Old habits die hard in the Department of Justice, and the entrenched pattern of secrecy and resistance to transparency in relation to national security is alive and kicking in the Policing, Security and Community Safety Act. This legislation was passed by the Dáil recently to implement recommendations of the Commission on the Future of Policing made in 2018. In relation to governance and oversight of policing generally and the handling of police complaints, it represents belated progress. But it is, decidedly, a mixed bag when it comes to oversight of national security.
When the report of the commission was published more than five years ago there was considerable focus on the dissent expressed by two of the 11 members in relation to the establishment of a board for An Garda Síochána. Interestingly, that issue caused considerably less debate within the commission than the issue of the “dual role” of An Garda Síochána, whereby the unitary policing service in Ireland also operates as a security service. This is not the norm in many jurisdictions and, despite some benefits, is laden with hazard.
There were sharp differences of opinion within the commission on this issue. After much debate and deliberation, we agreed unanimously that the dual role should continue, but that the role of An Garda Síochána in relation to national security would be augmented by the establishment of a fusion-type agency dealing with national security – which became the National Security Analysis Centre in the Department of An Taoiseach – with independent oversight to be provided, for the first time ever, by a new office of Independent Examiner of Security Legislation.
The model for this oversight proposal was the office of Independent Reviewer of Terrorism Legislation in the UK. Our recommendation was clear that the independence of any such office would be of paramount importance and that its effectiveness had to be underpinned by robust powers, grounded in legislation, and adequate resources. A non-negotiable minimum for any such office to be effective is the right of the office-holder to see everything, safeguarded by rigorous vetting of that office-holder and strict obligations of confidentiality.
The legislation just passed allows for the withholding or redacting of information sought by the examiner in a range of circumstances that could make it extremely difficult for the office to function effectively. The intention of the Government is to appoint a serving or retired member of one of the superior courts. This falls significantly short of the UK model on which the Commission’s recommendation was based and will, inevitably, result in weakened light-touch oversight done behind closed doors.
Whatever about the appearance of independence that judges lend back to the political system when they take on roles that are quintessentially political but with a heavy legal content, a judicial background is not, in fact, the norm for appointment in comparable systems that have independent oversight mechanisms for national security. Judges are ideal for warrantry and other such formal activities but not for proactive oversight of security with some element of public engagement. It is not that judicial office-holders should be excluded, but confining eligibility for appointment solely to judges, serving or retired, is gratuitously restrictive.
The value that a judge might bring to an oversight process such as this is an ability to read and understand the powers available to the examiner and to act with good authority. Any discerning judge reading the new Act will see instantly that the power of “information holders” to withhold or redact information sought by the examiner to protect sources, or a third-party provider of intelligence, is so sweeping as to fatally undermine the probing power of the office.
The pool of potentially eligible appointees is already tiny and it will be emptied further when you factor in the number of judges who will take one read of the legislation and decide not to have their time wasted in fronting an office of chimeric potential.
This is not inconsequential. Weak oversight – if we have learned anything of our considerable experience of this phenomenon – leads to endemic dysfunction and facilitates corruption. It enables a culture of negligible accountability and casual impunity. Many of the controversial issues that led to an existential crisis for An Garda Síochána in the period leading up to the establishment of the commission in 2017 were traceable to controversies arising from the dual role in which the blanket excuse of national security was invoked to evade accountability.
It is noteworthy that the level of oversight of security that operates in Northern Ireland is appreciably stronger than that which will operate in the South under this new independent examiner regime. This is yet another example of the exceptionalism that pervades our thinking on what constitutes appropriate scrutiny and human rights protections in this part of the island of Ireland, something that is acutely evident in the context of policing and security.
The recommendations of the commission constituted a holistic blueprint. Our nuanced and pragmatic position on national security, the dual role and oversight may have taken too much on trust. These issues will almost certainly need to be revisited in the future, by which time few will remember that a practicable and sensible solution was proffered in 2018, that it was grounded in evidence of what worked well elsewhere, that it was accepted with great fanfare by the Government initially, and then compromised beyond recognition when enacted into law. What a sorry and very Irish saga.
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 and chaired its Governance, Oversight & Accountability Sub-Committee.
What a sorry and very Irish saga: A squandered opportunity to strengthen national security
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14.02.2024
Old habits die hard in the Department of Justice, and the entrenched pattern of secrecy and resistance to transparency in relation to national security is alive and kicking in the Policing, Security and Community Safety Act. This legislation was passed by the Dáil recently to implement recommendations of the Commission on the Future of Policing made in 2018. In relation to governance and oversight of policing generally and the handling of police complaints, it represents belated progress. But it is, decidedly, a mixed bag when it comes to oversight of national security.
When the report of the commission was published more than five years ago there was considerable focus on the dissent expressed by two of the 11 members in relation to the establishment of a board for An Garda Síochána. Interestingly, that issue caused considerably less debate within the commission than the issue of the “dual role” of An Garda Síochána, whereby the unitary policing service in Ireland also operates as a security service. This is not the norm in many jurisdictions and, despite some benefits, is laden with hazard.
There were sharp differences of opinion within the commission on this issue. After much debate and deliberation, we agreed unanimously that the dual role should continue, but that the role of An Garda Síochána in relation to national security would be augmented by the establishment of a fusion-type agency dealing with national security – which became the........
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