Radical reform of Garda oversight could be simple, but it remains unlikely

If the Garda Síochána were a business and an employee was able to identify widespread waste, neglect, inefficiency and loss of revenue, what would happen?

One might expect an accolade, a sizeable bonus – promotion, indeed. But Garda Sgt Maurice McCabe will wait a long time before any commissioner promotes him to inspector. He has failed the ultimate test for advancement in the Garda Síochána. He did not keep quiet.

The “consistent and widespread” misuse of the penalty points system, revealed in the report of the Garda Síochána Inspectorate, is arguably the least serious of the many questions that have to be faced concerning the role and operation of the police force.

After successive Garda crises and scandals from the 1970s on, the Morris tribunal warned that the Garda was at risk of “losing its character as a disciplined force”. The Garda Síochána Act 2005 that followed heralded what was to be a new era. There would be higher standards, improved efficiencies, thorough accountability and zero tolerance of malpractice.

There have been some improvements. The advent of the Garda Síochána Ombudsman Commission (GSOC) has reduced instances of improper use of force and petty abuse of authority by gardaí at the public interface. The District Policing Partnerships appear to be working well.

At the more fundamental level, though, the legislation is failing to achieve its declared purposes.

Self-protection
The mechanisms provided in the 2005 Act are not sufficiently robust to counter the culture of self-protection and denial that is inherent in law-enforcement agencies and that has flourished within the Garda Síochána.

The misuse of the penalty points system, the widespread failures in duty reported by Sgt McCabe, the breakdown in relations between the GSOC and Garda management, the GSOC’s suspicion of Garda bugging, the Kieran Boylan case, all go to form a picture of an organisation under stress.

A huge volume of good work is done by individual gardaí, frequently at risk to their own safety but, organisationally, the force is failing to measure up to 21st-century expectations of accountability and candour.

The provisions of the
2005 Act might appear to provide stringent performance measures. Detailed reporting requirements are set out for the commissioner but, unlike every other police chief in these islands, he does not report to an independent board or authority. He reports to the Minister and Department of Justice.

When the GSOC was first proposed, it was to have the same powers as the Police Ombudsman for Northern Ireland – but, ludicrously, the Garda Commissioner was put beyond its remit. Any issue that might have a bearing on “State security” was put off limits. And the “whistleblowing” provisions are such that for any garda to have used them was tantamount to career suicide.

The Garda Inspectorate, now thrust into the limelight, had been promulgated as the counterpart to the Inspectorate of Constabulary in the United Kingdom. However, it is essentially an advisory body, most of whose salient recommendations have been ignored.

That the chief inspector, Bob Olson, could state in a Sunday newspaper that he had never actually met Alan Shatter is testimony to the influence it is accorded within the justice structure.

Real control
What the 2005 Act delivered was a veneer of reform; the appearance of a new accountability but without the substance. It is a formula much beloved of Irish officialdom and of the traditional political establishment. It enables ministers and senior civil servants to tick the boxes when international comparisons are being made but without having to relinquish real control.

If the Oireachtas Committee on Justice is serious about fundamental reform of the Garda Síochána, it will recommend the dismantling of certain elements of the 2005 Act and the introduction of some radical new ones.

Some form of independent authority or protection must be put in place to regulate the relationship between the Commissioner and the Minister. Significantly, the 2005 Act provided for the establishment of a six-person Garda Management Board that would include three non-Garda members. It never happened. All Alan Shatter has to do is announce a commencement date.

The GSOC’s remit must be extended to take in the Garda Commissioner, his office and his immediate staff. The complex provisions set down in the Act to prevent the GSOC intruding into areas of “State security” should be reduced to a simple test or arbitration by a senior judge. Access by the GSOC to all Garda information sources should be the norm. The withholding of information should be the exception.

GSOC resources must be freed up to enable it to complete serious investigations more speedily. Its case load is enormous and will probably increase once serving gardaí are permitted to make complaints to it.

A simple way of increasing its operational capacity would be to revise the existing arrangements for the informal resolution of minor complaints. The Act provides that these may be disposed of by informal resolution or mediation, provided that the complainant and the garda involved agree to the process.

Gardaí, though, have been notably unwilling to participate. In Northern Ireland and in Britain, police officers have no such option. Whether an officer likes it or not, a complaint may be resolved informally if his superiors or the Independent Police Complaints Commission so decide.

In most cases this may amount to a simple expression of regret to a complainant on behalf of the force or, indeed, a rejection of the complaint where a supervising officer has been satisfied that is groundless.

Anomalies
There are other infirmities and anomalies in the Act that the Oireachtas committee members will doubtless identify.

It should, for example, be mandatory for the commissioner to open disciplinary proceedings against a garda where the GSOC recommends it. At present, he has no such obligation.

At the end of this process, it will be down to Government to legislate for change. We should not be too hopeful.

It suits them – whoever is in office – to control the police. The promises and protests that rise from the Opposition benches are usually forgotten when their occupants become ministers.

Conor Brady, a former editor of The Irish Times , was nominated by the government to be a founding commissioner of the Garda Síochána Ombudsman Commission (2005 -2011).