Policing Authority’s role in O’Sullivan’s future will be critical

Laws to establish a Policing Authority were first enacted as long ago as 2005 by then minister for justice Michael McDowell.

It took over a decade of promise and procrastination before the authority actually came into being. A new Policing Authority Act in 2015 allowed it to happen.

The new laws ensured the new body was not just a token one, but had real teeth. Any doubts over that were dispelled by the choice of its head, Josephine Feehily, the formidable former chair of the Revenue Commissioners.

In existence for little more than a year, the authority has already flexed its muscles in its oversight role. Last month, on RTÉ, Feehily qualified her confidence in Garda Commissioner Nóirín O’Sullivan, especially in light of the setting up of the Charleton Commission into the allegations of Maurice McCabe.

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‘Flagged our concern’

“I would say we have a degree of confidence, but we are concerned. And I’m not saying that that’s a deep concern at this point. The tribunal hasn’t begun - but we have flagged our concern to the Commissioner,” she said.

This week’s statement from the authority about the breath test scandal was unflinching, and neither the Commissioner nor her force could take many crumbs of comfort from it.

It expressed “disappointment” at not being informed about the situation in a timely manner. It also turned down the request that these matters be referred to the Garda Inspectorate for investigation on grounds that the data supplied by the Garda Síochána was insufficient.

It is clear the authority is unhappy about the volume and quality of information being supplied by gardaí. It has identified gaps, there is an absence of data, and it has not yet been provided with full reports.

It was clear from O’Sullivan’s evidence to the Oireachtas Justice Committee on Thursday that this “oversight” has caused acute embarrassment to the force.

The extent of the authority’s growing powers and influence is now becoming clear. It will undertake, of its own volition, an independent audit of the steps taken by gardaí to resolve the issue over its inflated figures on breath tests, looking to see whether the Garda review of the practice was done properly and in a timely fashion.

Root-and-branch review

It will also advise the Government on the independent investigation agreed by Cabinet on Tuesday, as well as the wider Patten-style root-and-branch review of the entire force.

Feehily met Minister for Justice Frances Fitzgerald on Monday. Her next meeting scheduled with O’Sullivan is a public meeting on the Garda’s roads policing at the end of April, which should focus on the current controversy.

Perhaps the greatest new power of the Authority is provided by Section 10 of the Garda Síochána (Policing Authority) Act 2015.

It is only the Government which has powers to remove a Garda Commissioner from office. It is allowed for one of three stated reasons: if the person has failed to perform the functions of office; is engaged in conduct to bring discredit to the office; or removal from office would be in the best interests of the force.

These three grounds can be widely defined and give any Government ample scope.

It is a reserved function, but a change has been ushered in by Section 10. For the first time, the authority can recommend to the Government the removal of a person who holds the office of commissioner. It can make the recommendation on the same grounds. The Government would have to reject such a far-reaching recommendation from the authority for exceptional reasons.

That said, the authority undoubtedly carries huge sway in relation to the tenability of the Commissioner.

Its role in O’Sullivan’s future will now become critical. It has been closely monitoring her appearance before the Justice Committee and is now heavily involved in a parallel review of the breath test issue.