New legislation being introduced by the Government to modernise the Garda and its oversight agencies “moves beyond oversight and creates layered controls” over the force, the Garda has said.
It contends that the Policing, Security and Community Safety Bill urgently needed to be changed as it would create an “overly complex and unmanageable accountability”. This would undermine the ability of the Garda Commissioner to control the organisation, it is claimed.
The Garda’s criticisms are contained in a submission by Garda Headquarters, Phoenix Park, Dublin, to the joint Oireachtas committee on justice as part of its scrutiny of the new Bill.
The Garda submission, with a cover letter from Garda Commissioner Drew Harris, said the new legislation would also extend “unregulated, unsupervised and unquestionable powers” to the Garda Síochána Ombudsman Commission (Gsoc), which investigates complaints made against Garda members.
Many of these powers were “absent any tests of reasonableness, suspicion or proportionality” and stronger than Garda powers. Not only would they be successfully legally challenged, the planned changes also have “the very real potential to adversely impact policing in the State”.
`Draconian’ legislation
Last September, The Irish Times revealed Mr Harris had been very strongly critical of a very wide range of provisions in the Bill. In correspondence to the Oireachtas committee, he described the legislation as “draconian”, saying it was marked by an “absence of clarity”.
In An Garda Síochána’s full submission to the committee on the Bill, which has just become available, those criticisms are expanded upon. “The apparent total disregard of An Garda Síochána’s previous observations on the earlier iteration of this Bill gives rise to deep concerns,” it is said.
It is claimed the Bill “creates overly complex and unmanageable accountability frameworks” that will only serve to “overburden the Garda executive, removing them from their core policing functions… (and) actual leadership of An Garda Síochána”. The Bill also “fetters the capacity” of the Garda Commissioner to “control the organisation as a true chief executive officer”, which was a “significant recommendation” of the Commission on the Future of Policing in Ireland (CoFPI).
The Garda submission states that if the Bill was enacted in its current format – with the oversight regime becoming more complex and its powers enhanced – the Garda force would be left with “inadequate control” over key areas. These include: the recruitment and promotion of staff, employee conduct and employment termination, decision-making, strategic direction, self-regulation and vision-setting, among others.
The Garda submission also states the new legislation will give outside entities the power to dictate and direct the Garda Commissioner and the direction and activities of the force. Policing priorities will be “determined” by the new Policing and Community Safety Authority and approved by the Minister, who will also “determine security priorities”. The Garda’s “strategic plan” must be adopted by the new Garda board and can only then be submitted to the Minister, with a similar arrangement in place for the force’s “annual service plan”.
`Spirit and intention’
Capital plans must be “approved” externally and the Garda budget will be “allocated” to the force. The Garda will be required to act on “policies of the minister for government” and “directives issued to him or her”. The Garda Commissioner will be accountable to the new Garda board for his or her performance and is also “obliged to account fully” to the minister and government”. The minister of the day, with the consent of Government, will also have the power to “issue directives” to the commissioner.
The submission states the Bill “fails” to transpose the “spirit and intention” of the CoFPI recommended reforms but also “trammels” the “constitutional rights in respect to the dignity, privacy and human rights” of Garda personnel. So many of the provisions relating to the investigation of Garda members were so problematic, the “very architecture of this Bill” is underpinned by “systematic disregard for proportionality and fairness”.
The tone and strength of the criticism will be regarded as a blow to Minister for Justice Helen McEntee and appears to put the Government at odds with the Garda Commissioner.
That legislation, which is not expected to be enacted for some time, is intended to provide for the changes to policing in the Republic, and to Garda oversight, recommended by CoFPI. That commission was established under former Boston police chief Kathleen O’Toole after a period of repeated Garda controversies and reported almost four years ago.
In response to queries, the Department of Justice said the submission prepared by the Garda had been drawn up on August 2021 and that since then there had been meetings between Garda management at Minister for Justice Helen McEntee and her officials on the issue of the Bill.
The Department added the Minister was “committed to producing a set of legislative proposals that are true to the ambition of the Commission on the Future of Policing and will provide a solid foundation for policing in the State well into this century”.
It said the Bill provided “the most wide ranging and coherent reform of policing in a generation”. It would “improve the performance and accountability of our policing and security services” and supported the “human rights of all people throughout Ireland to be and feel safe in their communities”.
