Coalition plan to reform gardai unconstitutional, says McDowell

Former Tanaiste, Attorney- General and Justice Minister Michael McDowell has said the Government's plan to place An Garda Siochana under the control of an independent authority is unconstitutional, and could be struck down by the courts.

Justice Minister Frances Fitzgerald is determined to reform the force by providing greater oversight through a new garda authority and by strengthening the powers of the Garda Siochana Ombudsman Commission (GSOC).

The reforms come in the wake of a series of garda related controversies that eclipsed the careers of former Garda Commissioner Martin Callinan and ex Justice Minister Alan Shatter.

Mr McDowell has dismissed the proposed garda authority as a "phoney" policy response to what he says is the "entirely dysfunctional" manner in which Mr Shatter and his department dealt with the gardai.

Mr McDowell - the architect of the 2005 Garda Siochana Act, itself a response to the activities of gardai in the Donegal division that led to the Morris Tribunal - said that no other common-law country has ever attempted to vest control of its national police force in a body independent of government.

Mr McDowell, yesterday, told a Society of Young Solicitors (SYS) conference that the 2005 law was specifically modelled to acknowledge the "constitutional reality that the force must be under the control of the Government and subject to the direct authority of the Government".

"The Shatter ministerial debacle is not a sound basis for tearing up constitutional principles," Mr McDowell told the conference, adding that the role of a national police force and national security service is so central that it must be exercised by, or on behalf, of the Government.

"We cannot have a situation where An Garda Siochana is permitted to act on the independent authority of a non-governmental body in a manner which is wholly at variance with the policies and requirements of the elected government," he said at the conference held in Ballymoney, Co Wexford.

"In my view, the Government's proposal is plainly unconstitutional in that it fundamentally subverts democratic control and accountability of the policing function in a parliamentary democracy," said the former PD leader.

Mr McDowell drew a distinction between the proposed garda authority and the structures in the North, where its police service, the PSNI, is controlled by a party political authority in what he said are very different circumstances.

"If the Government persists in abdicating its constitutional responsibilities in respect of control and accountability for An Garda Siochana, a likely outcome is a court case debacle in which the Act purporting to establish an independent policing authority is struck down for violating the terms of the Constitution," he told the SYS. He then asked: "If that happens, who will then accept responsibility for the chaos that will ensue?"

It is not the first time Mr McDowell has criticised the proposed garda authority. Last July, he told the Magill Summer School that an independent garda authority is a "derogation of the constitutional need" to have the security of the State accountable to politics.

Sunday Independent