Minister’s action raises Garda independence issue

By Aisling Reidy
Director of the Irish Council for Civil Liberties
(for the Sunday Business Post)

In the Seanad last March, justice minister Michael McDowell said he wanted to prevent the spectre of “a minister lifting a phone in a bad humour one afternoon [and] influencing the outcome of any individual investigation or prosecution”.

Yet reports that McDowell has “ordered” the Garda Commissioner to explain how gardai came to question three citizens with the agreement of their legal representatives raises legitimate concerns as to whether that is precisely what has happened.

Is this a breach of separation of powers, or could the minister insist that he must ensure that gardai are accountable for their actions?

The doctrine of “operational independence’’ has always been of central importance to ensuring that the Garda Siochana carries out its functions free of political interference. This is based on a legitimate fear that excessive interference in police matters by the government could lead to partisan political control.

It is important that politicians be prevented from demanding that gardai act against irritating opponents, nagging dissenters or even over-zealous journalists. The theory of our policing system is designed to ensure that gardai are seen as the people’s police, not a tool of government.

However, under the rushed and controversial Garda Siochana Act 2005, the minister took a deliberate decision to centralise control over the gardai in his office. Opposition TDs protested and the Irish Council for Civil Liberties (ICCL)warned that this posed a real risk of politicising the Garda.

The ICCL and the Human Rights Commission recommended that the model of an independent police board proposed by the Patten Commission - which conducted the most extensive investigation ever into best practice in policing - be established to oversee the Garda.

The minister rejected the proposal, asserting that such an independent board would be overtly political and that it would provide an unnecessary buffer between himself and gardai.

The minister said he wanted a system whereby the minister, with the agreement of the government, could give a formal directive to the Garda. The Garda Act provides a broad but vague requirement that the Garda Commissioner be accountable to the minister.

The legislation gives the minister extensive powers to require that the Garda Commissioner keep him “fully informed’’ of significant developments. Also, whenever required by the minister, the commissioner must submit a report on any matters connected with the policing or security of the state or the performance of the commissioner’s other functions.

Of course, in any democracy, there is a delicate and, at times, difficult balance between freedom from political interference, and proper and necessary oversight by government.

However, as the Patten Commission made absolutely clear, the chief of police “has a right and duty to take operational decisions and . . . no other body should have the right to direct [him] as to how to conduct an operation’’.

This in no way undermines the principle that the police should be held to account for the manner in which that power is exercised.

So what powers did the minister use in respect of the Colombia Three, and why did he exercise them? McDowell appears to have reacted with anger and frustration to his noninvolvement in this particular investigation.

Such a reaction, followed by “orders” to the commissioner, give rise to the perception that McDowell may be using his power to interfere with an investigation under the guise of holding gardai to account.

Such use of powers would be a blatant political subversion of Garda independence and a perversion of the notion of accountability. The gardai investigate breaches of Irish law. The Director of Public Prosecutions decides if there is evidence to support charges and a likelihood of a conviction. The minister has no role in this.

As the minister himself is fond of reminding us, the constitutional separation of powers between the executive, legislature and judiciary is fundamental to our legal system.

While the government as a whole has a legitimate interest in ensuring that the Colombia Three should not - and should not be seen to - evade any well-founded criminal investigation, the minister has absolutely no place in seeking to influence how this is done.

Urgent Appeal