Motions over commissioner could be legally halted

Three no confidence motions in Garda Commissioner Nóirín O’Sullivan could be blocked after it emerged Oireachtas officials are taking senior counsel advice on whether they can be heard.

Despite Sinn Féin, Labour and Solidarity-People Before Profit all planning to put down motions seeking Ms O’Sullivan’s dismissal, the Irish Examiner understands they may ultimately be prevented from doing so.

In the immediate aftermath of the parties confirming they are seeking the motions last Monday, officials for the cross-party committee on privilege and procedures sought internal Oireachtas legal advice on the moves.

This was because of concerns the motions may not be legal as only the Government or Policing Authority can remove a Garda commissioner.

The initial legal view was that the motions should be allowed as they were “substantive” and met the requirements of an Oireachtas document known as the Salient Rulings of the Chairman of the Committee on Privilege and Procedures, which effectively decides what can and cannot be raised in Leinster House and the limits to Dáil privilege.

However, while accepting this view, committee officials are now seeking an external senior counsel second opinion which could controversially block the motions.

It is understood that while committee officials are still working off the original legal advice, they are concerned there are few if any precedents for a no-confidence motion to be heard in the Dáil against someone who is not elected and is not there to represent themselves.

While Fine Gael ministers and Fianna Fáil have stated a similar view in recent days, any potential bid to block the Dáil motions is likely to provoke a furious reaction from Sinn Féin, Labour and Solidarity-People Before Profit.

Meanwhile, the Government is understood to be open to supporting a Fianna Fáil bill published on Thursday which would allow the party to avoid directly tackling the commissioner’s future by instead seeking drastically increased powers for the Policing Authority watchdog.

On Thursday evening, hours after the commissioner attended an Oireachtas justice committee grilling over the phantom drink driving tests and almost 15,000 wrongful traffic conviction scandals, Fianna Fáil justice spokesman Jim O’Callaghan said his party can still not express confidence in her.

However, despite the position, he repeated the view that it cannot back the no-confidence motions amid opposition claims the reason is the party does not want to allow Sinn Féin to take the lead on the issue, and instead sought improved powers for the Policing Authority.

The Policing Authority said last night it “notes” Mr O’Callaghan’s bill and said it will examine its powers in a “report to the Tánaiste [Justice Minister Frances Fitzgerald] after two years of operation”, as it is “obliged by law” to do so.

It did not immediately respond to a request for comment on whether it sought or wants the extra powers, and said it was last night expecting all information it had sought from the gardai which it “will examine over the coming week”..

However, the Government — which will on Tuesday discuss plans for a root and branch garda review — is believed to be open to supporting the Fianna Fáil move.

Social Protection Minister Leo Varadkar said he and the Government continue to have confidence in Ms O’Sullivan, who he said is “part of the solution” and “genuine about trying to clean up some of the very dirty practices that have been going on too long”.

He said parties seeking to put down no confidence motions “should think long and hard about it”.

“It’s one thing for Dáil Éireann to withdraw confidence in somebody they appoint, but it’s another thing to pass motions of no confidence in other individuals you don’t have the authority to dismiss,” he said, adding he believes Ms O’Sullivan is a “private citizen”.