Informed debate required on future model for policing control

The Government’s intention to appoint a commission of investigation into – among other things – allegations regarding “ongoing legal proceedings in a particular case” is disturbing in its implications.

This is, by any understanding, a "gubu" turn of events, and the issues are grave and concerning. Some in the Law Library are predicting the legal system is going to be thrown into chaos, with convicted criminals walking free. Similarly, innocents may have been convicted because information was critically withheld.

Let’s be very clear – if there was some sort of black operation in place to record telephone calls and to subvert the course of justice, those concerned should be dealt with under the law.

However, if it’s a fact that a piece of technology was acquired through public tender which had the unintended but collateral effect of recording privileged communication that smacks of incompetence but falls far short of a criminal conspiracy.

The word dysfunctional has been used widely to describe the Garda, the Department of Justice and the Minister, and one understands the reasons for that label.

On balance, though, the decision to peremptorily announce a commission of investigation in the immediate context of the Dáil debate on penalty points and Minister for Justice Alan Shatter may well have added to, rather than reduced, the sense of chaos. Was there an absolute need to make this announcement on that very day?

A discussion had been emerging on new forms of control and accountability for the Garda Síochána, and specifically the adoption of the policing board structure in use in the North. This has now been given added impetus.

Disastrous results
On a more philosophical point, it is reasonable to conclude that politicians are often seduced by the notion of the control of policing. This relationship has often had disastrous results, such as with the RUC. Nevertheless, we cannot have a self-governing, unaccountable policing model and so a model is required which balances competing principles.

There are obvious dangers for democracy and civil rights in awarding power to uncaring and self-perpetuating institutions, whether government or police. Striking the balance is the acid test.

Fragmentation minimises police power and is very inefficient. In this model, radical or opinionated leaders have minimal impact. Government prefers this model, even though, publicly, it might express a different view.

The opposite model is one of strong police central control and direction. This model needs strong oversight to succeed. Axiomatically, these leaders must have professionalism, integrity and limited tenure.

Currently, the triumvirate of Minister for Justice, departmental secretary general and the Garda Commissioner is the power axis. This axis has remained virtually unchanged since the foundation of the State and, in that time, five commissioners have left office in troubled circumstances.

The most powerful figure in the current power axis is the secretary general. This office is invisible and does not address itself to public scrutiny. Indeed, by virtue of some of the provisions of the Garda Act 2005, political control of the Garda has developed to an unhealthy degree. Similarly, the dual ministerial responsibility for justice and defence is an unhealthy concentration of power.

Nevertheless, I believe there is a logical exception to the principle of creating distance between the Minister and the commissioner. This relates to State security. A formula can be found which allows for a very significant distance in terms of ordinary policing services but which allows for a continuing relationship for State security.

It is axiomatic that a new system of control and accountability is required. The Northern Ireland Policing Board deserves close examination. The chief constable has to report to the board on a regular basis and in accordance with clear parameters of performance. The board has a responsibility to promote the policing function and to negotiate its annual budget. So, at least this relationship seems to be open and accountable and mutually supportive and in the best interests of the community. However, it is also interesting to note that the North's Minister for Justice is at variance with the board on the rules for the appointment of the next chief constable.

An informed debate is now required on the future model for policing control and accountability and the political control of the policing function. Policing is a noble function, and it is a privilege to serve the community. This ethos needs to be at the centre of the narrative.

John O'Brien is a retired detective chief superintendent, former special adviser to the Garda Ombudsman Commission and one of the authors of a critique of the Smithwick Tribunal report