The rush to establish the State’s Policing Authority has left important questions about how it will work go unanswered, reports Cormac O’Keeffe
IT’S 2015 and a young boy playing on the streets of Dublin on a Saturday afternoon is mistakenly gunned down in a gangland shooting.
That night, elderly brothers in rural Tipperary are badly beaten and left for dead by a roaming burglary gang.
Families and communities fume at the lack of gardaí and the failure of the Government to tackle gangs.
Garda associations point out there was only one patrol vehicle in that part of Tipperary, while senior officers in Dublin say they don’t have enough detectives to investigate all the murders.
The media screams for something to be done and furious opposition parties demand answers in the Dáil.
Justice Minister Frances Fitzgerald calmly stands in the chamber, expresses her sympathies with the families but points questions — about resources, garda responses, and priorities — to the new Policing Authority.
This may be a possible consequence of the new authority, one which former justice minister Michael McDowell has suggested.
He is one of the few public figures to have come out strongly against a police authority.
He told the MacGill Summer School the authority would allow the Government to distance itself from any blame when things go wrong.
“I don’t believe it’s a good idea for that State to divest itself of responsibility and distance themselves from blame,” he said.
And it’s not that we haven’t been here before.
When asked about health matters when minister, Mary Harney regularly told frustrated opposition spokespersons their query “was a matter for the HSE”. She was often criticised for using the HSE as a “mudguard”.
The Department of Justice may see this as the silver lining of having the very heart of its powers taken away from them.
This is a department which is still reeling from a succession of attacks this year — both in the Guerin Review and the Toland Report — and the departure of its secretary general, Brian Purcell.
All of the above is with the caveat that we have yet to see the legislation governing the authority, establishing its actual independence and range of powers and functions.
Given Ms Fitzgerald said the authority would be set up by the end of the year, the legislation is going to have to be published very soon.
This rush, at the behest of Taoiseach Enda Kenny, has put civil servants into a spin as they try to sort out all the necessary steps, complicated by the necessity to fill the vacancy of Garda Commissioner.
Even though the Taoiseach announced the authority back in March there has been a sudden rush in recent weeks to advertise the position of chairperson of the Policing Authority. A deadline of just 10 days was set.
Moreover, unlike the position of Garda Commissioner, there is no independent interview process conducted by the Public Appointments Service. They will not be detailing the skills and expertise of candidates to the Government and making a recommendation.
The PAS will merely forward on expressions of interest (if they meet broad criteria) to the Government, which will select the candidate.
The process has been strongly criticised by legal experts and civil rights groups, but Ms Fitzgerald has said the process is “open and transparent”. A spokesperson said the speed was to ensure that the chair could help set up the authority and be involved in the selection of the commissioner.
The first round of interviews began last week, so the chairperson is going to have to be appointed soon. Observers expect that the chairperson would want to see the legislation first.
Whatever about the unseemly rush, senior sources still expect a person of considerable talent and repute to be appointed.
“There’s no way Frances Fitzgerald will appoint a crony — not after all everything,” said a source.
Someone like former Northern Ireland’s police ombudsman Nuala O’Loan has been suggested as the type of candidate Ms Fitzgerald would want to appoint. Such an appointment would send a clear message to Gardaí and the public (and indeed Government) that a person of irreproachable independence and experience will head the country’s top police watchdog.
It is possible — as recommended by the Oireachtas justice committee — that a small authority will be set up on a shadow basis, before the formal establishment.
As it grapples with creating a significant bureaucracy, assuming many of the administrative and financial functions of the department, the authority will also have the job of instilling confidence in the public in the Garda Síochána and building up morale among gardaí.
IT WILl have the job of creating and deepening lines of communication with Garda HQ, drawing up working protocols, and finding a balance between critique and support, between oversight and collegiality.
In Scotland, where the Scottish Police Authority and Police Scotland were set up at the same time last year, there was considerable upheaval as each organisation asserted its role, responsibilities, and powers.
And the authority will have, as yet undefined, relationships with the Department of Justice, the minister, the Government, and the Oireachtas.
Also to be determined is where the Garda Síochána Ombudsman Commission and the Garda Inspectorate will fit in, either formally under its wing or parallel.
Looking at Northern Ireland and Scotland, the body’s powers should be extensive, including everything from the appointment (and possible removal) of senior officers, regular (and public) meetings with the commissioner and senior officers, community empowerment as well as budgetary, resourcing, and strategy issues.
Whether the authority will have full control over the setting of long-term objectives and policing plans or whether it will share the function with the Government is not yet clear.
Will it set the budgets, recruitment, and resourcing or will the department and the Government have this power? Will pensions and legal issues be among it tasks?
Prof Dermot Walsh, an author on policing and criminal justice, said the authority should “subsume most of the policing functions” held by the department. This would include “recruitment, appointments, education and training, pay, pensions, conditions of service, discipline, complaints, ethics, promotion and uniform”.
He said the authority would provide and maintain buildings and equipment, including vehicles, weapons and surveillance. He said the authority would determine budgets in consultation with the minister and determine annual and strategic plans with the commissioner.
The Irish Council for Civil Liberties said ministerial powers regarding the setting of garda priorities and other issues should be given to the authority and that the authority should report to the Oireachtas committees.
The Irish Human Rights and Equality Commission said the authority should establish policies and procedures of the force and review their operation.
In its submission to the Oireachtas justice committee, it said the authority should “monitor and address” human rights and equality compliance by the Gardaí at every level. It also wants the body to review the standards of training for recruits. It said the authority “should be ensured a stable and sufficient budget over which it has autonomous control”.
It said the body should have full control over the appointment of its own staff. It said the authority should be directly accountable to the Oireachtas, rather than a Government department.
The IHREC said GSOC should be structurally linked to the authority, as should the inspectorate.
The next key issue is who will sit on the board of the authority, and who determines that. The Oireachtas justice committee in its report came down heavily in favour of the Scottish model, not Northern Ireland’s.
The Scottish Authority has 13 members including a chair, mostly drawn from business and consultancy, as well as some local councillors and legal expertise.
The ICCL also favoured the Scottish model, with independent members rather than independent and political members as in the North.
“In line with the approach adopted in Scotland, the ICCL considers it is essential that only persons who genuinely have skills and expertise relevant to the functions of the authority be appointed to it,” the ICCL said in its submission to the justice committee.
It said membership should be drawn from a cross-section of society, including public, private and not-for-profit sectors, with a particular attempt to draw members from vulnerable or disadvantaged groups. It said the political link could be ensured through the Oireachtas committees.
BUT there isn’t clear agreement on this, with Prof Walsh suggesting each political party have a member on the authority as well as one each from a range of interest groups, such as employers, workers, farmers, voluntary sector, youth, elderly, ethnic minorities, religious, social workers, medical professions, lawyers and academia.
Along with the ICCL and the IHREC, the Oireachtas committee said members should be selected through a formal PAS process.
“This would ensure that the people selected for this extremely important and vital role are properly scrutinised as part of a competitive application process, thus ensuring that the most qualified and suitable people are nominated,” said the report.
There can be little doubt the Policing Authority — if it is like the bodies in the North and Scotland — will expose the Garda Commissioner and senior officers to a level of scrutiny, much of it public, it has never undergone, even in the traumatic last year.
The annual reports from the North are very substantial and the reports in Scotland are already detailed. Both bodies carry out inspections and reviews of particular issues, including domestic violence, stop and search powers, compliance with human rights and armed policing.
What will challenge the new authority will be what always challenges such bodies — events, and responding to them. Events, such as the gangland murder of an innocent boy or a particularly savage attack on the elderly.
All the more reason to have someone with experience of the coalface at the helm, such as Ms O’Loan. The chair will need to be backed up by board members with experience and standing in the worlds of human rights, law enforcement, criminal law and business management as well as prominent community representatives, youth leaders and victims groups.
The authority could find itself in the middle of battles between gardaí and the Government, which will be a new development.
This was seen recently in the North following outspoken comments from Chief Constable George Hamilton, who said Department of Justice cuts would force his organisation into a “virtually impossible” position.
The cuts would mean a force “that is unrecognisable”, a service with no preventative capacity and that neighbourhood would be eliminated.
They are comments that are impossible, currently, to imagine coming from the Garda commissioner. But the authority could mean the force will gain a strong, and independent, advocate for resources and policy change as well as an oversight body.
The Policing Authority could herald — if properly resourced — a new approach to policing and crime, informed by analysis, research and dialogue.
Given it is a Policing Authority — not just a Garda authority — the body could have a broad, and exciting, role.
It could bring in bodies like the Irish Youth Justice Service, joint policing committees, community policing fora and drug task forces as well as community bodies and victim groups to give greater priority to understanding, and preventing, crime.
Police boards in other jurisdictions
NORTHERN IRELAND POLICING BOARD
-Context: Established 2001. A child of the Patten Commission and part of the new policing and oversight infrastructure.
-Structure: Given the context, it is a heavily political body. The board is large, with 19 members. Ten are “political members” from the assembly and nine are “independent members”, appointed by justice minister following public appointments recruitment. Chairperson and vice-chairperson are chosen by the board. Operations are directed by a chief executive, assisted by three directors.
-Remit: Hold chief constable and police service to account. Board states that national security and covert policing carried out by the PSNI comes under its remit, although research carried out by the committee on the administration for justice raised concerns about this. The board has set up a group to examine the matter. MI5, which has the lead role on national security, is not under the board’s remit.
SCOTTISH POLICE AUTHORITY
-Context: Est 2013 after Scotland underwent a restructuring with the replacement of eight separate regional police forces with one service and the establishment of the SPA.
-Structure: There are 12 members, all of which go through an independent public appointments process. The final appointment is by the Scottish justice secretary. Membership is far less political than Northern Ireland. The current members comprise a chairman who is a former managing director, two senior business people, three consultants, four local councillors, one crown prosecutor and one former police officer. There is a senior management team of six, led by a chief executive.
-Remit: Hold chief constable and police to account. They appoint senior officers, but chief constable approved by ministers. Although Police Scotland has counter terrorism and intelligence sections, the SPA said national security is a “reserved matter for the UK Government”.
ENGLAND AND WALES
-Context: Situation is complex in England and Wales. Police authorities for each of the individual police services were abolished in 2012 and replaced with directly elected police and crime commissioners (PCCs). In London, the Metropolitan Police Service was put under political control of the mayor and his office for policing and crime.
-Structure: The PCCs are elected locally, although turnouts are low. They are scrutinised by a police and crime panel comprising local councillors. In London, the Met reports to the deputy mayor for policing and crime and his staff.
-Remit: PCCs cover all aspects of policing, including counter-terrorism. They appoint senior officers. Chief constables report directly to Home Office on national security. In London, the chief constable reports to Home Secretary on national matters.
In England and Wales, the intelligence and security committee in London oversees MI5, MI6, and GCHQ.
England, Wales, and Northern Ireland also have Her Majesty’s Inspectorate of Constabulary, an independent body which inspects police forces. Current assessments include the sensitive area of undercover policing.
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