Dáil debates

Thursday, 12 November 2015

Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015: Report Stage (Resumed)

 

2:10 pm

Photo of Ann PhelanAnn Phelan (Carlow-Kilkenny, Labour) | Oireachtas source

Without wishing to repeat all the points raised in the detailed Committee Stage debate on these amendments, it is important to point out that the effect of the amendments would, in particular, be to remove from the Government and the Minister for Justice and Equality any role in the appointment or dismissal of members of the Garda Síochána. In the course of drafting 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. I want to emphasise that the exercise of the policing function is an aspect of the Executive power of the State. Many of the opposition amendments proposed for this Bill would remove from the Government the ability to comply with the constitutional duties in relation to the exercise of that power. That in itself would be unconstitutional.

Within this framework, the Attorney General has advised that any legislative proposal in relation to the establishment of a policing authority should preserve, ultimately, the power of the Government to appoint or to dismiss the Commissioner. As Deputies will appreciate, in order to address the relevant constitutional concerns, the advice of the Attorney General is reflected in the provisions of the Bill. In view of of 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. Deputies will be aware that, under the Bill, the Garda Commissioner will continue to be accountable to the Government in respect of national security. This approach has a wide measure of support within the Oireachtas. It goes without saying that national security is a key function of the Government. In the Minister’s view, leaving aside the very clear constitutional dimension, the appointment of the head of the national security service 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 I might raise in relation to the Deputies’ amendments, at this point I believe I should 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. First, I would point out that, under the Bill, the authority will have a leading role in relation to a large body of Garda appointments. This will operate, in particular, at the very highest levels of the Garda organisation. 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.

From an international perspective, it is very much the general practice that governments either make or must approve top-level police appointments. For example, while the 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 in 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 within 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 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. Dismissals of persons in 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, of course, to be undertaken against the general constitutional and policy backgrounds that I have highlighted. Within these frameworks, for example, the Minister cannot, for substantial legal and policy reasons, accept a situation, as proposed in the amendments, where the Minister of the day would not be involved in determining the numbers of persons to be appointed to senior Garda ranks. Accordingly, on behalf of the Minister, I ask the Deputies not to press the amendments.

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