Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

The Senator has already outlined the purpose and scope of his amendments and I do not propose to cover the same ground in detail. The effect of the amendments would be, in particular, to remove from the Government, the Minister for Justice and Equality in particular, any role in the appointment or dismissal of members of the Garda Síochána. Obviously, the main area of attention with regard to the Senator's amendments must be his proposals in respect of the most senior Garda ranks, and my response will focus primarily on those ranks.

Before discussing the proposals on the appointment and dismissal of senior Garda personnel, however, it is crucial to bear in mind that there are a number of very significant contextual matters that must be fully taken into account. The first and most important of these matters is that, in this jurisdiction, all our legislation must be fully compatible with the Constitution. The last thing any Member of this House would wish is a serious constitutional question mark hanging over any legislation. In that connection, I draw the attention of Senators to Article 28.2 of the Constitution, which specifically provides for the Executive power of the State to be exercised by or on the authority of the Government.

In the course of the drafting of this Bill, senior counsel provided legal advice to the Office of the Attorney General on the applicability of Article 28.2 with regard to legislative proposals which were being considered for inclusion in the Bill. This was a process in which written legal advices were supplied and in them senior counsel indicated clearly 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. In that regard, while the senior counsel acknowledged that an Executive power of the Government under Article 28.2 can be delegated, he also stated it would not be constitutionally permissible for such a delegation to amount to an abdication of the Government's Executive power. Within this framework senior counsel specifically referred to the appointment and dismissal of the Garda Commissioner and his conclusion was that any legislative proposal related to the establishment of a policing authority should preserve, ultimately, the power of the Government to appoint or dismiss the Garda Commissioner. As Senators will appreciate, to address the relevant constitutional concerns, the advice of senior counsel is reflected in the provisions of the Bill. Given the importance of their functions, a similar approach as been adopted in the case of deputy commissioners.

When considering the Senators' amendments, it is also necessary to take account of the fact that An Garda Síochána is a security service for the State. Senators will be aware that under the Bill the Garda Commissioner will continue to be accountable to the Government in respect of national security. This is an approach that has a wide measure of support within the Oireachtas. It goes without saying that national security is a key function of the Government. The Minister's view, leaving aside the very clear constitutional dimension involved, is that the appointment of the head of the national security service should be undertaken by a body other than the Government. To put the matter at its simplest, in view of the functions involved, the final appointing decision must rest with the Government. For similar reasons, the Minister is satisfied that the Government must continue to have the capacity to remove senior Garda members on security grounds.

While there are other issues I might raise regarding the Senators' amendments, at this juncture I should concentrate on the functions being conferred on the policing authority by the Bill in the appointment and removal of Garda personnel. Under the Bill, the authority will have a leading role in determining a large body of Garda appointments. This will operate, in particular, at the very highest levels of the Garda organisation and the authority will also have general functions in 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 policing authority, following a selection process undertaken by the Public Appointments Service. In exceptional circumstances, where the Government is unable for significant reasons to accept a nomination made by the authority, it will have to state its reasons. Where this occurs the Government will be obliged to ask the authority to nominate another person for the position.

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 for Justice. Similar arrangements are in place in Scotland where a police authority has recently been established. In the case of Garda personnel, between the ranks of superintendent and assistant commissioner, the Bill provides that all appointments will be made directly by the policing 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.

Regarding dismissals and in line with the constitutional and security principles I have outlined, the Garda Commissioner or a deputy commissioner will be removed by the Government. At the same time, the policing authority will have the power to recommend to the Government that a Garda Commissioner or a deputy commissioner be removed for policing reasons. While the Government will not be obliged to adopt such a recommendation, it is very difficult to envisage circumstances in which it would not do so. Dismissals of persons between the ranks of superintendent and 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 Senators' amendments would go beyond the appointment and dismissal of Garda personnel, the Minister wishes to make it clear that the overall approach adopted to the Bill by the Government is that relevant functions should be transferred from the Government and the Minister to the policing authority where this is permissible and appropriate. However, the transfer process has its limitations and has to be undertaken against the general constitutional and policy backgrounds I have highlighted. Within these frameworks the Minister could not accept a situation, as proposed in the amendments, where the Minister for Justice and Equality, for substantial legal and policy reasons, and the Minister for Public Expenditure and Reform, for budgetary reasons, would not be involved in determining the numbers of persons to be appointed to senior Garda ranks.

Overall, the Minister appreciates that the approach of the Senators in the amendments is to remove what they perceive to be a system in which key elements could be the subject of political considerations. However, as I have indicated, the Minister believes the significant reforms and measures provided for in the Bill are fully adequate to address concerns they might reasonably have. In particular, substantial powers are being conferred on the new policing authority which will be independent in the exercise of its functions.

Before I conclude on these amendments, I reiterate the earlier statement made by the Minister in the House that the proposals made in the Bill for the establishment of the independent policing authority will play a vital role in ensuring public confidence is maintained in An Garda Sfochana and the essential services it provides. Moreover, as I have indicated, they have been developed to address very important constitutional and policy requirements that arise within both the policing and security areas. Unfortunately, for the reasons I have given, the amendments do not meet these requirements and as such the Minister is not in a position to accept them. Accordingly, I ask the Senators not to press them.