expenditure and Reform would determine the number of appointments to assistant Garda commissioner, chief superintendent and superintendent level, but that the authority may make these appointments, subject to a selection competition and any regulations made.

However, that means that the system under the 2006 and 2014 regulations remains in place. It is not a case of selection by the Public Appointments Service but rather that the promotions advisory council and promotions advisory board, controlled by the Commissioner and Minister, will decide on the candidates the authority will be asked to rubber-stamp. The heads of the Bill in November were different and proposed a cleaner division. The Commissioner or deputy commissioner may be removed by the Government on recommendation of the authority for policing reasons, and the Government could dismiss him or her for State security reasons.

The authority alone had the power in the heads of the Bill to remove assistant Garda commissioners, chief superintendents and superintendents from their positions, but in the Bill as drafted the Government and the authority have the power. Thus, the authority is weaker again in this regard than in the original heads of the Bill. There was no mention in the heads of the Bill of the Public Appointments Service in the appointment of Commissioners, deputy commissioners and assistant commissioners.

It is difficult to see how An Garda Síochána can be expected to function as a cohesive and disciplined body when, depending on one's rank, one can be removed by, and is thus answerable to, one or two of three different bodies, namely, the Government, the authority and the Government or the Commissioner. Further confusion arises when one body appoints and another has the power to remove. For example, in the case of assistant commissioners, chief superintendents and superintendents, where the authority makes appointments, at least nominally, the Minister decides how many appointments are to be made and the authority and the Commissioner can remove them. It is sowing the seeds for confusion.

The Bill states the authority shall have full power of appointment of the Garda Commissioner, subject only to consultation with the Government. It is unfair and irrational to ask the authority to be responsible for systemic issues and policies and for performance issues when it cannot appoint or remove those responsible for implementing those policies and priorities. Given that the assistant commissioner, chief superintendent and superintendent all work within a hierarchal structure under the Commissioner and deputy commissioners who are appointed by the Government, giving the authority the power to appoint and remove them is meaningless.

Furthermore, this power of the authority is largely circumscribed by existing regulations regarding promotion, which will continue. Through these regulations, the Minister and Commissioner will continue to make these decisions through their proxies on the promotion board. It is also unfair and irrational to expect the authority to be responsible for resources, budgets and staffing if it has no part to play in deciding the number of appointments to be made to senior management ranks, such as assistant chief superintendent and superintendents.

Dr. Vicky Conway said that the authority should have responsibility for the appointment of the Commissioner, with the approval of the Minister, and that serious consideration should be given to allowing the authority to appoint other senior ranks such as deputy commissioner and assistant commissioner. She also recommended that the authority should have the power to request the Commissioner to retire. The Irish Human Rights Council and the Irish Council for Civil Liberties, ICCL, recommended that an authority be responsible for the appointment of senior managers, including the Commissioner, but the Government has failed to take their recommendations on board. Once again, I ask it to reconsider the decision.

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