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Opinion What does it actually take to establish an 'independent' policing authority?

The Justice Minister has spoken out about the need for an Independent Garda Authority – but what will it take to achieve that?

MINISTER FRANCES FITZGERALD has this week spoken out about the need for an Independent Garda Authority and stronger oversight mechanism for the Garda Siochana through a reinforced Ombudsman Commission (GSOC). Yet because of the approach taken by successive governments, who have displayed a striking reluctance to cede the necessary control, we have precious few truly independent oversight and accountability institutions in Ireland on which to model any changes.

Working with independent human rights institutions around the world I have seen that no matter what the type of country, governments are commonly and routinely reluctant to give oversight and accountability real independence. Ireland is clearly no exception. Yet independence can be assured in part through statutorily entrenched protections. It is these types of protections that must be incorporated into all of our reformed or new oversight and accountability institutions, including those for the Gardai.

Protecting independence

Independence means that a public body is unrestrained in carrying out its duties. In order to achieve this, independence needs to be built into the structure of the institution to protect it from being subject to potential whims of politicians or Government Departments. Independence can be ensured through five aspects of any institution: powers, resources, accountability, representation and transparency. When any reform or new body is proposed for oversight and accountability, be it short term or permanent, we should check it against these five factors.

Powers – The institution must have the requisite mandate and powers, clearly set out in legislation, and not by regulations, to do the job for which it is established. These powers must be freely exercised without constraint from political forces or the requirement of additional political sanction to use its powers.

Human and Financial Resources – Bodies must be given enough resources to fully undertake their functions, including the hiring of its own skilled staff. Staffing is key for oversight bodies in particular; staff must be hired directly and independently and have the requisite specialised skills. Secondment should be an absolute and limited exception. Bodies must, of course, be publicly accountable for the use of any money, but their resources must also be protected from political whims. Here the Oireachtas can play an important role in overseeing the allocation and the utilisation of the resources of independent oversight bodies.

Accountability – To be independent, an institution must be fully and completely separated from the Department that has responsibility for the delivery of the services it oversees. The body could be answerable to the Oireachtas, in particular through the Committee system, in order to be free from executive influence. There seems to have been particular reluctance to taking this approach in Ireland.

Representation – Bodies need to be representative of the diversity of the population. This should be done both through appointments and a commitment to consultation with the community. A core feature of independence in representation is that appointments to these bodies must not be political, but made through an open and democratic process, with security of tenure to avoid the possibility of removal for political reasons. This has also been lacking in relation to many boards and bodies in Ireland, and while there are excellent and independent individuals on boards of oversight and accountability bodies, it is a process that can be too easily misused.

Transparency – All bodies must be transparent in their operations and accessible to the public in undertaking their functions. There should be a presumption of publication and of openness, and the Oireachtas must play its part in receiving and debating the reports of independent oversight bodies.

Any new or reformed Garda authority and Ombudsman Commission will require these features in order to operate properly.

Political commitment

These five elements can go a long way towards improving oversight and accountability in Ireland; they have been tried and tested in relation to independent human rights institutions, data protection and regulatory bodies around the world. But a crucial additional factor is political commitment to implementing the recommendations oversight and accountability bodies make. Institutions that are established without a corresponding commitment to following their recommendations risk ‘toothlessness’. There must be a political commitment, mirrored in Government Departments, to cede control to properly established oversight and accountability bodies.

Events this year have highlighted again the need for oversight and accountability mechanisms that are truly independent, and not merely created as a veneer. But we have been here before; reviews and inquiries in response to a crisis, and the promise of new accountability and oversight bodies. Following the Morris Tribunal 10 years ago we were promised ‘independent’ oversight and accountability bodies. The Garda Management Board was never established. GSOC was hampered from the outset and given limited powers. The Garda Inspectorate was restricted in its operation by obligations to the Minister of the day.

It is positive to hear a Minister for Justice speak of the need for a focus on independence and oversight, hopefully her words will be followed by the necessary actions and the components of independence will be clearly defined and firmly entrenched in the new bodies, so that we can have the institutions we need and avoid being here again in ten years time.

Kirsten Roberts is a doctoral researcher at The Dickson Poon School of Law, King’s College London and co-investigator on the Project on Effective Parliamentary Oversight of Human Rights. From 2008-2013 she was Acting Deputy Chief Executive and Director of Research, Policy and Promotion at the Irish Human Rights Commission. She has been a visiting researcher at Harvard Law School and has worked for the United Nations International Criminal Tribunal for the former Yugoslavia. 

Read: Michael McDowell doesn’t think much of the government’s plans to reform the guards

Read: Frances Fitzgerald sets up full inquiry and an independent Garda authority

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