Last week's dispute regarding the extension of the penalty points system for traffic offences raises a question of who will guard the Garda Síochána, writes David Gwynn Morgan
There are two broader aspects of the stand-off between the Government and the Garda Representative Association which warrant comment. They have a major constitutional significance, going beyond the dispute itself.
The immediate row concerns the extension of the penalty points system for motorists, which seems already to have saved several lives. The gardaí say that until a computer network is put in place, the manual system is too cumbersome to operate.
The first of the broader points which bears emphasis is that the Garda Síochána Act 1924, as amended, bars gardaí from being members of trade unions. Gardaí can, however, form representative associations for each rank (there are separate associations for rank-and-file gardaí and for sergeants and inspectors); but, compared to trade unions, these associations must be restricted in two ways.
In the first place, they are not allowed to resort to the usual devices of industrial action, including strikes. This is why, in 2001, thousands of gardaí took part in what was euphemistically called "The Blue Flu"; but which in sober fact amounted to obtaining money (that is their salary) by deception - falsely claiming illness. One alarming feature of this episode is the fact that most successful criminal prosecutions depend, in substantial degree, on judges accepting the truthfulness of Garda evidence.
In the context of the no-strike rule, it is also alarming to read of rumours that sergeants and inspectors might refuse to comply with a request to operate the points system until a new computer is introduced.
The second restriction is that the representative associations are confined to questions of pay, pensions or conditions of service. Plainly this limit is designed to ensure that the associations do not exert an influence on questions of policy such as: whether the gardaí should be armed; how many gardaí are allocated to what types of duty; or whether protection of former Taoisigh should be terminated.
The issue of whether the penalty points system can or should be operated manually, before the necessary computer becomes available, is pretty clearly on the policy side of the line: no one is saying that if the gardaí have to work late to do the necessary work, they will not be paid overtime.
The comment might be made that these restrictions are petty and legalistic. But restrictions are included in respect of police and defence forces throughout the world.
They have also been upheld as constitutional here on the basis that, while they violate the right to free association or free expression, they fit within the exemptions to these rights, to allow for "regulation in the public interest" and the protection of "public order or the authority of the State". Underlying these exceptions is the idea that law and order and the balance between the liberties of the individual and, on the other hand, the use of legitimate force by the State are too important to be allowed to become mixed up with trade union-type activities.
Nor is a huge sacrifice being imposed on the gardaí. Apart from them, other groups in society have, because of the jobs they do, to abstain from certain types of activity: for example, judges and civil servants, like gardaí, eschew political controversy. In the case of the gardaí, they have been well compensated for such abstinence: successive governments have ensured that their salaries outstripped comparable groups, like teachers or nurses. Moreover, they have been sheltered by governments refusing to set up an effective police ombudsman, until developments in Northern Ireland and the shooting of John Carty in Abbeylara made such a position unsustainable.
The other general feature overhanging the points dispute is that the Garda Representative Association chose to put its case in part on the denial of the constitutional rights of gardaí. Probably, as already mentioned, any limitation on the association's freedom to speak out, is justifiable on the basis of the exemption to the constitutional free speech provision.
However, the major point is not this, but that the association's conjuring up of constitutional rights is just one example of the way in which anyone with a sectional interest will attempt to give it a spurious dignity by couching it in the language of constitutional or human rights. If one says "human rights" quickly, and keeps smiling, one can glide over a lot of thin ice and cast anyone saying nay in the role of a person who opposes mother or blueberry pie. This ubiquitous phrase obscures the fact that if one person has a right, someone else has to pay for it. Usually the individual profits and the community suffers.
Let us take two examples from other fields. If a doctor is accused of unethical professional conduct, he or she can claim the constitutional right not only to put their side of the case before their professional brothers and sisters on the medical Council Disciplinary Committee (which really ought to be enough); but on top of that to have all the evidence rerun before the High Court, which also has to find against the doctor before he/she can be struck off. This sets the balance very strongly against the community which needs to be protected from unethical practitioners. Another example: my indulgence in the compensation culture is your insurance bill or the children's playground, which cannot afford to open because of the fear of mega claims.
In the present case, the price immediately at stake - if the gardaí purport to exercise a supposed right not to operate the points system, or to create so much public controversy that motorists insist on being tried in court, and so clog up the system - would be the lives that would be lost. But from the wider perspective, there is another even more important principle at stake. This is the basic notion that policing is decided by the elected Government, in consultation with the Garda Commissioner. A departure from this principle would be tantamount to an incipient police coup.
David Gwynn Morgan is Professor of Law at University College Cork