Dr Vicky Conway, Lecturer in Law, Dublin City University,
It has indeed been a difficult time for the justice system, with seemingly no quarter emerging unscathed. I was lucky enough to move back to Ireland three weeks ago today and, in that short time, I’ve had numerous opportunities to engage with individuals and organisations working hard to make a contribution to our justice system. It’s inspiring and encouraging to encounter such people, but all too often their motivations are heart-breaking stories of people let down by our State.
Too regularly in my work, I am contacted by people claiming to have suffered greatly due to our justice system. I’ve spoken recently with the families of both Shane Touhy and Shane Farrell. Both of these families lost a loved one (with no suggestion that this was the hands of the State, I should add). Both families are distraught by the State investigations into these deaths, which have resulted in no convictions for the deaths. They feel that, rather than helping, the justice system has caused them even more suffering.
I cannot comment on the veracity of any claims they make, but I can say families who have suffered, as these families have, should not have to fight as they are fighting to seek justice, to understand what happened, or to be heard. They have encountered bureaucracy and regulations that have not operated to assist them and they have encountered attitudes of defensiveness and secrecy which have left them feeling isolated and traumatised.
I was struck recently by a comment by Brian Sheehan of GLEN, that their strategic approach to LGBT equality was ‘change the laws, change the culture, change the lived experiences’. This equally applies to policing. We want ultimately to change the lived experience of policing, changing how the public experience their interactions with gardaí, how those who work with gardaí day-to-day experience those encounters, but also the lived experience of being a garda in Ireland. Those experiences will never be consistently perfect, and reforms must be an ongoing process of reflection and change, but aiming to improve those experiences is a tangible way of conceptualising reform.
The first step is to change the laws. Legislative change should ensure that we have a policing system which is appropriately empowered to perform its functions, required to do so in a way which respects the human rights of all, a system that is well governed and accountable and which is required to be open and engaging in its work with others. Significant and positive changes are coming, with the Victims of Crime Bill, changes to GSOC’s powers and the Policing Authority.
We need to get those changes right on paper, though that won’t always be enough. I have argued, for instance, that GSOC has great potential on paper but because of cultural problems, it is not living up to that potential. Changing culture in any organisation is difficult; changing it in a police service is a monumental undertaking.
My research leads me to believe that committed leadership, stronger accountability and de-politicisation, as well as eradicating the legacy of weaknesses in these areas, are central to achieving these cultural changes in an Garda Síochána.
The plans for reform are multi-faceted but given both its significance, and the restrictions on time, I will focus on one element: the creation of the Policing Authority and its potential contribution to the de-politicisation of policing.
The Policing Authority
Announced in the middle of last year, with a promise that it would be in place by the end of 2014, the legislation has now passed through the Seanad. It won’t be enacted until next autumn. While this seems like delay, it may in fact provide much needed time for reflection. As I will argue in this talk, the current proposals do not provide the necessary changes to the rules in order to effect changes to culture and lived experiences.
So what is this body is supposed to do? At a conference last year the Minister stated that it will:
“bring a new layer of public accountability and transparency to the administration and oversight of policing in this State… It will be set up as a pillar of integrity which will, I believe, greatly reinforce public confidence in the working of our police services.” 
This is an encouraging aspiration but I’m going to now argue that we need this body to be more than a new layer of accountability and transparency, that we need it to assume real power over policing.
Why do we need it?
People respond differently to matters of crime and public order depending on their politics and the fear that these matters create rightly brings them to the forefront of many national debates. Policing is political, with a big P and a little p. The concern I have is when those politics influence how the police conduct themselves. This can happen in a number of different ways, on something of a scale, which should be borne in mind when contemplating reform:
These are all different ways in which politics can influence policing, not all of which are always immediately apparent. The third, to my mind, is one that we in Ireland should be concerned about. It is difficult to spot, less easy to establish but, through separation of powers, quite avoidable.
The need for the police to remain apolitical was highlighted by Minister for Justice Kevin O’Higgins, addressing early members in 1926:
“The internal politics and political controversies of the country are not your concern. You will serve, with the same imperturbable discipline and with increasing efficiency, any Government which has the support of the majority of the people’s elected representatives. Party will, no doubt, succeed party in the ebb and flow of political tide. New issues will arise and the landmarks of today will disappear, but you will remain steadfast and devoted in the service of the people, and of any government which it may please the people to return to power.” 
This message was no doubt born of a fear that, in the turbulent times following independence and civil war, the police force would be politically overrun, and that the fledgling government would lose capacity to maintain law and order. Indeed, just 5 years later, this fear would seem justified, when Eoin O’Duffy was dismissed from the post of Commissioner and went on to lead the Blueshirts.
This fear shaped Irish policing in practical and lasting ways, in the vesting of immense power over the police in government. This is unusual in Western democracies, though quite common for states emerging from transition where concerns as to the loyalty of the police and the stability of order are commonplace. What is perhaps strange is that, not only has the Irish government’s control of policing not lessened as challenges to the stability of the State have waned, but that control has in fact been enhanced. The 2005 Act legislatively enshrined the Commissioner’s accountability to the Minister and it gave the government the power to demand any document relating to any investigation. The governance system of the police in Ireland makes it possible for any of the above forms of political interference to occur. Government has the legislative power to exercise both passive and active control over policing. Added to this, we know little about how and when these powers are exercised because it happens behind closed doors, evidenced by the fact that a Commission is required to establish the circumstances of Commissioner Callinan’s departure.
A Policing Authority which assumes governance responsibilities for policing could disrupt that pattern of influence. It could assist in depoliticising policing and in making its governance more open and transparent. It would provide a form of separation of powers.
The original heads of the Policing Authority Bill were encouraging in this regard. That version transferred many key government powers to the Authority, including holding the Commissioner to account, ensuring Garda resources were used to “maintain the highest levels of efficiency and effectiveness” as well as monitoring garda compliance with human rights. Unfortunately, by the time the Bill was presented to the Seanad, these powerful sections had been deleted. Rather than achieving de-politicisation and a necessary separation of powers over policing, we instead will get an added layer of bureaucracy, something that serves only to make the governance of policing more unwieldy and complicated.
How does the proposed legislation maintain political control of policing? The following is a list of all the powers retained by either the Minister or the Government over policing. Many of these can be individually justified, but I want to consider the totality of these, to demonstrate the scale of control that remains centrally vested:
It is the combination of these factors that is problematic: the sum total is a situation where the government continues to have too much control over policing.
What powers, then, is the government relinquishing? Government will no longer:
There are, of course, additional functions that the Authority will have, like holding public meetings with the Commissioner, but these are added elements to the governance of an Garda Síochána. The Minister and Government will continue to have effective control over policing in Ireland.
Why maintain the stronghold?
The reason cited by government for the turnaround on powers transferred to the Authority, is Article 28.2 of the Constitution: “The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.”
I don’t have time to explore the complexity of this provision but I’ll make some brief points, in the hope of beginning that very necessary conversation.
Only a small number of matters are explicitly stated in the Constitution to be executive functions but the courts have agreed there are other implicit executive powers. There’s little case law to aid this interpretation, very little of which specifically discusses policing. So whether or not, or the extent to which, policing falls within art 28 is unclear.
Examination of the legal status of both individual gardaí and the Commissioner presents problems for fitting their functions within Art 28. The fact that individual gardaí have wide and discretionary powers to interfere with constitutional rights, and that they can’t be directed on when or if they should use those powers, seems to be me to be incompatible with a claim that theirs is an executive function. The function of the Commissioner is defined as “to direct and control an Garda Síochána and to advise the Minister on policing and security matters.”  Ministers have repeatedly declined to accept responsibility for decisions of the Commissioner, as policies and practices are for the Commissioner to decide. The Minister’s role is to hold the Commissioner to account for doing these jobs, not to have a hand in how they do them. Again, that is a powerful role in itself, which is also not compatible with the characterisation as an implicit executive function under article 28.
Given the legal status of both the Commissioner and individual gardaí, it is difficult to conclude that policing is an executive function. What we perhaps can agree on is that the security of the State is an executive function. In debates in the Seanad this has been the argument made by Minister Fitzgerald and Minister O’Riordáin, that because an Garda Síochána is the security service of the State then it’s work falls within article 28. But even if we accept that national security is an executive matter, it doesn’t follow that every single one of the controls that Government seeks to retain is an executive function. Immigration is an executive function but that doesn’t mean that all the relevant controls and powers are exercised by Government.
We need, to my mind, to tease out more clearly the implications for police governance, of classifying state security as an executive function. I don’t believe, for instance, that it automatically holds that because national security is an executive function, policing strategies can only be approved by government. This is a complex extension of a constitutional provision and it’s certainly one that should be explored very carefully before being used to prevent the de-politicisation of policing.
What are the options?
Even if we do accept the executive status of state security, what is being proposed is not necessarily the only option. A number of possibilities exist:
If the Policing Authority legislation is enacted as it stands it will not be able to contribute to any substantive reform of policing in Ireland. It will instead represent another layer of bureaucracy; another body to discuss policing while the Minister and the Commissioner retain all core power over policing. It will not break the cycle we have found ourselves in of scandal, reform, scandal. We should, I feel, be very concerned at untested constitutional arguments being used as the reason for this limited reform. These are not, to my mind, the kind of changes to laws that will lead to changes in culture and changes in lived experiences. These are not the kind of changes that will give those who feel let down, or even victimised, by the criminal justice system, confidence that others will not have such experiences. That should worry us; it worries me.
 Speech to Law Society Conference, 11 October 2014.
 O’Higgins, Kevin, quoted in Christmas Message, Garda Review, Vol 111, No 1, December 1926 p.3
 S.26, Garda Síochána Act 2005
 See Murphy v Dublin Corporation  IR 215
 S.26 Garda Síochána Act 2005.
 Walsh, The Irish Police (1999), Chapter 5.
 Case law on immigration would support this conclusion.