Sunday 28 August 2016

Only proper reform can bring clarity to Justice system

Kirsten Roberts

Published 31/07/2014 | 02:30

The Review describes the Department's relationship with the Gardaí as 'deferential', 'confused', 'passive' and 'disaggregated'.
The Review describes the Department's relationship with the Gardaí as 'deferential', 'confused', 'passive' and 'disaggregated'.

The findings of the Review of the Department of Justice raise serious questions as to whether this is the right time for Garda reform and whether the Department as currently structured is in a position to lead such reform.

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The Review describes the Department's relationship with the Gardaí as 'deferential', 'confused', 'passive' and 'disaggregated'. It calls for an end to ineffectual oversight, and change in the practice of formal and the 'shared culture of secrecy'.

The findings give little confidence to reform of the Gardaí being undertaken within the Department as currently configured. It is particularly damning in its appraisal of the handling of briefings to the Minister in relation to recent events. Mentioning the Garda Division and senior management, it lists four particular 'management failings': "No one person in charge of the overall issue. No overall plan to deal with the issues as they unfolded. No recognition of the serious potential impact of the issues. Unable to see where things went wrong." This does not instill confidence for major changes to be introduced to the Gardaí. There are undoubtedly talented and dedicated people in the Department, and a Minister who seems to be committed to real reform, but that reform may need to begin at home.

The Review Group calls on the Department to "be more ambitious in its pursuit of necessary reforms in the justice sector". There is currently is a high degree of complexity in the oversight and accountability structures of the Gardaí.

The proposals for Garda reform put forward by Minister Fitzgerald are set to begin with the introduction of an independent authority and reform of certain powers and functions of GSOC. Yet given the multiple actors involved, it would seem preferable that the system of oversight and accountability be reviewed as a whole. Introducing one new component - such as a Garda authority - without reforming the others may only add to the complexity and lack of clarity in the system.

All of the current Garda oversight and accountability mechanisms have to date been appointed by, and answerable to, the Minister for Justice. The Review emphasises the problematic nature of the current reporting relationship between GSOC and Garda Inspectorate the Department, describing it as a 'conflict'. It did not require the Review for this to come to light. Yet it is precisely for this reason that it is particularly worrying that such a fundamental point - an oversight body reporting to the Department responsible for the institution being overseen - has not been seen as sufficiently problematic since 2005 to be amended by the Department or successive Ministers. This speaks to a lack of understanding of what is required in order to have truly independent oversight bodies.

The Review thus again emphasises that key to any reform of oversight and accountability will be an acknowledgement of the requirements of independence. To be independent, a body must have the requisite mandate and powers, freely exercised without constraint from political forces. It must be given enough resources to fully undertake its functions, and directly hire its own staff. Crucially, in order to be independent a body must be entirely separate from the Department that has responsibility for the delivery of the services it oversees. It must be headed by openly and independently appointed people, and hear from the community as a matter of routine. Finally, an independent body must be fully transparent in its operations and accessible to the public. Any restriction to this last element must be a clearly defined exception, never the rule. All five of these elements are required in any reform.

The Review seems to propose a reporting relationship between GSOC and the independent Garda authority.

In order to be and to be seen to be independent, GSOC should report to the Oireachtas. Indeed there is clearly room for the Oireachtas to take on a greater role in many areas when it comes to oversight and accountability of the actions of the executive and of State bodies in this country.

The Department of Justice has been revealed as flawed in accountability and transparency. Reform of the Gardaí and of the Justice system is vital, important and once undertaken will not likely be done again for many years. The members of An Garda Síochana and the public they serve must have confidence in any reforms.

Kirsten Roberts is a human rights and international law specialist at King's College London.

Irish Independent

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