Brendan Howlin (Wexford, Labour) | Oireachtas source

Like others, I begin by thanking Mr. Justice Kevin O'Higgins for this report. It is clear, comprehensive and stark. In the words of the Tánaiste and Minister for Justice and Equality, Mr. Justice O'Higgins has produced a thoughtful and thorough report which deserves the most careful consideration. I also agree with the Tánaiste that we must not lose sight of one central fact. The report identifies a number of cases in which victims of crime were not well served by those we entrust to protect all of us and investigate crime in this country, namely, An Garda Síochána. As she put it, that is as unacceptable as it is disheartening. It is not, however, surprising. Some time ago, I was involved with events leading up to the Morris tribunal, in which Mr. Justice Frederick Morris concluded that there was corruption among a small number of gardaíoperating in the Donegal division. Mr. Justice Morris said that the situation could not have flourished and gone unchecked if the leadership of the Donegal division had not behaved negligently and slothfully. This was a long time ago. He warned that there was no reason to think that what he uncovered in Donegal was confined to that county.

Mr. Justice O'Higgins was not investigating serious corruption on anything like the scale of what happened in Donegal, but he uncovered serious shortcomings in the standards of professionalism that we and, above all, the victims of crime are entitled to expect from our national police force. Again, the same point arises. There does not seem to be any reason to think that Cavan-Monaghan is unique. It seems that the only difference is that there happened to be a brave whistleblower in Cavan-Monaghan. While the events investigated by Mr. Justice O'Higgins are more recent, some of them go back almost a decade.

It is almost a decade ago that I, as the then Labour Party spokesperson on justice, published our party's policing policy document, which we called Better Policing for Safer Communities: A Programme for Partnership and Accountability. In that document of June 2006, I wrote that when the Garda Síochána was founded in 1922, Ireland was a rural, close-knit society. The crime rate was low and anti-social behaviour was sparse. Policing was simpler back then and it remained relatively uncomplicated for most of the 20th century. However, with the rapid transformation from a rural farming society to an affluent urban society, it was inevitable that severe social and policing problems would arise, as they have done everywhere in the world. We now have more crime, more drug and alcohol abuse, more public order offences and more anti-social behaviour, making life a misery for many citizens. Additionally, we now face a situation in which human life has become incredibly cheap, as armed drug gangs wage war on each other and put not only the lives of members of those gangs but the lives of innocent citizens at risk. The quality of life of whole communities, including some of the most marginalised communities in the country, has suffered due to lawlessness, vandalism and anti-social behaviour. Criminal and anti-social behaviour inflicts misery, particularly on the inadequately policed urban parts of this city. I wrote back then that there was insufficient appreciation at political or senior Garda level of the corrosive effect of crime and lawlessness on these besieged communities. Sadly, I think this is still the case a decade later. The Labour Party argued a decade ago that Ireland's policing structures, having remained virtually unchanged since the foundation of the State - the rural landscape I described - are now far removed from what is internationally recognised as best practice. I have had these discussions with the Tánaiste; she knows my views and I think she shares many of them. It has taken a series of reports from the Garda Inspectorate almost a decade later to confirm that this diagnosis is still valid. We said back then, and I now repeat, that the need for a radical shake-up of existing controls and oversight mechanisms within An Garda Síochána is beyond question.

I also repeat another conclusion from a decade ago, which is that An Garda Síochána continues to be overly defensive about itself. This trait is not unique to An Garda Síochána. Faced with any external or internal criticism, many organisations close ranks, deny and resist. An Garda Síochána is too slow to admit to serious structural and procedural problems within the force and it is even slower to actively do anything about them. The real risk now is that the relationship between gardaí and local communities, which has been problematic for some time in particular areas, will continue to deteriorate. The more the Garda is hindered from participating in the community, the more isolated the entire police force will become. There will be less understanding of public sentiment, less exercising of discretion, more public irritation, less sympathy for the police and an increase in downright hostility and further isolation. We can see examples of this happening already when members of An Garda Síochána think, "If that is the way we are treated, that is the way we will react," as though it were not an integrated entity involving community and policing.

I believe it is vital to rebuild confidence in the relationship between police and community. We need, in short, to reconnect police and community. An important part of our response must be to redouble the commitment to real community policing, and by that I do not mean simply exclusively designating a small cohort of gardaí as community policing officers. Real community policing is not an add-on to the "proper" police force. It should be intrinsic to a genuine local community partnership approach among all gardaí and it should pervade the entirety of their work. We believe that neighbourhood policing should be at the core of police work and that the structure of the entire police service, the staffing arrangements and the deployment of resources should be organised accordingly. If one positions community policing as the core function of An Garda Síochána and the core function of every Garda station, this has implications for structure, management, culture and training. This point was touched upon by every speaker in this debate so far. It would radically change the organisation and the way it thinks about itself. It would define the interface between the individual citizen and the local community Garda as the prime focus of activity to which the rest of the organisation becomes a support mechanism. It is happening; such models do exist. I repeat our central point. If the community is not engaged with, if there is not real and substantial participation by the community and if the community does not have and feel an ownership stake in policing, we will suffer an ongoing and increasing disjunction between our policing service and a growing number of our citizens.

Just as importantly, back in 2006, we also called for community-oriented policing delivered by a service that was accountable to the community it served, and we said that accountability must extend to the very top of our policing structures. That is why the Labour Party's long-held commitment to real community policing has always been clearly and inextricably linked to our commitment to establishing an independent Garda authority.

That is something I tried to legislate for a decade ago, but it was not until the Labour Party returned to Government that we could do it.

The community policing approach requires a devolution of power within the Garda, the decentralisation of authority to gardaí on the beat and a far greater emphasis on collaboration between gardaí and community, as I have said repeatedly. It seemed clear enough to us ten years ago - it is even clearer now - that such a reorientation of the Garda Síochána cannot be delivered either by the Garda itself or by the Department of Justice and Equality.Transparent and accountable policing, in partnership with communities, is not achievable without civilian oversight. The Garda authorities overseeing themselves cannot provide this and neither can the Minister and her Department. That is why I and the Labour Party have been so committed to the establishment of an independent Garda authority, representative of civic society, to stand between the Commissioner and her officers, on the one hand, and the Minister and Department on the other. Unless power is devolved within police structures and through civilian involvement and engagement, as well as through oversight of policing, then the gardaí will remain both centralist and distant from the communities they need to serve.

While the details of the individual cases of wrongdoing dealt with in the O’Higgins report are of great concern, what must concern us most, as representatives of the public gathered here in Parliament and as legislators, is the need to have structures that are robust and right for the future, to make sure the Garda Síochána behaves professionally and accountably. That was very far from the case when the previous Government came into office. We were faced with a breakdown of public trust in the ability of the gardaí to properly police themselves and their own members. We inherited a system, which the Tánaiste will remember, involving a confidential recipient, which was shown to be manifestly unfit for purpose because people did not know where the the confidential recipient was or how he or she could be contacted. As the Tánaiste put it, the system for dealing with reports of wrongdoing within the force by members served no one particularly well - not the people making the reports, not the people who were the subject of those reports, not the Garda Síochána, and, above all, not the people of Ireland. We were faced with an absolutely poisonous relationship between the Department of Justice and Equality and the Garda Síochána, on the one hand, and the Garda Síochána Ombudsman Commission on the other. That was self-evident; we could see it. We were faced with persistent allegations of Garda malpractice and with claims that these allegations were not being investigated. We took swift and decisive action. We appointed a series of statutory inquiries. We appointed a new Garda Commissioner following the first open international competition in the history of the State. I and my colleagues delivered on an extensive programme of reform, including legislation to protect whistleblowers and to extend the freedom of information provisions.

The Protected Disclosures Act, which was the overarching legislation to protect whistleblowers, enhanced the protection available to whistleblowers across the board and provided a new mechanism for disclosures relating to the Garda Síochána. Now, a Garda member may make a protected disclosure directly to GSOC, which has all the powers needed to investigate any complaint. We committed to the reform of Garda oversight and accountability, including delivering on the Labour Party's long-standing policy of establishing the independent Garda authority. Overwhelmingly positive changes to our policing landscape were made in the last few years. I acknowledge the commitment and ability of my former colleague, the Minister, Deputy Frances Fitzgerald, in delivering this change agenda quickly, but I remain to be convinced that her Department and the force will do all that needs to be done to ensure that Garda resources are deployed effectively and efficiently. For example, modern policing requires personnel to be deployed in front-line policing services. The Garda Inspectorate has called for this in the two reports. It says that real civilianisation could release an additional 1,000 gardaí to front-line duties, which means that all obstacles to the employment of qualified civilian personnel must now be removed in order to free up those 1,000 gardaí. In the current circumstances, it should be an immediate task of the new policing authority to ensure there is a rigorous programme of civilianisation of all jobs that do not require Garda powers, training or Garda experts. We do not need trained police officers doing clerical and back-up work, stamping passports and all the rest of it. Exceptions should be made only where it is demonstrated that there is a compelling reason for a garda to carry out a function. The commitment to, and implementation of, a real programme of civilianisation will be a touchstone of officialdom’s commitments to the implementation of the reform agenda. We fully support the Garda Inspectorate's recommendations on reform of organisational structure, governance and culture and on workforce modernisation and technology, and we look forward to working with the Tánaiste in implementing these.

Sergeant McCabe has now been confirmed as a dedicated and committed garda who brought to public attention cases in which the public was not well served by the Garda Síochána. The concerns he highlighted were legitimate and the bulk of the conclusions of the O’Higgins report fully justify the belief that the people were not getting the police service they deserve and that oversight of policing was entirely inadequate. The report describes poor policing, incompetence and wrongdoing. It also describes institutional hostility to anyone who identified a problem. I am happy that the reforms we insisted on in government go a long way towards addressing those defects, but there remains more to be done. There is a whole series of recommendations for change made by the Inspectorate and under the Haddington Road agreement. It remains to be seen whether the force and the Department of Justice and Equality will deliver on those reforms.

I welcome a great deal of what the Garda Commissioner, Nóirín O'Sullivan, said in her statement earlier today. I welcome her clear acceptance of the core fact that the O’Higgins report presents inescapable lessons for the Garda Síochána based on its shortcomings in a number of critical areas, including its dealings with whistleblowers. I welcome her commitment to radical and pertinent, permanent change. I am less happy with the continued insistence that there are clear constraints around the question of making public comment about the Commissioner’s approach to Sergeant McCabe and his evidence at the O’Higgins commission. I query first, as I have done publicly, the fine distinction the Commissioner and her advisers are seeking to make between what she did and did not instruct her lawyers to do. The Commissioner seems to me - and I would suspect, to a great many laymen and women - to be trying to make a distinction without a difference. It is highly artificial to say that the case against Sergeant McCabe was that he had a grudge against a senior officer which coloured his motives and that his evidence against that officer should therefore not be accepted as credible but, notwithstanding this serious claim, that Sergeant McCabe’s character and integrity were not put at issue. Both of those cannot stand. I am not sure that many lawyers would understand that particular argument. Second, I remain convinced that the law does not prevent the Garda Commissioner from clarifying the instructions she gave to her legal team at the Commission. I note from the transcript extracts published in the Irish Examinerthat I have the same interpretation of the Act as the now Senator Michael McDowell SC, who I recall in a previous capacity was the man responsible for drafting the legislation and steering it through this House. Our interpretation is that, while the law prohibits the disclosure of evidence given by a witness, it is clearly the case that lawyers are not witnesses and their statements are not evidence before the commission, so the prohibition in section 11 of the Act does not apply. There is no provision in the Act that restricts a person from commenting on the statements of lawyers before a commission. In particular, there is no bar preventing a party from explaining the statements their lawyers made under the instructions of their clients. Someone has been briefing journalists to the effect that there is such a broad definition of "evidence" in the legislation that it would also cover exchanges between the lawyers and the judge.

It is perfectly plain from the body of the Act, for example, section 14, which spells out the form and manner in which evidence is to be given to a commission, that the evidence includes only statements made by a witness, either orally or on affidavit and either on oath or affirmation. The only reason for the extended definition of evidence in the Act is to allow for opinion evidence as well as factual evidence to be given by witnesses, which is a departure from the strict rules that would apply in a court, as distinguished colleagues who operate in the lovely courts buildings on the river will know full well, but it has nothing whatsoever to do with including as well the submissions made by lawyers, unless one agrees with Humpty Dumpty when he told Alice that "When I use a word, it means just what I choose it to mean".

It is clear from the report of the judge that he set out at the outset and throughout the hearings to stress that his hearings were inquisitorial and not adversarial. At paragraph 2.02 he states: "This non-adversarial method was generally followed by all legal teams, although there were a few isolated aberrations from this approach." What we are dealing with here seems to be one of these aberrations, where lawyers were instructed by their client to cross-examine a witness with the intention of undermining their credibility. The serious problem is that this adversarial approach seems to have been adopted when the public stance of the Commissioner to Sergeant McCabe was quite different. She told a Dáil committee that Sergeant McCabe had the full support of Garda management. It is even more serious if the lawyers' instructions had been changed mid-stream, but only when a tape recording turned up that undermined the story their clients were going to tell the commission.

The reason the exchanges between lawyers and the judge arose in the first place is that matters had reached a stage where the judge wanted clarity about the case the lawyers were seeking to make, and it seems clear that those lawyers were initially quite clear about their client's instructions. They said they were instructed to seek to undermine Sergeant McCabe's evidence by questioning his motives, his credibility and his integrity. The lawyers were instructed to do this in the context of introducing evidence of a conversation, except that when Sergeant McCabe produced his own recording of that very conversation, the plan was dropped and the lawyers now said the sergeant's integrity was not at issue. They said it never had been in issue.

What would have happened, and others have posited this question, if Sergeant McCabe had not recorded that conversation? How did the false admission of malice find itself in the instructions of the commission's lawyers? We need to be blunt about this. If this issue is not properly resolved, the suspicion will be that there was a plan prepared by Garda witnesses to put sworn testimony on the record that was materially false and misleading, that this plan was only dropped when it was discovered that the false evidence could not be stood up.

This is an extraordinarily serious matter. It deserves to be treated seriously and not brushed under the carpet of the claim of confidentiality or lawyer-client privilege. The Garda Commissioner’s decision to request the Minister to refer this issue to the Garda ombudsman is a recognition that the matter needs to be investigated and resolved to public satisfaction - I hope quickly - but if the authorities do not change their attitude to legal privilege, will the Garda Síochána Ombudsman Commission run into exactly the same set of difficulties? Will the two senior Garda officers not say that their dealings with the Garda Commissioner’s lawyers about their proposed evidence to the O’Higgins commission are covered by the same legal professional privilege that Commissioner O’Sullivan is relying upon today?

On the issue of privilege, I accept that the Commissioner is as entitled as anyone else to have lawyer-client privilege, but legal privilege is not absolute. It belongs to the client, not to the lawyer, and it can always be waived by the client. Importantly, we as public representatives must insist that there is a difference between a holder of public office and a private citizen. The private citizen is entitled always to have regard only to their own private interest but the public officeholder holds a position in public trust, and their only legitimate concern can only ever be to serve the public interest. So while public bodies have legitimate reasons for relying on legal privilege, they can never confuse their own personal or institutional interest with the larger public interest.

Generally speaking, I agree with the Garda Commissioner that in regard to communications with her legal team, it is important that privilege is protected so as not to impact adversely on the workings of the Garda Síochána and its entitlement to seek and obtain legal advice on a confidential basis, but I do not believe that privilege can or should be used as a shield to prevent an investigation into an alleged scheme by public servants to plant false or misleading evidence on the record of a public sworn inquiry. I make no bones about asserting plainly and unequivocally that the holder of a public office should not be entitled to shelter behind legal privilege if that is contrary to clear public interest. In this case, where a vitally important public office is concerned, the public interest demands a public explanation.

I should make one other point because it struck me, in the context of this, that people might not be aware of it. When we were crafting the whistleblowers legislation, the Protected Disclosures Act, we looked at the British model. In the British model, motivation was one of the issues that could be taken into account in discounting a whistleblower's claim. We deliberately did not transpose that into Irish law because often, whatever the motivation, the allegations can actually be true, and that was so in one of the cases in Donegal in terms of one of the witnesses, whose motivations one might be suspect about but who was motivated to bring the truth to light.

I want to take this opportunity to make it clear that neither I nor any of my Labour Party colleagues ever had any reason to question the former Minister, Alan Shatter’s ability or integrity in Government. We were satisfied when he, properly and fairly, apologised and withdrew the claim he had previously made in the Dáil that the whistleblowers had not co-operated with Garda investigations. It is true that I and Labour Party colleagues, along with at least some of our Fine Gael colleagues in government, were unhappy to see revealed what Mr. Justice O’Higgins refers to in his report as institutional "instinctive hostility towards whistleblowers". Members will recall this culminated in the whistleblowers being referred to by the Garda Commissioner at a Dáil committee as "disgusting" – a description that took some time to be retracted.

We were not party to the events that led to the resignations of either the former Commissioner, Martin Callinan, or the former Minister, Alan Shatter. The reality is that the O’Higgins report is not a report into Alan Shatter or his dismissal by the Taoiseach, Deputy Enda Kenny. Mr. Justice O’Higgins was given terms of reference that asked him to investigate 12 distinct matters, just one of which referred to Alan Shatter.

A further reality is that Sergeant McCabe had been banging his head against a brick wall until his claims were made public and until the O’Higgins commission was tasked with examining them thoroughly. I fully accept, and I never thought or claimed otherwise, that there was no impropriety or malpractice on the part of either the former Minister for Justice and Equality or the former Garda Commissioner. It nonetheless remains the case that the McCabe allegations were not properly investigated on their watch.

Sergeant McCabe has now been confirmed as a dedicated and committed member of An Garda Síochána, with very many legitimate concerns. The conclusions of the O’Higgins report show we were not getting the policing service the people deserve, and that oversight of our policing was inadequate. Garda Commissioner O’Sullivan accepts that dissent is not disloyalty, that the service must learn from this experience and, importantly, that whistleblowers are part of the solution to the problems facing the service. The reforms we insisted on in government will endure for the public benefit.

The Garda Síochána is entitled to the support of the Government and of all public representatives, but citizens too are entitled to expect that we make sure that gardaí behave both professionally and accountably. In a democracy like ours, people expect and are entitled to live in peace in a law-abiding community. Effective and efficient policing is a basic prerequisite for that. To sustain effective and acceptable policing, the links between communities and gardaí are of fundamental importance. The job of the Minister, the Commissioner and the Policing Authority now is to establish a new partnership, and to get police and communities back working together with a common sense of purpose.

I wish to share time with Deputies Coppinger and Boyd Barrett. Deputy Coppinger and I will take 15 minutes and Deputy Boyd Barrett will take the remaining 15 minutes.

Garda Commissioner Nóirín O'Sullivan stated today: "I can confirm that An Garda Síochána's legal team was not at any stage instructed to impugn the integrity of Sergeant Maurice McCabe." TheIrish Examinerhas revealed the following exchange between Mr. Colm Smyth of Commissioner O'Sullivan's legal team and Mr. Justice O'Higgins at a private meeting last year. Mr. Smyth stated: "myinstructions are to challenge the integrity certainly of Sergeant McCabe and his motivation." There was a bit of back and forth between them at that stage. The transcript continues:

Mr. Justice O'Higgins: ... he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the Commissioner, so be it.

Mr. Smyth: So be it. That is the position, Judge.

Mr. Justice O'Higgins: Those are your-----

Mr. Smyth: Yes, as the evidence willdemonstrate, Judge.

It continues:

Mr. Justice O'Higgins:Those are your instructions from the Commissioner.

Mr. Smyth: Those are my instructions, Judge.

Mr. Justice O'Higgins:Very good.

Mr. Smyth:I mean this isn't something thatI am pulling out of the sky, Judge, and I mean I can only act on instructions.

In other words, not once or twice but on five separate occasions the leader of the legal team made it clear that his instruction was to challenge the integrity of Sergeant McCabe. It is clear, at least from the words of Mr. Colm Smyth, that his instructions were to go very hard on Sergeant McCabe. This resulted in a position where, according to many reports, Sergeant McCabe was virtually put on trial during the hearings. Serious allegations against Sergeant McCabe's integrity by a superintendent and a sergeant were subsequently disproved by Sergeant McCabe.

Mr. Colm Smyth then corrected the record to indicate his instruction had been to challenge the credibility and motivation of Sergeant McCabe but not his integrity.

In her statement today, the Commissioner argued that she had the right to interrogate and cross-examine the evidence of Sergeant McCabe, as might be done with any other witness or person coming before such hearings. However, whatever conclusions can be drawn from these events - whether they are benign or maligned - it is quite clear the treatment of Sergeant McCabe by the Commissioner's team was not on a par with the treatment of others at the hearing. Another question arises from today's statement. It is now a full year since a Garda superintendent and sergeant allegedly presented false evidence against their colleague, a whistleblower. This is a matter of grave concern, so why has the case only now been referred by the Commissioner to the Minister for Justice and Equality and the Garda Síochána Ombudsman Commission, GSOC, a full 12 months on? Is she acting entirely freely? She is certainly under pressure from events.

Recent events in Dublin's north inner city clearly demonstrate the need for an effective police service in the State but an effective police service must be fully democratic and accountable. Clearly, there are problems relating to democracy and accountability within An Garda Síochána. This is not, first and foremost, to do with the approach of this or that individual. In the last analysis, it is to do with the fact that An Garda Síochána, as an arm of the State, is ultimately an organisation serving to protect the interests of a capitalist elite at the expense of the majority of the people. It is not in the nature of such an organisation to be run in a way that can be described as fully democratic and accountable.

This undemocratic and unaccountable role has been seen clearly in multiple instances recently. In the 12 months between November 2014 and November 2015, An Garda Síochána made 188 arrests at community-based protests against water metering. Per head of population, that would be equivalent to more than 2,500 arrests in the UK. If more than 2,500 persons were to be arrested in the UK for participation in a popular community-based campaign, I suspect there might be some Deputies in this House who are silent on what was done here by An Garda Síochána but who may speak in terms of human rights abuses across the water. In addition, what happened during the anti-water metering protests was not an exceptional circumstance. In 2006, some 200 gardaí descended on the community of Rossport in County Mayo, with strong-arm tactics employed to force the Shell refinery on local people. Despite 111 complaints of alleged Garda violence and intimidation submitted to GSOC, not a single garda was disciplined as a result of those complaints. In November 2010, only a few hundred metres from here, a cohort in a 40,000-strong protest by students was attacked by gardaí on horses and by police dogs, as the students protested an increase in university fees. A police force funded by the community and, in theory, charged with defending that community should not act in such a way. These events all point to the need for democratic community control over policing services.

If the Garda Commissioner is found to have been complicit in an attempt to frame Sergeant McCabe, she should go, of course. It should not be a case of resigning and she should in that instance be sacked. I listened with interest in the House last week to a passionate speech from a Deputy who has done much to highlight abuses within An Garda Síochána, Deputy Mick Wallace. Deputy Wallace argued that we will not change how we do policing in Ireland until we change the hierarchy. However, booting out one hierarchy within a police service designed to serve the interests of the 1% and replacing it with another hierarchy within the same force will not address the fundamental issue. That will only be addressed when policing hierarchies are ended altogether and policing comes under democratic community control.

In every district community policy committees should be established, filled by democratic vote of the people in that district. Such committees should have the power to decide where and how Garda resources are deployed within a district. If we leave aside the issue of water protests, if such democratic community policing structures had been in place in Cavan and Monaghan, I doubt very much there would have been a need for an O'Higgins report in the first place. Such committees should also have the power to investigate and discipline members of the force who abuse their power. On a national level, An Garda Síochána must also be brought under democratic control. For example, there is no reason a national meeting of delegates from local community policing groups could not elect a national board to oversee the work of the police. In such a way, the basis could be laid for a policing service that serves the 99% and not the 1%, and which is thoroughly democratic and accountable to the people.

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