Five years on, the recommendations of the Commission on the Future of Policing in Ireland have yet to be fully implemented.
18 September 2023
Today marks five years since the publication of the Commission on the Future of Policing’s game-changing report. After years of work, these experts gave us a blueprint for root and branch reform of An Garda Síochána in the wake of a series of scandals which critically damaged public confidence in Irish policing, from the Morris Tribunal to the revelations and treatment of Maurice McCabe. Its core recommendation was to make human rights the “purpose and foundation of policing”; a recognition by the Commission that policing is a crucial interface between the power of the State and the rights of individuals across society.
The Government at the time fully accepted its recommendations and published an implementation timeline. But despite some early improvements, the Commission’s vision for human rights-focused reform seems to have been sidelined as discussions on policing revert to a longstanding and narrow focus on numbers and resources.
Although there were initial positive human rights reforms, in some areas the impetus has stalled. An internal Garda human rights unit was created in 2019 and Human Rights Strategies have been published, for example, but it is unclear what resources are going into implementing these strategies.
The Garda Diversity Unit published a Diversity and Integration Strategy 2019-2021 but it is now out of date. Garda recruiters have sought to attract new members from minoritised communities, including through an internship scheme, but numbers are falling far short of their targets. Attracting women and members of minority groups should form a significant part of the much-needed Garda recruitment drive, but does not seem to be a priority.
A recent Freedom of Information request by ICCL revealed that of the near 14,000 Garda members, only 23% had completed training in human rights. That’s a lot more than five years ago but shows there’s still a long way to go in ensuring a real institutional understanding of what it means to be a human rights-focused force.
Three new Garda bills currently making their way through the Oireachtas provide for significant reforms. The Policing, Security and Community Safety Bill (PSCS Bill), due before the Seanad this autumn, has the potential to transform policing and oversight structures and introduces for the first time in Irish history an Independent Examiner of Security Legislation. However, there are clear gaps between what’s in this Bill and what the Commission called for.
The Bill fails to take prosecution powers from Gardaí, leaving Ireland out of line with international standards and practice. Independent prosecutors are a key safeguard in ensuring investigators respect people’s rights when gathering evidence. This is particularly important in light of the 2015 case of JC v DPP, where the Supreme Court has essentially ruled that Gardaí can breach rights in the gathering of evidence if that breach is ‘inadvertent’. The case changed our rules of evidence in what has been described as a “stunning about-turn" from a rule that required evidence to be excluded if it was obtained in breach of rights, to allowing evidence to be included if the Court considered the Garda did not understand the law.
The Bill purports to strengthen Garda oversight by increasing some powers of the Garda Síochána Ombudsman Commission (GSOC), but it also creates a new obstacle for the Ombudsman by requiring the Garda Commissioner’s permission to search a police station. Ostensibly, this power to refuse access to GSOC investigators is subject to the oversight of the new Independent Examiner of Security Legislation, a role which will be tasked with ensuring that secret things done in the name of national security are necessary and comply with human rights. But the law is flawed here too. In fact, equivalent Examiners in other jurisdictions have raised concerns that under the draft law the Examiner won’t have sufficient powers or access to information to do its job properly.
We’ve heard a lot of complaints from Garda members recently about their working conditions. It’s right that Gardaí have the pay and support they need to do their job; no one would deny it’s a tough one and Garda members have rights too, including the right to organise around working conditions and pay. However, the complaints about excessive oversight of policing are misjudged. Garda scandals over many years have shown time and time again that transparency, oversight and accountability are crucial to combat misbehavior and corruption. Gardaí have to be held to an exceptionally high standard given their extraordinary powers in society to legally restrict our rights to privacy, liberty and bodily integrity when force is used.
The second new Bill, the Garda Powers Bill, intends to codify Garda powers of search, arrest and detention into one clear and accessible law, in line with the Commission’s recommendations. But the General Scheme published in 2021 provided for expanded powers for the Gardaí, meaning they’ll be able to arrest us more easily and detain us for longer. This Bill hasn’t progressed since the Justice Committee examined it in 2022 but Government would do well to use the next draft of the Bill to introduce sufficient safeguards for the use of police powers, rather than expanding them.
Finally, the Garda Recording Devices Bill, also due in the Seanad in the autumn, aims to clearly define Garda monitoring powers in law. This is a positive development but the legislation, as currently drafted, goes beyond the Commission’s recommendations. For example, it provides for expanded powers for Gardaí to track cars without judicial supervision and fails to define a “recording device”. This means that any device invented in the future that can record audio or visual content could be used by Gardaí to monitor us. Think Q’s latest invention for James Bond.
Government needs to ensure that the recommendations of the Commission on the Future of Policing remain front and centre in the Garda reform programme, not least to ensure human rights remain at its heart. Two questions have to be asked. What is being done to ensure this and what resources are being allocated to the task? The answers to both seem to be, not enough.
Doireann Ansbro
Head of Legal and Policy, Irish Council for Civil Liberties