Donncha O'Connell: We may need a citizens' assembly on national security
The work of two commissions — on the future of policing, and on the Defence Forces — span an era in which new threats emerged, including the HSE cyberattack and Russia’s war on Ukraine. File picture
A number of events threatening national security have occurred since September 2018 when the Commission on the Future of Policing recommended a fusion centre model to pool expertise and to provide an authoritative source of advice for Government.
On foot of the commission’s recommendation the National Security Analysis Centre (NSAC), headed by Dermot Woods, formerly of the Department of Justice, was established.
The Government has also in recent months published legislation to establish an office of independent examiner of national security legislation to provide oversight along the lines of similar offices that have existed for some time in the UK and Australia.
When established, this office will have oversight of all actors engaged in national security.
The recommendation of the commission to establish an entity like NSAC was informed by a number of factors.
The objective merit of the fusion centre model used in many jurisdictions made its own case and the commission was also minded to dilute the near-monopoly on national security and intelligence matters held by An Garda Síochána.
It also seeks to address gaps in garda capacity — particularly in the area of cybersecurity — and to enhance information-sharing with other relevant agencies in the security space, particularly the Defence Forces, taking account of the international and transnational dimension of many national security threats.
However, An Garda Síochána remains a national security and intelligence service and that function was not separated from its core policing function or transferred to another entity, although this option was considered seriously by the commission.
The commission also proposed a strengthening of the security and intelligence capability of An Garda Síochána as a matter of urgency.
Since 2018, the cyberattack on the HSE and a number of security events — predating but connected to the war in Ukraine — underscored the case for significantly enhanced national security capacity and improved coordination.
This imperative was amplified in unequivocal terms in the Report of the Commission on the Defence Forces published in February 2022.
It set out a range of options for the future of the Defence Forces highlighting major vulnerabilities faced by the state.
In relation to military intelligence specifically, it called for this to be ‘underpinned by appropriate legislation within the context of a coherent national intelligence architecture’.
As regards the gathering and sharing of information and intelligence by the Defence Forces and An Garda Síochána, the report stressed the need for greater clarity in relation to the gathering, analysis, and use of information by both agencies, concluding that “some overarching legal and governance framework” was urgently needed to clarify roles and optimise cooperation and collaboration.
Presumably, it follows from this that NSAC should be placed on a firm statutory footing?
In whatever implementation plan is adopted by Government to advance the recommendations of the Commission on the Defence Forces, this should be given priority and there is no reason why it could not even be included in the Policing, Security and Community Safety Bill, already published, to give effect to recommendations of the Commission on the Future of Policing.
This would be consistent with the plan to place the independent examiner on a statutory footing and go some way towards clarifying and strengthening institutional and functional arrangements for national security.
In relation to oversight of national security, a cornerstone of the new edifice, the published legislation makes it clear that this office will be held by either a senior counsel or a serving or retired judge. The likelihood is that the office will be held by a judge but this is not the norm in other jurisdictions where this model of oversight is used.
In fact, it is arguable that some of the powerful oversight functions envisaged for the independent examiner — if exercised to full effect — are inconsistent with the holding of judicial office.
It would be better if the legislation was amended to leave open the possibility of recruiting an independent examiner from a wider pool of eligible candidates.
But, as others have pointed out, the range of national security challenges faced by the State goes beyond policing and military concerns with calls now being made for a national conversation in the form of a citizens' assembly about related but transcendent issues such as international cooperation.
This makes abundant sense and is long overdue if we are serious about our future as a nation state fully engaged with the multilateral legal and political order.
In the meantime, however, we could do much to get our national house in order, as recommended by two commissions.
- Donncha O’Connell is a Professor of Law in NUI Galway. He was a member of the Commission on the Future of Policing in Ireland
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