Pádraig Mac Lochlainn (Donegal North East, Sinn Fein) | Oireachtas source

I would add that gardaí themselves, through the Garda Representative Association and the Association of Garda Sergeants and Inspectors, AGSI, have stated repeatedly that they want politics removed from policing. It is not only the public who wants this following the episodes and the failure of the Department of Justice and Equality and Ministers to oversee An Garda Síochána adequately. Gardaí themselves want this.

It has not been a good period for the Attorney General. In terms of the advice given in this matter, one may interpret that the Government has an executive responsibility in terms of security matters but to stretch it to all policing matters is an interesting interpretation of the Constitution. An examination of the legal status of both individual gardaí and the Commissioner presents problems with fulfilling their functions within Article 28. Gardaí have wide and discretionary powers to interfere with constitutional rights and they cannot be directed when and how to use those powers. The function of the Commissioner is defined as directing and controlling An Garda Síochána and advising the Minister on policing and security matters. Ministers have repeatedly declined to accept responsibility for decisions of the Commissioner as policies and practices are for the Commissioner to decide. The Minister's role is to hold the Commissioner to account for performing these functions, not to have a hand in how they perform them. Given the legal status of the Commissioner, the Minister and individual gardaí, it is difficult to conclude that policing is an executive function.

I would like to see the Attorney General's advice in this matter. Whatever argument one can make about security matters, and we need a separate policing and security apparatus in this State given that we have a unique situation where they are combined, it is a remarkable interpretation of the Constitution to stretch it to all policing matters as an executive function of Government. Few academic legal experts, certainly, in the policing arena, would agree with that assessment. It is remarkable.

As Deputy Clare Daly stated, if the Minister was determined to separate politics and government from policing and this was her advice from the Attorney General, why did she not put this to a referendum? The Government has held referendums on much less important matters in recent years.

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