Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I will share time with Deputies O'Loughlin, Thomas Byrne and Eugene Murphy.

Later tonight we will discuss the most recent report of Mr. Justice Fennelly. It is important to remember, however, that in August 2015 Mr. Justice Fennelly produced an interim report in respect of two paragraphs of his terms of reference. One of those paragraphs concerned the removal or resignation of the former Garda Commissioner, which took place on 25 March 2014. It is interesting to refer to chapter 19 of his interim report because it deals with the legal position of a Garda Commissioner. Mr. Justice Fennelly refers to the fact that only twice in the history of the State has a Garda Commissioner been removed from office. The first occasion was in February 1933 when Mr. de Valera's Government removed General O'Duffy from his position of Garda Commissioner. General O'Duffy then went on to do different things and became the first leader of the Tánaiste's party, but we will not discuss that at this stage. In 1978, the Garda Commissioner, Edmund Garvey, was removed by a Fianna Fáil Government. He sued, went to court and succeeded in his case.

It is important to note that, having referred to both examples, Mr. Justice Fennelly states that only the Government has the power to remove a Garda Commissioner from office, and where the Government proposes to exercise that power, it is obliged to give the Garda Commissioner the notice required by section 12 of the 2005 Act, containing a statement of the reasons for the proposal. The Government must also allow the Garda Commissioner an opportunity to make representations as to why he or she ought not to be removed from office. Thus, it is only the Government which may initiate that procedure. That is the procedure that is recognised in law and by Mr. Justice Fennelly in his interim report.

It is instructive to note that after his interim report was published in August 2015, there was considerable criticism, in my opinion legitimate criticism, of the role played by the Government, particularly the Taoiseach, in the removal of the previous Garda Commissioner. Members will recall that, in effect, the Taoiseach sent an official from his Department to the Garda Commissioner on the night of 24 March to tell him that the Government could no longer express confidence in him. The legitimate argument and criticism made by Fianna Fáil and, indeed, Sinn Féin at the time was that this was wrong. In effect, the Garda Commissioner had been sacked. What was wrong about it was that the Taoiseach and the Government did not go through the correct statutory procedure. In fairness to Deputy McDonald, she recognised that failing on the part of the Government when she spoke on the Fennelly report on 22 September 2015. She said:

I believe he [the Taoiseach] did that in a very deliberate and very calculated fashion. I think he was conscious of the provisions in law under the Garda Síochána Act 2005. He knew that what he should have done was to go to the Cabinet, state his case and allow the Cabinet to take a decision that I believe would have been inevitable in respect of the Garda Commissioner.

I agree with what the Deputy said then. She displays a clear understanding of the legal position in respect of a Garda Commissioner.

I believe we must try to remove some of the politics from policing. Sinn Féin might not listen to me on that matter but its members might respect the views of Denis Bradley, a former vice-chairman of the Northern Ireland Policing Board. He commences his article in The Irish Timestoday by stating:

The issue of Garda reform is in danger of running away with itself. Political self-interest and structural reform doesn't always pull in the same direction. Attach strong voices with strong opinions to that concoction and there is the danger that momentum outstrips clarity and sense.

Political parties arguing that politics should be taken out of policing while simultaneously putting motions to the Dáil that the Garda Commissioner should be removed from office is the most glaring example of that lack of clarity.

Our party has stated publicly that it cannot express confidence in the Garda Commissioner. We have stated what we would do if we were in Government. However, we must recognise that Dáil Éireann has neither a statutory nor a constitutional role in respect of the removal of a Garda Commissioner. The provisions are set out clearly in legislation. Section 11 of the Garda Síochána Act 2005 sets out the grounds upon which a Government can remove a Garda Commissioner from office, and only a Government can do it. It can remove a Garda Commissioner, first, if he or she is not doing the job diligently, second, for stated misbehaviour and, third, if it believes it is in the best interests of An Garda Síochána. Since January last, the Government must consult the Policing Authority before it removes a Garda Commissioner in respect of the failure to perform his or her policing functions. In addition, under the statutory scheme the Policing Authority has the power to make a recommendation to the Government. That is the process in place. If this House passed a motion of no confidence in the Garda Commissioner and if, subsequently, the Government decided on that basis it had to remove the Garda Commissioner, the Government would be acting unlawfully.

It is clear from even a cursory examination of the statutory regime that the House has no role in the removal of a Garda Commissioner. We must recognise that this House has two great powers. Our first power, as Opposition Deputies, is to hold the Government to account. The second great power is to make and influence laws. We must be careful about straying into territory where we do not have power and cannot exercise control. If we start to do that, we undermine our credibility as an important institution of the State. If this House is able to express no confidence in a Garda Commissioner, why can it not express no confidence in an assistant commissioner, deputy commissioner, chief superintendent or, indeed, a sergeant? There would be nothing to stop us from doing that. As I said last night, why limit it to the justice area? Why do we not move into the education area and have the House declare no confidence in teachers or other individuals who have important State jobs?

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