Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I thank Deputy O'Callaghan for the opportunity to engage with Members of the House on the critically important issues of Garda accountability and Garda oversight. I welcome the opportunity for Members to reflect on the role and work of the Policing Authority, which has been undertaking a most valuable programme of work since it was set up. While I acknowledge and appreciate that the Bill purports to provide the authority with additional powers in line with the recommendations contained in the Joint Committee on Justice and Equality's December 2016 report on Garda oversight and accountability, I regret that I must oppose the Bill now before the House.

My opposition to the Bill is primarily based on, but not limited to, the issue of its timing, which does not take account of the process under way through the Commission on the Future of Policing in Ireland or the legislation governing the Policing Authority, in particular section 62O of the Garda Síochána Act 2005, as amended. There are further serious difficulties with the Bill which I will have the opportunity to outline to the House later in my speech. I must draw the attention of the House to the substantial grounds that exist for opposing this legislation. It goes without saying that the Government is fully supportive in principle of the Policing Authority having appropriate powers in order that it can carry out its oversight functions in an efficient and timely manner.

A fundamental difficulty with this Bill is that it is being introduced at a time when the Commission on the Future of Policing in Ireland, which was established in April of this year following consultation with the party sitting opposite me, is undertaking a comprehensive examination of all aspects of policing in Ireland. That examination will consider all functions currently carried out by An Garda Síochána and the range of bodies with oversight and accountability roles, namely, the Policing Authority, the Garda Inspectorate, the Garda Síochána Ombudsman Commission, the Department of Justice and Equality, and the Government. I note in particular that Deputy O'Callaghan is on record as welcoming both the membership and the full terms of reference of the commission. He has committed his party to working constructively with it. The House will be aware that the commission is to report by September 2018 and may, in accordance with its terms of reference, bring forward immediate proposals and rolling recommendations for implementation in advance of its final report.

The terms of reference require the commission to bring forward proposals addressing the following five themes: the structures and management arrangements required for the most effective delivery of policing, including all functions currently carried out by An Garda Síochána; the appropriate composition, recruitment and training of personnel; the culture and ethos of policing; appropriate structures for oversight and accountability; and the legislative framework for policing in Ireland. I emphasise again that oversight and accountability is one of the five themes under consideration by the commission.

While I appreciate that the Deputy's Bill has been initiated in the spirit of trying to contribute positively to the overall governance and oversight architecture for An Garda Síochána, I strongly believe that progressing this Bill through the legislative process has the potential to cause uncertainty for the commission. This is particularly so in light of the fact that the commission is also required to examine the legislative framework for policing in Ireland. Having said that, I acknowledge that there is a serious need for further reform of the framework of governance for policing in the State. This is evidenced in the terms of reference set by the Government for the commission. There is a clear consensus in the House on the need for reform. I would have thought that there would also be a consensus on the methodology by which that reform might be identified and made effective, namely, on foot of the commission's report and subsequent recommendations. I take this opportunity again to encourage Members of the House to engage fully with the Commission on the Future of Policing in Ireland as it goes about its important analysis and consultation process.

Furthermore, I wish to draw the attention of Members of the House to section 62O of the Garda Síochána Act 2005. This section requires the Policing Authority to prepare a report on its effectiveness and the adequacy of the functions assigned to it by the legislation. The report can contain recommendations for improving the effectiveness of the authority and must be submitted to me, as Minister, by the end of this year. I am required to lay that report before the Houses. While it is, of course, accepted that the authority must have whatever powers it needs to carry out its oversight functions, it would be premature of this Legislature, which gave the authority the role of identifying any gaps in the legislation, to presume to know the answers before the authority has spoken. It would be far better to wait to hear from the authority and then to consider what legislative changes are required. It would then be for this House to decide whether to make such changes in the early part of next year or whether to wait for the commission's report in September. Instead, if this Bill were to be enacted in advance of the reports of either the authority or the commission, we would run the risk of being accused of once again failing to deal comprehensively, in a holistic way, with the accountability and governance of An Garda Síochána. Indeed, the very fact that we have commenced legislative consideration of the Bill could be construed as evidence of a fragmented and incoherent approach to the much-needed programme of reform of An Garda Síochána.

While it is clearly the case that lawmaking in the State is the exclusive prerogative of the Oireachtas, I feel it would assist our deliberations if the views of the Policing Authority on Deputy O'Callaghan's Bill were sought. I put on record my appreciation of the time taken by the authority to engage positively with the Bill and for providing me with its analysis. In its observations the authority demonstrates some concerns with the Bill, in particular about the implications for its independent oversight role should it be conferred with the supervisory or operational powers outlined in the Bill. In the view of the authority, the Bill has the potential to weaken the clarity in the existing statutory framework about the role and functions of the Commissioner's responsibilities and accountability, thus compromising the independent oversight of the authority. The authority is also of the view that the Bill is premature at this juncture having regard to the ongoing work of the Commission on the Future of Policing in Ireland. It considers that the commission should be allowed to complete its work and produce its report. The authority also makes that point that it does not have any role in respect of the security of the State and that, accordingly, it would not be in a position to assume the responsibilities in the Bill which relate specifically to security.

To take up the point about security, I will now address what is perhaps the most serious difficulty with this legislation, namely, that it makes no distinction between policing and security matters. The Deputies will recall that during the passage of the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015, the Oireachtas decided that the authority was to have no role in respect of security services. Instead, the 2015 Act established a reporting relationship between the Garda Commissioner and the authority in respect of policing services. This distinction between policing and security is, in part, intended to address any constitutional issues concerning the delegation of the Government's executive powers under Article 28 of Bunreacht na hÉireann. However, the Bill before us makes no distinction between security and policing services and serves to give the authority oversight over the security functions of An Garda Síochána, which would put these provisions in direct conflict with the other sections of the Act which deal with the functions of the authority and would bring the Bill, and by extension the Act were the Bill to be enacted, into potentially difficult ground constitutionally. Even if there were no constitutional issues, the Bill makes no concession to the fact that other provisions in the Garda Síochána Act delimit the authority's remit to policing services. Instead, if we enact this Bill, the authority will both be excluded from dealing with security issues and be responsible for directing the Commissioner in respect of them. I fail to see how this can be right and proper.

I will now turn briefly to the main provisions of the Bill. I will outline some of the key areas of concern, always bearing in mind the concerns already outlined in respect of security matters. Section 2 requires the Commissioner to keep the authority fully informed of each and every matter which has required an internal review, audit or examination of the functions or operation of the Garda Síochána to be requested by the Garda Commissioner, a deputy commissioner or assistant commissioner. In practice, current legislation enables the authority to require the Commissioner to provide it with any review, audits or examinations which it considers necessary for the performance of its functions. I refer the Deputy to section 41A(2) of the 2005 Act, under which the authority can require the Commissioner to furnish "a report on any matters connected with policing services or the performance of the functions of the Commissioner relating to such services that may be specified in the requirement". Indeed the Commissioner is obliged to provide that report, which the authority can publish. This provision is in addition to the provision in section 41A(1) of the Act which requires the Garda Commissioner to keep the authority fully informed of matters appropriate to the functions of the authority and any other matters which the Commissioner considers should be brought to its attention.

Section 3 purports to enable the authority to dismiss summarily any member of An Garda Síochána where it forms the opinion that, by reason of the member's conduct, his or her continued membership would undermine public confidence in An Garda Síochána. Indeed the proposition that the authority could dismiss the Commissioner or a deputy commissioner was considered in the development of the 2015 Act but, on the basis of legal advice provided by the Attorney General, the Act instead provides that the authority can recommend to Government that a Commissioner or deputy commissioner be dismissed if the reasons for removal relate to policing services.

It is unclear how this provision which appears to provide the authority with power to summarily dismiss would work, having regard to the fact that the Act of 2005 contains detailed procedures to guarantee fair processes for any person concerned.

Section 4 of the Bill would require the authority to supervise the functioning of the Garda Commissioner's office, establish policies and procedures, cause to be published and made accessible to the public all sections of the Garda code and Garda operational policies and review the adequacy and appropriateness of policies and procedures that underpin the operation of An Garda Síochána. Under current law, the authority performs a wide range of functions that are most extensive in overseeing the corporate governance structures and performance of An Garda Síochána in the area of policing. Rather than critiquing the individual elements of the section, I draw attention to two key difficulties. First, the intention is that the Policing Authority would supervise the discharge by the Commissioner of his or her functions and could direct him or her in the management of his or her office in the performance of his or her functions. The authority, of course, is independent in its oversight. An Garda Síochána must report to the authority on policing matters, but it is fully accountable to the Government. To insinuate the authority into the management of An Garda Síochána in the various ways set out in the Bill would transform the role and function of the authority from overseer to supervisor or director. The question would then arise as to whom the authority would be accountable for the operation of the Commissioner's office. If the authority were to direct the Commissioner to do something that went wrong, who would be answerable? The second problem is that, under section 26 of the Act, the Commissioner is responsible for directing and controlling An Garda Síochána. He or s he is required "to carry on and manage and control generally the administration and business of the Garda Síochána". The Bill proposes no amendment to section 26 that would recognise that what is proposed by the Deputy in section 4 would be in direct conflict with the provisions of section 26.

Section 5 of the Bill appears to be intended to provide the Garda Inspectorate with a right to enter any Garda station without giving prior notice to An Garda Síochána. Again, I do not know whether this is intended by Deputy Jim O'Callaghan, but this is the only provision that would require the Garda Inspectorate to obtain the approval of the Minister in order to carry out itsfunctions. It is also unclear how the provision would interact with section 118 of the Act which requires that a written protocol be agreed between the Garda Inspectorate and the Garda on the provision of the information required.

The Government remains fully supportive of the Policing Authority. I acknowledge its hard work, determination and skill, particularly of its chairperson, Ms Josephine Feehily. We will continue to ensure the authority has appropriate powers in order that it can carry out its oversight functions in an effective and efficient manner. I believe, however, that it is reasonable to propose that any extension of the powers of the authority take into account its views on what additional role, functions and powers it needs and also the recommendations from the Commission on the Future of Policing in Ireland which are awaited. The Bill pre-empts both the views of the authority and the recommendations.

I read in the media that Deputy Jim O'Callaghan believes that if his Bill had been enacted, we would not have experienced the recent Garda controversies. I do not accept that at all. The roots of the controversies we have seen are deep cultural issues in An Garda Síochána that are not amenable to quick legal fixes. If they were, there would be no problem a Bill could not solve. As the Deputy will agree, however, having regard to his experience and expertise in these matters, policing is complex and responses to problems with policing have to reflect what is real complexity. Having said that, I welcome and share his genuine and sincere commitment to reform of An Garda Síochána. Where we disagree is on the timing of further legislative change. I am convinced that further ad hocpiecemeal legislative change at this point, even if the Bill before us did not have the deficiencies mentioned, would be wrong. Instead of implementing such change, we should allow the authority, having operated under the existing legislative framework, to tell us what it believes is needed and, perhaps more importantly, the Commission on the Future of Policing in Ireland to at least issue its report. We will then be in a position to consider comprehensive proposals that will address the governance and accountability framework in an holistic manner. I invite the contributions of Deputy Jim O'Callaghan and other Members of the House, be they on the Government or the Opposition side, on this important framework. In the meantime, while I fully understand and acknowledge the spirit in which the Bill has been introduced, I must, on behalf of the Government, oppose it.

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