Garda must be freed from control of politicians

OPINION:IN THE abundance of commentary that has followed the Mahon report there has been scarcely more than a reference to the role played – or not played – by the Garda Síochána.

It must be remarkable that over the three decades in which corruption became “endemic”, the national police service appears to have been inert. The tribunal is explicit in criticising the Garda for failing to investigate with any adequacy the allegations, for example, of developer Tom Gilmartin.

The report does not provide an answer as to why this happened. Nor does it recommend any measures to prevent a repetition of such failure. In reality, it lies deep within the power axis that connects police and government in the State.

If Enda Kenny is serious about eradicating corruption in the future, he could start by initiating a review of this relationship. It is outdated, anachronistic and significantly out of step with what happens in other jurisdictions. With the publication of the Mahon report, the head of the Criminal Assets Bureau has reportedly been instructed to assemble a team of officers to review its findings. But why should a police service that is supposedly independent in its operations wait 15 years to have the political “green light” to investigate suspected crime? The Cab has enormous powers to seize what it believes to be ill-gotten gains and it has used those powers widely. Considerable sums have been secured for the State by going after the assets of individuals who are unable to provide proof that their wealth has been acquired lawfully.

Is there any good reason, if these powers and others can be used against drug-dealers, that they cannot be used where there is prima facie evidence of corruption in public life?

Why the apparent inaction over so many years? The reality is that the Garda Síochána has almost always seen itself in a hands-off position regarding the political establishment and, in particular, to whatever party may be in power. A garda would intrude into what has been regarded traditionally as the preserve of the politicians at their peril.

This is not to question the integrity or probity of the force’s management. It is simply to recognise the realpolitik of the relationship that has been fostered over 90 years between the police force and its political masters.

The Garda was established in 1922 as an arm of central government. Its senior officers are appointed by the government of the day. Careers can be made or broken, promotions and preferment can be accorded or denied, depending upon the way the political wind is blowing. But a policing model adopted when the State was struggling for its existence does not necessarily serve the needs of 21st century society. There has long been a requirement for a cordon sanitaire between the politicians and the Garda. Police officers need to have confidence that if they have to examine the conduct of any element of the political establishment, they can do so without fear of consequences for themselves.

Other jurisdictions, such as Northern Ireland, seek to achieve this by the operation of a police authority which stands between the police and the political establishment. The police authority is generally representative of the community. It appoints – and removes – senior officers. It is the first line of account for the management of the police service. It can also act as a bulwark between the police and those holding political power at national level.

The Garda is the only police service in these islands that reports directly, through a minister, to central government, without the application of any “filter” or other safeguard. It is a model that goes back to when Robert Peel and Thomas Drummond established the first Irish police forces. The arrangement, made for simpler times, is at worst susceptible to abuse.

At best it must tend to foster a culture of deference and political compliance. It may work satisfactorily when the minister is trustworthy and righteous, as most of them are. But on at least three occasions the minister with direct control over the Garda was one of those now identified in the pattern of corruption outlined in Mahon.

Who would want to be in the shoes of a Garda officer telling Charles Haughey, Ray Burke or Pádraig Flynn there was an issue of political corruption to be investigated – and would the minister mind answering a few questions? The official line has always been that the Garda is unlike other police forces in that it is also the State’s primary security service. Thus it must remain directly under government control. This is a canard. The State had no difficulty in accepting there should be a Garda authority in the ill-fated Sunningdale pact of 1973. Unhappily, it never came to reality. It is entirely possible to construct a model that would preserve the Garda’s security relationship with government, while providing for the sort of safeguards that should apply when an elected politician is effectively given charge of criminal law enforcement.

The reality is that politicians – of all shades – want to retain direct political control over the Garda. In the run-up to the 2007 general election, the Labour Party, for example, committed itself, if elected, to the establishment of an independent police authority. In 2011, with the certainty of office in sight, that undertaking disappeared.

The sense of political proprietorship of the police runs deep in Leinster House. The tale of the encounter, many years ago, between the late Brian Lenihan snr and a garda who found him on licensed premises “after hours” was more than a funny story. “What will you have, guard?” Lenihan asked, “a pint or a transfer?”

I daresay there are some even today in Leinster House who would ask what was wrong with that?

Conor Brady is a former editor of The Irish Times. He was a founding commissioner of the Garda Ombudsman from 2005 to 2011