POLICING CANNOT BE ADDRESSED WITH AD HOC PIECEMEAL MEASURES
Prof Dermot Walsh, Kent Law School, University of Kent.
Policing is a unique and vital public service that is not suited to the normal constraints and requirements of political governance. Its pivotal role in the judicial law enforcement process, coupled with the immense powers of each police officer over the life, liberty, property and privacy of every individual, are such that it cannot safely be left to the direct control of central government. Exposing the police to the conventional processes and procedures of central government invites the risk of political interference in decision-making in the criminal process. Equally it facilitates the deployment of the full force of police power and resources by powerful political and economic interests against those individuals and minorities they perceive as a threat. On the other hand, insulating the police against the scrutiny of the democratically elected government runs the risk of fuelling a police state in which the police are free to use their immense powers and resources to pursue their own political and sectional agendas. This provides the opportunity for even more sinister and secretive forces to use the police as a tool to further their own interests at the expense of society as a whole.
There is no perfect, or even ideal, solution to these tensions in police governance. The aim must be to strike a practical and principled compromise in which the police can deliver their vital public service functions in an environment where they are protected against being used as a tool of powerful elites, while remaining effectively accountable to all of the publics they serve. In many democracies based on the rule of law, this practical and principled compromise has entailed the sharing of police governance among several bodies, two of which are the police and central government. The others (or other, depending on jurisdiction) are: a police authority, the central prosecutor, local authorities etc.
In my view, Ireland is probably best suited to a tri-partite arrangement in which the third body is a Police Authority which sits above the police and parallel to central government. In this arrangement, I envisage the Police Authority playing the instrumental role in protecting the police against sectional political direction, while at the same time ensuring that the police are transparently accountable to the public for the quality of service they deliver. In effect, it will subsume most of the policing functions currently vested in central government generally, and the Minister for Justice in particular. It will also have further powers and functions: it must establish and maintain a professional, human rights compliant, transparent, efficient, effective and accountable police service; it must oversee compliance with best international practice in the standards of recruitment, education and training, appointments, promotion and accountability; it must provide human rights compliant equipment and exercise close scrutiny over the use of weapons; it must closely supervise the exercise of police powers and the quality of police performance; and it must give advice, leadership and direction to the police on operational policies, priorities, strategies and practices. The capacity of the Police Authority to deliver on these matters will depend very heavily on it being established with the necessary independence, powers and personnel to take a robust, hands-on approach to the discharge of its role. I have outlined below what I consider to be essential in this context. If I had to emphasise one concept that should inform these components and the contribution of a Police Authority as a whole it would be transparency. A Police Authority must deliver maximum transparency in policing otherwise it is not worth the effort.
Before outlining the essential components, it must be acknowledged that the current Garda State security role is problematic. In my view the Garda should be a purely civil police service, and this State security function should be transferred to another body (the status, remit, composition, accountability etc of which is another day’s work). The proposals outlined below are framed on the basis that the State security role will be transferred from the Garda. Even if it is not so transferred, the essence of my recommendations remains the same. However, I do accept that the retention of a Garda State security function will entail some limitation on the powers and functions of the Authority (and a correlative increase in the Minister’s input) in situations where State security issues are in play.
- To ensure the delivery of an efficient, effective, human rights compliant, ethical and transparent police service;
- to render the Garda accountable for their policies, practices, strategies and performance;
- to act as a buffer against direct political involvement in policing policies, practices, strategies, operations and performance
- to render the Garda responsive to community needs and circumstances and human rights principles
Powers and functions
- Appointment of all officers of Commissioner rank by open competition, after consultation with the Minister for Justice (ultimate decision to be that of the Authority).
- This shall extend to the power of removal for just cause and subject to compliance with fair procedures
- The power of appointment and removal over all other members should vest in the Commissioner, subject to standards and procedures set and overseen by the Authority
- To discharge the regulatory functions with respect to the Garda that are currently vested in the Minister – including: recruitment, appointments, education and training, pay, pensions, conditions of service, discipline, complaints, ethics, promotion, uniform etc.
- In addition to regulations on education and training, it is vital that the Authority should exercise close direction and oversight over the structure, contents, standards and delivery of education and training for both recruits and professional development
- To provide and maintain buildings and equipment in consultation with the Commissioner
- This must include control over the type and range of vehicles, weapons, surveillance devices, IT technologies etc to be available for use by gardai
- To determine Garda estimates and budget in consultation with the Minister
- To determine annual and strategic Garda plans in consultation with the Commissioner
- To approve (at least annually and as the need arises) Garda policies, priorities and strategies in consultation with the Commissioner
- This must include operational policies
- Day to day operational decisions, and the management of an individual law enforcement etc operation, must remain the preserve of the Commissioner; but she will be accountable to the Authority for decisions made, and for performance and outcomes with respect to them
- To require a report from the Commissioner at any time on any matter concerning the Garda, the policing of the State or EU/international police cooperation. This is a critical power as it will play a vital role not just in delivering accountability, but also in replacing the current role of the Minister for Justice as a conduit for information on the Garda and policing via Dail questions.
- This must include reports on individual operations that have given rise to concern among the public or a section of the public
- Restrictions (eg. to protect the integrity of an ongoing critical investigation, etc) to be strictly limited and defined
- To require annual reports from the Commissioner on the discharge of Garda functions, Garda performance , the management of the Garda organisation, the policing of the State and cross-border police cooperation in Ireland, the EU and internationally
- This must include the power to call for general reports for time to time as the need arises
- To require periodic information on crime and the exercise of Garda powers. Again, this will be a vitally important power to replace the current role of the Minister for Justice in acting as a conduit for such information via the Dail question. It must ensure the provision of extensive and detailed information on crime and the exercise of Garda powers – areas that are grossly undeveloped in terms of data coverage and transparency in this country. The material must be published regularly by the Authority
- It is vital that this power extends to the exercise of Garda powers from stop, through arrest, detention, entry, search, surveillance etc. It is essential in any democracy based on the rule of law that this data should be publicly available alongside published information on Garda policies on the exercise of these powers.
- The publication of crime data (currently published through the CSO) needs to be radically revamped to make it much more comprehensive, detailed and meaningful. It needs to range from data on crime reported/unreported and detected right to final disposal in the courts, including detailed data on steps in the criminal process en route, all broken down on the basis of age, gender, location etc
- To keep under review trends in complaints against the Garda and how they are resolved (see below under relationship with GSOC)
- The Authority should pay particular attention to underlying trends and issues that are giving rise to public concern or which may reveal weaknesses in Garda policies, practices, priorities, strategies, management etc. with a view to exploring the need for remedial action and taking such action where necessary
- To establish an independent inquiry into any aspect of policing or the Garda which is giving rise to public concern.
- The Authority shall appoint a suitably qualified independent chairperson who shall have the power to summon witnesses and to compel the production of documents, subject to limited and strictly defined exceptions
- Witnesses shall be generally obliged to answer questions on oath and must submit documents
- The sittings shall be in public or private as determined by the chairperson
- The inquiry shall report to the Authority which shall normally publish the report
- To hold monthly meetings with the Commissioner etc to discuss matters concerning the Garda and policing from an accountability perspective. The Commissioner and his/her colleagues will be expected to respond to questions and matters raised both orally and, where requested, through the provision of documentation. Restrictions (e.g. need to protect ongoing criminal investigations, legal privilege etc) should be strictly limited and defined. The Authority will be expected to convey their concerns (and satisfaction) over Garda policies, practices, performance etc. The Authority will also be expected to respond to Garda concerns over Authority decisions and performance on matters within its remit (budget, appointments, policies, standards, training and education etc)
- To hold quarterly meetings of the type outlined above which are open to the public. These quarterly meetings should be held at different locations around the country from time to time.
- To hold an annual public meeting (attended by the Authority members and the Commissioner etc) to listen to and to respond to issues raised concerning the Garda, policing and its own performance as an Authority.
- Composition is absolutely vital to the success of the Police Authority. It must have some link to democratically elected representatives, without being a reflection of the Dail. It must have a broad degree of representativeness without being too large or elected. It must have academic (policing/criminal justice) and regulatory expertise on it without being a body of academic and/or administrative experts. Most critical of all is the calibre of members appointed to it. They must be able, willing and committed to contribute their own brand of knowledge and experience to the common enterprise of a professional, human rights compliant, transparent, efficient, effective and accountable police service. I would suggest that it should be broadly representative of a range of interest groups and experts: e.g. – one member from each of the main political parties (including Sinn Fein) and independents; one from each of a range of interest groups such as employers/business, workers/unemployed, farmers, voluntary sector, youth, elderly, immigrants/ethnic minorities, religious, social workers, medical profession, lawyers and academia. The appointees should reflect gender balance.
- The choice of chairperson is critical. It needs to be someone who can combine expertise in policy/public sector management with a strong reputation for independence, vision and balance. It needs to be a leader who can bring disparate factions/interests together in a common goal; someone who can articulate vision and communicate effectively with disparate political, socio-economic and vested interest groups. A public profile would be helpful but not essential. Expertise in policing/criminal justice would be helpful but not essential.
- The chairperson should be a salaried full-time appointment. Members should be salaried part-time appointments.
- Members should be appointed by the Oireachtas following a public invitation of expressions of interest. The process to be handled by an appropriate Oireachtas Committee (preferably not Justice). The term of appointment should be four years renewable once on a staggered basis (i.e. first half of the appointees should be for two years in the initial round of appointments). A member can be removed by a majority vote in each House of the Oireachtas, but only for gross misconduct.
Status and structure
- The Authority should be established as a single body with legal personality just like the Policing Board in NI. It should be statutorily independent in the discharge of its functions – comparable to the Irish Human Rights Commission.
- It should have the power to establish sub-committees and delegate specified functions to sub-committees.
Relationship with Ombudsman Commission
- As noted above, the Authority should keep under review trends in complaints against the Garda and how they are resolved. To this end they should receive regular reports from the GSOC on complaints (broken down into relevant categories), how those complaints are dealt with and outcomes. The Authority should meet regularly with GSOC to keep itself informed on trends in the incidence and contents of complaints and in their investigation and disposal. A primary purpose of these reports and meetings will be to identify (in conjunction with GSOC) factors that are generating complaints and/or impeding their efficient, satisfactory and fair disposal, and to take necessary measures (within its competence) to address them (e.g. a change in some aspect of Garda policy or practice, a change in some aspects of Garda education and training etc). Where the need for remedial action beyond the competence of the Authority is identified, it will have a duty to bring the matter to the attention of the competent body with appropriate recommendations for action.
- There is a broader issue of whether the Minister’s current powers and functions with respect to GSOC should vest in the Authority. As a general principle, the Minister’s powers and functions should transfer, but there may be a separate need to reconsider the appropriateness of some of those powers/functions.
Relationship with Inspectorate
- The Authority must have the power to request the Garda Inspectorate to conduct an inquiry into any aspect of the efficiency and/or effectiveness of the Garda and its performance. The Inspectorate should be obliged to comply with such a request in the absence of reasonable grounds to decline. The Inspectorate’s report consequent on such an inquiry should be submitted to the Authority and should normally be published.
- The Authority should meet regularly with the Inspectorate to keep itself informed on the progress, contents and results of Inspectorate inquiries (not just those requested by the Authority)
- The Minister’s current powers and functions with respect to the Inspectorate should be vested in the Authority
Relationship with Local Joint Policing Committees
- The Police Authority should maintain a dialogue with the local Committees, inviting and considering their view on local policing issues.
- The Authority should subsume the powers and functions of the Minister with respect to the local Committees
- The Authority should host an annual meeting with the local committees to discuss issues of common interest and how they might be addressed.
Accountability of the Police Authority
- The Authority should submit an annual report to the Oireachtas on the state of the Garda and the policing of the State. This report must also address its own performance in the exercise of its powers and discharge of its functions.
- The annual report should be debated in the Dail and in the Seanad
- The Authority chairperson etc should appear before the Joint Committee on Justice etc every year to be questioned on the report and related matters. This is without prejudice to an appearance before any other committee, such as PAC.
The Broader Context
I would like to take this opportunity to make a separate, albeit related, point. The problems currently associated with policing in this country cannot be addressed satisfactorily by ad hoc, piecemeal measures such as the establishment of a Police Authority, tinkering with the complaints procedure, a succession of judicial inquiries etc. What is needed is a comprehensive, considered, evidence-based and forward-looking inquiry into all aspects of policing in this country, ranging from what the public (and sections of the public) need and want from policing, through police powers and procedures to all aspects of police structure, organisation, methods governance and accountability. The object must be to define a vision for Irish policing for the next fifty years, and to identify the joined up reforms that will be necessary to deliver on that vision; all bench-marked against international best practice relevant to a common law democracy based on the rule of law situated firmly within the EU and in an increasingly diverse and globalised society.
The Patten Commission on the reform of policing in Northern Ireland provides a useful blueprint. The inquiry should be carried out by a Commission of experts embracing: senior police officers from other jurisdictions with a reputation for vision and commitment to community based policing; academics in policing/criminal justice; representatives from the legal, medical and social work professions; and representatives from the business and economically and socially deprived communities. The Commission should commission independent research on relevant subjects, conduct hearings in all parts of the community (e.g. in community centres in social housing areas), conduct focus group meetings across a wide range of expert and non-expert groups; and examine policing in other comparable jurisdictions abroad. Its object should be to produce a report setting out a reasoned road map for comprehensive police reform, written and presented in an accessible style for the average lay person. The task for government should be to debate that road map thoroughly in the Oireachtas and to implement it in its entirety subject only to reasoned changes to reflect the Oireachtas debate.