Friday 31 October 2014

No country on earth would hand its security over to an independent body

A government not in charge of its police and security service is not governing 
a sovereign state


Michael McDowell

Published 17/08/2014 | 02:30

SECURITY OF THE STATE: The Gardai are our national security service, as well as our police constabulary. It is Ireland’s MI5.

Desmond Rea and Robin Masefield argued in last week's Irish Times that because the PSNI is successfully structured with a policing board, the same arrangement can and should be implemented in respect of the Garda Siochana in this State in the interest of accountability. Their argument, which has also been made by Denis Bradley, needs to be very carefully examined.

I held office during the negotiations that gave rise to the full implementation of the Good Friday agreement and its policing arrangements as recommended by the Patten Report. I was and am well aware of the reasons why oversight of the PSNI was entrusted to a board, composed in the majority of senior members of the Northern Ireland Assembly elected on the D'Hondt system (who 
may not be members of the Executive) and in the minority of members nominated by the NI Minister for Justice, rather than to an individual member of the NI Executive.

This quite politicised, cross-community board was put in place with a view to creating and sustaining cross-community support for the new PSNI (which replaced the RUC) while devolving policing powers from Westminster to Northern Ireland's institutions.

Northern Ireland is not administered on a majoritarian principle. Nor is its policing.

The Irish Constitution, however, is very different from the purely legislative arrangements for devolution of power in Northern Ireland.

Ireland is a sovereign state in which the government is not a collective executive chosen by an assembly on a cross-party basis by the D'Hondt system. The people of Ireland elect a Dail which in turn, by a majority, creates a government. No party has any constitutional right to participate in or be represented in government; only those who form a majority in Dail Eireann have such a right. The people can, and do, change governments, often by deliberately excluding a party or parties from exercising the executive power.

Articles 6 and 28 of the Constitution provide that the "executive power of the State" must only be exercised "by or on the authority of the Government" which is obliged to "meet and act as a collective authority" and to be "responsible to Dail Eireann". These are mandatory provisions - not counsels of perfection.

The Irish Government is simply not empowered to divest itself of its responsibility in relation to the central elements of the executive power of the State, or to vest it in some "independent" body. Nor can legislation be passed by the Oireachtas to achieve that end.

So, for instance, the Government may not by a constitutional law hand over control of the Garda to an all-party committee of the Dail (which might resemble a board elected on d'Hondt principles). Policing and protecting the security of the Irish state by a national police force and national security service is quintessentially an "executive power of government" for the exercise of which, under our Constitution, there must be executive accountability by the Government to Dail Eireann.

A government which is not de facto in charge of its national police and security service is not, in any real sense, the government of a sovereign state - no more than a government that has divested itself of control of its army would be.

A parliament to which the government is not responsible for national policing and security matters is not a proper national parliament.

No common law sovereign state anywhere in the world has divested its government of its duty and right to control and be accountable for its national police and security service. And none has attempted to vest such functions in a body "independent" of government. The governments of Canada, Australia, South Africa and New Zealand, like the US, are in charge of the national police and security services. On the other hand, purely regional constabularies such as the PSNI are not the same as national police and security services. In this, the PSNI and the Garda are essentially different.

All of these factors were carefully considered and taken into account when the Garda Siochana Act, 2005, was drafted and enacted. The Patten Report of 1999 was not ignored.

The new policy objective of establishing an "independent" police authority, adopted without public discussion by the Coalition in the electoral white heat of the Shatter debacle, does not even attempt to describe the composition of such an authority. That is significant. What does "independent" actually mean? "Independent" of whom? Of elected politicians? Or of the Government?

The Northern Ireland model was devised in the Patten Report and had as its express aim the removal of control of policing from the members of the Northern Ireland Executive. That was both possible and desirable because Northern Ireland has no formal written constitution commanding the loyalty of the communities there.

However, the Northern policing board is not "apolitical" in any sense. Its majority is composed of elected Assembly members (MLAs). To the extent that the Board controls policing in the North, a majority of its members are party-political backbench public representatives. The remainder are appointed by the NI Minister for Justice. The Patten Commission recommended this course precisely to obviate control of the PSNI by a majority community.

In our constitutional order, which is the international norm, the Government is responsible to the Dail for the policing and security of the State.

Where, alas, we differ from many countries is in relation to the Irish culture of executive non-accountability to parliament. Parliamentary accountability should entail the Minister for Justice and the Garda Commissioner being called before parliamentary committees to explain and to account for the way in which these functions are exercised. We allow the Executive to dominate and dictate the system of its own accountability by our merciless whip system which even allows the government to decide which TDs will form the majority of every Dail committee.

The solution to this cultural problem lies not in the un-constitutional path of divesting the government of its executive duties and powers. It lies in according to the Dail and its members the powers envisaged for it by Article 28 of the Constitution - making government genuinely responsible to the Dail.

That is no pipe-dream. If the balance of power in the next Dail lies in the hands of TDs who insist that the next Speaker of the House (the Ceann Comhairle) is selected as champion of the Dail's rights by secret ballot of all its members, and that its committees are composed and chaired in the same way, and if new standing orders are adopted providing for genuine executive accountability to the Dail and its committees, the Justice committee of the next Dail, for one, would resemble an accountability board elected on D'Hondt principles - asking the hard questions and putting the Minister and Garda management on the spot as regards responsibility and accountability.

That is what the Constitution requires. It contrasts starkly with the recent toothless idiocy that permitted the departure without parliamentary explanation or inquiry of Mr Shatter, Commissioner Callinan, and Oliver Connolly (the Garda whistleblowers' confidential recipient).

The Garda is a national security service as well as a police constabulary. It is Ireland's MI5. Ireland does not have a separate state security service such as MI5. Nobody is suggesting that we should.

The Garda is supposed to monitor the activities of foreign government's agents and informants in Ireland. It deals directly with the Minister for Justice on issues of state security. The government must have complete confidence in the Commissioner on such matters; it must have the right to hire and fire the head of the State's security service.

In the North, MI5 is not under the police board; in relation to state security matters, even the PSNI Chief Constable deals with the Secretary of State at Westminster, not the Board or the Executive, on such matters.

It cannot be right that the choice of head of our State's security service lies in the hands of anyone other than the Government. The idea that a foreign non-citizen who owes no duty of "loyalty to the State" (in the words of Article 8 of the Constitution) is to be made eligible to be appointed Commissioner and head of our state security service by a body independent of the Government is risible. No country on earth would do that.

If Ireland were to establish some form of "independent" police authority and not to have a majority on it composed of TDs, we would be doing something essentially quite different from Northern Ireland.

Arguments based on the Northern model would then be irrelevant.

Why would we create some wholly apolitical oversight quango with greater rights of accountability than a properly constituted Dail Justice committee?

To argue, as I do, that an "independent" police authority is not constitutionally or practically appropriate for An Garda Siochana is not to suggest or imply that the Policing Board is in any way inappropriate for Northern Ireland. On the contrary.

However, the constitutional, historical, political and security situation on either side of the border demanded and still demands different approaches to the governance of policing and security. One size does not fit all.

Sunday Independent

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