John O’Brien: New policing authority lacks independence and scope

The independent Policing Authority, which will oversee the performance of An Garda Síochána, came into operation on January 1st.

The Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015, which legally provides for the authority, is designed to bring greater oversight and transparency into normal policing matters and was a response in part to series of tribunal reports critical of the force.

Speaking on Morning Ireland last September, Vicky Conway, a law lecturer at Dublin City University and recently appointed authority member, said "the policing authority will absolutely not solve the issues seen in the Fennelly report". Indeed, she was quoted in other media sources saying proposals were watered down and the process of appointments to the authority was political.

She appears to be correct.

The Public Appointments Service (PAS), which processed the appointments to the authority, was obliged to follow a more restrictive process than that which it followed in the case of the appointment of Emily Logan as chief commissioner of the Irish Human Rights and Equality Commission. That competition was conducted in an open, transparent and independent fashion because the rules allowed for that approach.

The assessment panel set up by the PAS produced a shortlist of 17 people. It was chaired by Kevin Rafter, associate professor of political communication at DCU.

The panel did not have policing expertise. It was advised: “In considering whether to recommend a person for appointment by the Government, the service shall have regard to the desirability that (i) at least one of the members of the authority should be a person who has experience of service as a senior officer in the police service of another state.”

The prevailing paradigm is that foreign policing expertise is good and domestic is mildly toxic. We really should get over this inferiority complex.

These names were provided to the Minister, who then selected the eight members of the authority from that number.

The original scheme for the authority was broad and ambitious but these powers have now been considerably watered down.

Can the authority negotiate the budget for the Garda? Obviously not.

Can it approve policing plans? Only with the minister for justice’s approval.

Can it appoint the Garda commissioner and deputy commissioner? No – absolutely not.

Will it decide on the optimum number of gardaí required to provide a policing service? No.

In effect it appears many functions that previously were the minister’s direct responsibility have been outsourced to the authority but with a clawback retained by the minister in respect of a contested decision.

The minister may issue written directives to the authority concerning any matter relating to the policing service. The government may refuse the the nomination of a new Garda commissioner by the authority.

Similarly, ministerial approval is required for the setting up of priorities and the drafting of strategy statements. This approval theme is a constant throughout the legislation.

Does this model of a policing authority find a peer in any relevant jurisdiction? No, it does not.

All comparable authorities have budgetary responsibility along with the hiring and firing of chief officers as well as many other extraneous functions.

In Northern Ireland the draft annual budget for the Police Service of Northern Ireland is prepared on behalf of the chief constable by the force's finance department and submitted to the Northern Ireland Policing Board for consideration. The draft budget is then submitted to the Department of Justice.

The Scottish Police Authority exercises direct budgetary control of policing. In simple terms the budget size determines policing numbers and resources.

The debate on a policing authority has been around since the Conroy Commission reported in 1970 that there was evidence of an unclear division of roles between the Department of Justice and the Garda.

The departure of three Garda commissioners in unhappy circumstances underlines this tension.

No member appointed to the authority had walked in harm’s way in this jurisdiction. One is entitled to believe that the cumulative experience of 90 years providing a policing service by the Garda to the Republic would at least have found some expression in the overall process.

The individuals appointed to the authority are people with a proven track record in their respective fields and in two respects they are from different jurisdictions.

However, whatever their qualities, they will face an uphill battle when their authority does not meet the objective expectations for such a group. Regrettably it is doubtful that anyone will feel more secure or better protected as a result of this initiative.

Perhaps cynically, one is left to wonder what was the point of this exercise? Frankly, if the Government did not want to concede control of policing it should have continued the present system. There is a real possibility that another bureaucratic layer has been introduced that flies in the face of a rational governance model.

John O’Brien is a police and security specialist and a former detective chief superintendent