The steps taken by Minister for Justice Alan Shatter in the Garda whistleblower controversy must be welcomed, for all that they have been timid and slow. The whistleblower episode is merely a symptom of much deeper issues of accountability and transparency in the way the State is policed.
Mr Shatter could have dealt with the penalty points issue (at the lower end of the scale of seriousness among the complaints raised by Sgt Maurice McCabe) by requesting the Garda Síochána Ombudsman Commission (GSOC) to investigate when it first arose.
He has authority under Section 106 of the Garda Síochána Act 2005 to direct GSOC to investigate any “practice or procedure” within the force.
He could also have taken the decision last year, when requested by GSOC, to allow its senior officers access to the Garda Pulse computer system.
Now, we learn, he will allow a Pulse terminal to be operated from GSOC offices on Upper Abbey Street in Dublin for the duration of the penalty-points inquiry. Are we to assume that once the inquiry has been completed the terminal will be removed again?
The Minister has also decided to amend the existing “whistleblower” provisions, shutting down the office of the so-called “confidential recipient” and allowing GSOC to receive complaints from gardaí about gardaí.
Presumably this will exclude minor squabbles over disciplinary matters but will allow GSOC to take on allegations of criminal wrongdoing or abuse. This is sensible and this is how it should have been from the beginning. After all, there are few more likely to have suspicions about a garda engaged in wrongdoing than his or her immediate colleagues.
But giving GSOC access to Pulse – whether temporarily or on an ongoing basis – is a long way off empowering the police oversight body to do its job properly.
Declared objective undermined
The declared objective of the 2005 Act to give GSOC the same powers as the Garda when investigating alleged garda wrongdoing has been gradually circumvented and undermined.
GSOC’s effective role is now largely confined to the investigation of allegations of relatively low-level offences by operational rank-and-file gardaí.
GSOC can deal with an overzealous guard using a baton in a street incident, or a blatant abuse of authority.
But most activity involving serious crime or security issues, instances in which senior officers might feel themselves entitled to bend the rules, and certainly anything touching remotely on the office of the Garda Commissioner, is largely beyond effective GSOC investigation.
When Dermot Ahern introduced the Criminal Justice (Surveillance) Act 2009, it empowered the Garda, the Defence Forces and the Revenue Commissioners to employ covert, electronic surveillance on suspected persons and to present evidence thus secured in court. GSOC was specifically excluded.
The Garda persuaded government that ordinary powers of investigation were insufficient in dealing with modern-day criminals. But the agency supervising the police is expected to do its job relying upon powers that gardaí themselves acknowledge to be insufficient for purpose.
The 2005 Act was fundamentally flawed in that it puts the commissioner beyond the remit of GSOC.
In contrast, the police oversight bodies in Northern Ireland and in Britain have authority to investigate their various chief constables.
This does not simply put the individual who happens to be commissioner off limits for GSOC. It means that every action or file that passes through the commissioner's office, every instruction given from there and every decision taken there in relation to operational matters can be sealed off from GSOC inquiry.
Superficially plausible
Mr Shatter, like other ministers for justice before him, argues that this is necessary because the commissioner is also head of the national security service. This is a superficially plausible but inherently indefensible position. It allows the Garda to duck and dive behind the protective screen of "State security" whenever any embarrassing set of circumstances presents itself. And it means that decision-making at the highest levels in the national police force is effectively beyond independent scrutiny.
It was the invocation of "State security" that largely facilitated the Donegal policing scandals.
Policing and security functions
It would a relatively simple matter to separate the c
ommissioner’s policing and security functions. In fact the 2005 Act provides a complex mechanism, involving judicial oversight, for doing so in relation to certain investigations, although it has never been implemented.
In such an arrangement, GSOC could have oversight of the commissioner’s civic policing role (as in Northern Ireland and Britain) while alternative arrangements could be made for oversight of his security role.
For example, in Britain the heads of MI5 and MI6 report to the intelligence and security committee at Westminster. (In effect, the Garda Commissioner reports to no-one outside the Department of Justice on his stewardship as head of national security.)
If the Minister and the Government were serious about bringing transparency and accountability to An Garda Síochána, these are the sort of measures that should be under active consideration.
Sgt McCabe and former Garda John Wilson were, in effect, thrown to the wolves and subjected to vile threats and slurs from so-called colleagues.
The reputation of the force itself has been damaged and senior officers have been placed in invidious positions.
Attending to the symptoms, as the Minister has belatedly undertaken to do, is better than nothing. But it is a long way short of the real reform that is required.
Conor Brady was a member of the Garda Síochána Ombudsman Commission from 2005 to 2011. He is a former editor of The Irish Times