Relationship between Shatter and Garda Commissioner at heart of debate

In the late 1990s, when a modest reform of the Garda Complaints Board was being mooted, then minister for justice John O’Donoghue took seriously a suggestion from a Garda representative body.

It recommended that those who made vexatious complaints should be prosecuted. But this was something that would have discouraged legitimate complaints.

With its chilling effect, it could have come straight out of Alice in Wonderland such as when the King said to the Mad Hatter: "Give your evidence and don't be nervous or I'll have you executed on the spot."

Up until then, the idea of robust and independent oversight of the Garda Síochána was unthinkable. The Donegal Garda division scandal and the Morris Tribunal of Inquiry put paid to all that. The establishment of powerful new policing arrangements in the North was germane. The case for wholesale change became inarguable.

Recent controversies surrounding alleged covert surveillance of the Garda Síochána Ombudsman Commission offices, and allegations made by Garda whistleblowers, have renewed focus on the arrangements introduced by the Garda Síochána Act 2005 – and their shortcomings.

While two independent inquiries have been launched, there is also a third process under way. The Oireachtas justice committee is examining the effectiveness of the GSOC, which investigates alleged Garda criminality and misbehaviour, and incidents (including fatalities) which occur during Garda operations.

The GSOC has worked well in some ways, according to a former commissioner (and former editor of this newspaper) Conor Brady. He has instanced the decision to have three commissioners not one (preventing situations where the ombudsman is left isolated); the power to appoint designated investigating officers; giving GSOC officers powers comparable to gardaí during investigations; and the establishment of district policing boards.

But for Brady and others, including former deputy chairman of the North's policing board Denis Bradley, there were flaws and omissions in the Act that deprive the GSOC of sufficient powers.

Limited scope
The main one identified by Brady is putting the Garda Commissioner beyond the remit of the GSOC. "It meant that we could investigate everything up to a certain level. But beyond that level, everything goes through the commissioner. It is not just him personally but every transaction that takes place in his office and every file that goes through the office. This is not the case in the North and in Britain.

"Asking GSOC to supervise the gardaí and not the commissioner is like the Central Bank being told it can regulate the AIB branches but not its headquarters in Ballsbridge or its chief executive," he said.

Why is this? “The argument advanced, and the Department of Justice clings to it like superglue,” said Brady, “is the commissioner is not just head of the police but also the head of national security.”

In Britain, those functions are performed by MI5 and MI6. Once State security is cited, the 2005 Act is specific: thou shalt not pass. Bradley said security can be widely defined: “I have never been impressed by the national security argument. It can mean anything.”

Both have suggested setting up a body that would adjudicate on when the function related to policing or to national security.

“There are modalities by which the commissioner’s security functions could be red-circled so that he could be made amendable to the GSOC in his policing functions,” said Brady. “It could be effected by a very simple judicial referee.”

Other issues the committee may address include the lack of access by the GSOC to the Pulse computer system; a better use of informal resolution mechanisms for minor complaints and indiscretions; and bringing the work of the confidential recipient under the remit of GSOC. The recipient role was created under an obscure regulation and its functions and powers are not fit for purpose.

There is an overarching argument that was brought into sharp focus in the public spats between the GSOC and the whistleblowers on one side and Minister for Justice Alan Shatter and Garda Commissioner Martin Callinan on the other. It illustrated the close relationship between the Minister and Commissioner.

Under the 2005 Act, the Minister can issue any directive to the commissioner and the latter must “account fully” to the Minister and department.

Potential for 'suspicion'
Said Bradley: "That relationship would need to be rearranged . . . I think it is too close and comfortable, and is obscuring accountability lines. That leaves the space for too much suspicion if things go wrong." Bradley believes the 2005 Act introduced oversight in a minimalist fashion but the extent of power exerted by Government was not addressed adequately. The Government appoints officers of superintendent rank and higher including the commissioner, he points out, asserting the force becomes dependent on its political masters.

Bradley and Brady have said a policing board is also
required. "Modern democracy has moved on to a greater openness and transparency," said Bradley. "I cannot understand the thinking that says you can avoid those changes in policing. It does not ring right."