Ex-Policing Commission member raises concerns over Ireland's new security oversight chief

Professor Donncha O'Connell expressed 'serious concerns' over the appointment process — not least because of the 'tiny pool' of senior judges available or interested. File picture

A former member of the Policing Commission has expressed serious concerns at the process of appointing, and the powers being given to, Ireland’s first oversight chief on security legislation and intelligence services.

Donncha O’Connell, Professor of Law at University of Galway, also described as “perplexing” the failure to publish a high-level government study into recommendations by the commission to transfer garda prosecution powers to a separate prosecution agency.

Prof O’Connell was commenting on the passage through the Oireachtas this week of the Policing, Security and Community Safety Bill, which is the primary piece of legislation aimed at implementing the recommendations of the Commission on the Future of Policing in Ireland (CoFPI).

Its report, published in September 2018, made a series of key recommendations, including on policing and garda oversight, as well as a new Independent Examiner on security laws and the transfer of garda prosecution powers to other agencies.

In contrast to the security oversight chiefs in Australia and Britain, which the Department of Justice used as a model for the Independent Examiner, the role in Ireland was legally confined to senior judges, to the exclusion of senior barristers.

It is not clear what the appointment process involves and, if, for example, senior judges contact the department and express an interest or if senior department officials “hand-pick” candidates they consider as suitable and suggest them to the minister and the taoiseach.

Prof O’Connell said he had “serious concerns” over the appointment process — not least because of the “tiny pool” of senior judges available or interested.

He said of greater concern was the broad provisions in the legislation for “withholding or redacting information” to the Independent Examiner.

“These provisions fundamentally undermine the potential of this new office to be effective,” he said.

They will also have deterrent effect on potentially good appointees who, if they are serious about doing the job properly, will not take it on knowing that their power to carry out effective oversight is so clearly curtailed.

The equivalent of the Independent Examiner in both Britain and Australia have publicly stated there is no such restriction on their work.

Another key recommendation in the CoFPI report — the transfer of garda prosecution duties to an outside prosecution service — is not dealt with in the policing bill.

Instead, it was referred in September 2020 to a high-level review group [HLRG] to examine.

It was due to submit a final report before April 2022.

In a statement, the Department of Justice said: “Minister McEntee intends to bring a Joint Memo for Government with the Department of the Taoiseach to Cabinet in the near future seeking approval for publication of the Final Report of the HLRG and setting out the next steps for the implementation of its recommendations.”

Commenting, Prof O’Connell said: “In making the unanimous recommendation that we did in 2018 we understood that this would have significant revenue implications and accepted the need for further analysis. It is now five years on and the failure to publish the study is perplexing.”