Security watchdog proposals show Ireland's 'addiction to weak oversight', says legal expert

A proposal to establish an independent examiner of security legislation is contained in the Policing, Security and Community Safety Bill — but experts warn the proposed new office will not have sufficient powers. 

The Government has “undermined” recommendations made by its own expert policing commission for the country’s first-ever security oversight body, a former commission member has said.

Donncha O’Connell, Professor of Law at University of Galway, said legislative proposals for the new Security Examiner again reflected the country’s “addiction” to weak oversight.

A member of the now-defunct Commission on the Future of Policing in Ireland, Mr O’Connell was commenting on the Policing, Security and Community Safety Bill 2023, which Justice Minister Simon Harris introduced in the Dáil last week.

In addition to reforming provisions on community safety and policing oversight, the 268-page bill also details major developments in the monitoring of Ireland’s security services and laws governing national security and organised crime.

But concerns have been expressed about some of the provisions setting up the Security Examiner.

Under the bill, security agencies and offices, or “information holders” as they are known, are not only allowed but are legally obliged to withhold information or documents if they believe it is necessary to safeguard international intelligence sources or protect the identity of a source.

The bill also restricts potential candidates for the position of Security Examiner to current or former senior judges.

Prof O’Connell said: “It is so disappointing to see a key recommendation of the Commission on the Future of Policing — to create a scheme for effective oversight of national security — undermined by the Department of Justice legislative proposals for a new office of Independent Examiner that falls far short of the standards of scrutiny that exist in other jurisdictions.” 

He said it was yet another example of the country’s “addiction to light touch regulation and weak oversight”.

He added: “So much for the promise of reform that was indicated in 2018, when all recommendations of the commission were approved by Government.” 

Concerns

His criticism follows concerns made by the Australian security legislation watchdog — one of the models for the Irish body — and the Irish Council for Civil Liberties.

The Australian independent national security legislation monitor (INSLM), Grant Donaldson, said he was “disappointed” at the restriction over who could be appointed to the position.

He said the proposals were effectively giving the security services a “veto” over what could be provided to the Security Examiner, pointing out that he was entitled to see everything, with limitations only on what he could publish.

The ICCL issued similar concerns regarding the power of the Security Examiner and also said the bill contained new provisions preventing the watchdog from publishing anything that might prejudice “international relations”.

Introducing the bill, Minister of State at the Department of Justice James Browne said the stipulation that the Security Examiner should be a senior judge was “consistent” with the policing commission’s recommendations.

He said a senior judge will have the necessary experience and expertise in the balancing of competing rights, would be independent and impartial and would assume some of the existing oversight functions, which are currently performed by judges.