The Policing, Security and Community Safety Act 2024 was due to have been commenced today. This legislation was signed into law by President Michael D Higgins last February to implement the recommendations of the Commission on the Future of Policing in Ireland, which were adopted by government in 2018. The effect of commencing this legislation would be to bring into existence a new statutory board of An Garda Síochána, a new Policing and Community Safety Authority (replacing the Policing Authority and Garda Síochána Inspectorate), a new policing complaints mechanism, Fiosrú (replacing the Garda Síochána Ombudsman Commission [GSOC]) and a brand new Independent Examiner of Security Legislation.
Although announced by Minister for Justice Helen McEntee at the outset of the general election campaign, commencement of the legislation has now been postponed and, at the time of writing, it seems unlikely that it will take place until after the formation of a new government. As a consequence of this, pending commencement, the Policing Authority that has existed since 2016 will cease to exist on December 31st, 2024, and there will be no mechanism for oversight of policing until the new Policing and Community Safety Authority is established at some stage in 2025.
This is shambolic and will lead to a dangerous gap in policing oversight in the months ahead. It was open to the Minister to extend the life of the Policing Authority until the new entity was established to ensure that there was no such gap. The decision to allow the Policing Authority wither on the vine of legislative inertia and bureaucratic pettifogging places its chairperson, Dr Elaine Byrne, who also happens to be the chair-designate of the new authority, in an invidious and unusual position. Non-entities, one imagines, do not require chairs, yet she will be the public-facing chair of a nonentity from the end of this year until the establishment of the new authority.
Leaving such questions, which might be dismissed as abstract, aside, this appalling vista is entirely avoidable. At the very least the Minister should ensure that the current authority continues to exist unit the replacement body is formally established. A firm establishment date might even help to mitigate any confusion. A failure to do this will impact negatively on the effective functioning of the new body at a crucial stage in its development and impede its capacity to operate with full statutory powers and no impediment in the exercise of full legal and operational independence. It will also have negative practical consequences for the process to recruit a new Garda Commissioner in early 2025, a process in which the authority plays an important role.
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The main political parties are jumping over one another to establish their ‘law and order’ credentials and making all sorts of implausible promises about Garda recruitment. No one should be fooled by this, least of all those who work – whether as sworn officers or civilians – for the policing service
It serves no proper or rational purpose to have the new governance and oversight superstructure proposed by the commission, which is already well behind schedule, exist in a state of suspended animation for any extended period of time. From day one the new board, authority, independent complaints mechanism, Fiosrú, and independent examiner should operate with uncompromised effectiveness and independence.
Since its establishment almost nine years ago the Policing Authority has demonstrated impressive independence in the discharge of its functions. Its founding chair, Josephine Feehily, deserves credit for fearlessly asserting the right of the authority to hold the policing service to account, in circumstances of significant resistance to novel processes of public accountability. Her successor, Bob Collins, with the staff and members of the authority, advanced a culture of policing accountability through constructive engagement with Garda management.
The idea of taking a breather from ongoing accountability while delayed arrangements are put in place for the merger of the authority and inspectorate – something that has been foreseeable for years – is anathema to the most basic requirements of independent and effective oversight of policing. The combined powers of the new authority, drawing on the resources and institutional memory of the old bodies with additional strengthened structures for community policing and inter-agency matters, should be given every chance of success. It is perfectly achievable to have a seamless transition from the old institutions to the new without the kind of discontinuity that is being orchestrated right now.
When the Commission on the Future of Policing reported in 2018, having completed its considerable task within the space of a year, it was envisaged that most of its key recommendations would be implemented by 2022, the centenary year of An Garda Síochána. The context in which the commission was established was one of existential crisis for policing in Ireland in which policing and related issues had become politically toxic. It is so easy to lose sight of this with the passage of time and to forget the context in which serious reform proposals were made. The Covid-19 pandemic contributed to delays in implementation but the more recent additional delays were avoidable and should have been averted.
There is now a troubling narrative that too much oversight is bad for policing. This can take the form of special pleading by vested interests and must be viewed with the deepest scepticism. The main political parties are jumping over one another to establish their “law and order” credentials and making all sorts of implausible promises about Garda recruitment. No one should be fooled by this, least of all those who work – whether as sworn officers or civilians – for the policing service.
According to Flann O’Brien in The Third Policeman, “it is a great thing to do what is necessary before it becomes essential and unavoidable”. This could have worked as the perfect tagline for the report of the Commission on the Future of Policing. It can now be said, more than six years later, with impatient certainty, that we must do what is necessary, essential and unavoidable before it is too late.
Donncha O’Connell is an established professor of law in University of Galway. He was a member of the Commission on the Future of Policing in Ireland
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