Garda Síochána (Amendment) Bill 2017: Discussion

The purpose of today's session is to conduct detailed scrutiny of the Garda Síochána (Amendment) Bill 2017, which is sponsored by our committee colleague, Deputy Jim O'Callaghan. We are joined from the Policing Authority by Ms Josephine Feehily, chairperson, and Ms Helen Hall, chief executive officer. We have Ms Karen Shelly, assistant principal, in the Public Gallery. The witnesses are welcome and we thank them for engaging with us on this proposed Private Members' Bill.

I have to remind members once again that under the Salient Rulings of the Chair, they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

I draw the attention of our witnesses to the position regarding privilege. Witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

Before bringing in our witnesses, I will first invite Deputy Jim O'Callaghan, as the Bill's sponsor, to make an opening statement.

I thank Ms Feehily and Ms Hall for coming in. This will be short because the legislation under discussion is concise and made up of only three sections. It is useful to have the Policing Authority representatives before the committee because the purpose of the legislation is to give greater powers to the Policing Authority in respect of its supervisory role over An Garda Síochána.

Like most legislation, this comes out of an occasion or event of political controversy. You will remember, Chairman, that in March 2017 there was significant public concern about the fact that An Garda Síochána announced at a press conference that approximately 1 million false breath tests were recorded on the PULSE system and that approximately 1,500 wrongful convictions were secured in the District Courts because of errors made by An Garda Síochána. That was a significant issue and it had serious consequences.

From a policy perspective, one of the infuriating aspects of that issue was that no one outside of An Garda Síochána appeared to have been apprised of these facts. We know that the discrepancies in the intoxicant checkpoint data were known of within the force as far back as 2014. We know that a working group was established within the force to investigate the matters in July 2015. We know that the group reported the discrepancy in November 2016. However, these issues did not come into the public domain until March 2017.

The first purpose and primary policy objective of section 2 of this legislation is to try to ensure that senior management within An Garda Síochána will be obliged to bring issues of significant importance to the attention of the Policing Authority. Moreover, the purpose of section 2 is to impose an obligation on An Garda Síochána to inform the Policing Authority about any matters that required an internal review, audit or examination of the functions or operation of An Garda Síochána and that were requested by the Garda Commissioner, deputy commissioner or any assistant commissioner.

The benefit of this measure in the context of the breath test crisis is apparent. The Policing Authority would have been informed at the time the issue first became apparent. The Policing Authority would have been able to accompany and advise An Garda Síochána in terms of the importance of this being put into the public domain. It would also have prevented the Garda from deciding of its own accord when to go public on the issue. I believe it would be of benefit to the Garda. More important, it would be of benefit to the public interest.

We have seen during the past two years the issues in respect of the homicide review, which is ongoing. If a requirement was imposed on An Garda Síochána to inform the Policing Authority about significant audits ongoing, then the homicide review would have been commenced with the knowledge and awareness of the Policing Authority.

I do not believe we would have found ourselves in a position where the Policing Authority had to extract, sometimes successfully and sometimes unsuccessfully, information from An Garda Síochána in respect of the homicide review. It will be interested to hear the views of the Policing Authority on the requirement provided for in section 2.

In section 3 I seek to amend section 62 of the principal Act by providing powers allowing the Policing Authority to remove a member of An Garda Síochána if it is the opinion of the Policing Authority that a member’s conduct or continued membership is undermining public confidence in the force. It is extremely difficult to remove a member of An Garda Síochána, as it is to remove any member of the public service, which is as it should be. However, because the Policing Authority's role as a supervisory body is not only to supervise An Garda Síochána but to ensure there is public confidence in the force, it would be of benefit if this power, which we expect to be used infrequently and in exceptional circumstances, was provided to the Policing Authority.

There is sometimes, unfortunately, an assessment in the public mind that the Garda does not deal with wrongdoing or incompetence within the force effectively enough. I know it is the function of the Garda Síochána Ombudsman Commission, GSOC, to deal with complaints from members of the public in respect of the force. However, if the Policing Authority had the power to remove a member of An Garda Síochána in exceptional circumstances, it would improve public confidence.

Section 4 was originally a proposal contained in a report of the joint committee published in 2016. It seeks to extend the powers of the Policing Authority in the manner proposed by the committee's report. The section would give powers to the Policing Authority in order that it can supervise the functioning of the Office of the Garda Commissioner and the discharge of the functions by the Commissioner. I believe Deputy Mick Wallace put forward a similar proposal previously. Obviously, this will not result in a member of the Policing Authority sitting in the Garda Commissioner's office every day. It would be of benefit, however, if there was some recognition of the enormous role played by the Garda Commissioner. The Policing Authority should be regarded as a co-partner, not in investigations or operational matters but to ensure there is awareness of and transparency in the crucial work carried out by the Garda. The Bill also empowers the Garda Inspectorate to make unannounced visits to Garda stations, which is also a useful provision. Currently, visits from the Garda Inspectorate must be announced. This is like a school knowing an inspector is coming; it will make sure the best students are ready and the best teacher is presented.

These are the proposals in this short Bill and I am very interested in hearing what the Policing Authority has to say about them. I assure Ms Feehily and Ms Hall that I am not sensitive or proprietorial about the Bill and I will not be offended if they believe it is rubbish. I ask them to inform the committee if parts of the Bill need to amended or if there are other parts where the Policing Authority's functions could be assisted by the Oireachtas passing laws. The exclusive responsibility for making laws rests with the Oireachtas, rather than the Policing Authority, but it is important for us to be aware of the practical impact our laws may have on the Policing Authority if they are passed.

I invite Ms Josephine Feehily to make her opening statement.

Ms Josephine Feehily

It is unusual for us to be in a position to be asked to discuss in person legislation that has passed on Second Stage. Having reviewed the Second Stage debate, I can thank the Minister for Justice and Equality, Deputy Charles Flanagan, who indicated it would be good to hear from the Policing Authority. As such, I thank the Minister for the invitation to appear. Having said that, we are happy to help if we can.

There were several references in the course of the debate on Second Stage to the obligation on the Policing Authority, under section 62(O), to issue a report within two years on its effectiveness and the adequacy of its functions. The most useful opening remark I can make is to refer members to that report, which was sent by the authority to the Minister on 22 December 2017. It was laid before the Houses of the Oireachtas in January 2018 and is published on the authority's website. The report made a range of observations and I will pick them up when commenting on the various sections. That is why I am positioning my remarks in the context of those reports. We make an overall assessment on our effectiveness, which I will not read it out verbatim in order that we can get down to business now. However, we stated that we considered our functions broadly adequate for the tasks assigned to the Policing Authority in the Garda Síochána Act, although frequently they are cumbersome, overly circumscribed and inefficient. Subsequently, the authority made a submission to the Commission on the Future of Policing, which is also published on our website.

The reason I reference those two documents is to make clear to the committee that we know we have a limited brief and limited powers. We welcome additional powers but in respect of this Bill, our view is that we would welcome broader powers. In the submission we made to the Commission on the Future of Policing, we noted the importance of accountability and consent policing. We indicated that the architecture is unnecessarily complex and crowded, with much duplication. The Garda believes there is too much oversight and accountability but we do not agree. All of the functions exist in the architecture should continue and ambiguity and duplication need to be reduced. This is relevant to one of the sections because one of them risks introducing more complication.

Our report noted that one of the significant barriers to the effectiveness of the Policing Authority was the challenge of overseeing the performance of an organisation while the head of that organisation is accountable to somebody else, in this case, the Minister for Justice and Equality and the Secretary General of the Department. This has been a barrier to our effectiveness and has created serious confusion in the public mind. In the context of being a regulator, allowing the regulated body to have two places to go leads to a risk of gaps in oversight. That is relevant to parts of the sections in the Bill. We proposed to the Commission on Future Policing that it be placed beyond doubt in statute that the Garda Commissioner is the chief executive, the de facto employer of An Garda Síochána and independent in the performance of his or her functions in respect of policing and security. The structure should be such that the Commissioner is clearly the chief executive and operates alongside an oversight body. Currently, the oversight body is the Policing Authority but this may change after the Commission on the Future of Policing reports. That is also relevant to the Bill.

As I note in the conclusion of my statement, I hope the reports we sent to the joint committee gave it a sense that while the Policing Authority would welcome new powers, it would welcome even more a better defined overall architecture, clearer expectations of oversight bodies and a better understanding of the limitations of oversight in the current statutory framework. Some parts of the Bill are very clear. However, we believe that other solutions are available in respect of other parts and that it is not clear how certain parts would fit in to the existing architecture. I will be happy to go through each of the sections, as Deputy O'Callaghan did, if that would be helpful.

Yes, absolutely.

Ms Josephine Feehily

I first want to make a plea in respect of the effectiveness of the Policing Authority. We stated in our report that if we had been given some start-up time before commencing operations, the authority would have been more effective. If this Bill, or a version of it, is enacted, we ask that a commencement order is put in place to give us time to prepare before starting to exercise new functions.

On section 2, members are well aware that the authority has had difficulties with spontaneous notifications. We discussed this issue the last time I appeared before the committee. We find the sentiments of this amendment very welcome and we very much wish and expect to be informed of the items listed in the section. The risks with the section arise because it is highly prescriptive. I find this to be a weakness of Department of Justice and Equality legislation generally. When legislation is prescribed in micro detail, it creates a problem where an issue arises that falls outside the prescribed detail. I have in mind the example of what would be known in the Garda as an evaluation. If an evaluation initiated by a chief superintendent found something outrageous, everybody could fold their arms and say they do not need to tell the Policing Authority.

Our preference, which was in our section 62(O) report, was a simple amendment to section 41(a). Section 41(a) states that the Garda Commissioner shall keep the Minister and the Secretary General fully informed of matters such as the preservation of peace, protection of life, "significant developments that might reasonably be expected to affect adversely public confidence in the Garda Síochána", and two others. The Deputy mentioned the breath test issue. The remarkable aspect of that is the Garda told the Department of Justice and Equality; it just forgot to tell us. If the authority is in the same line, whereby if the Garda Commissioner has to tell the Minister something he or she also has to tell the authority, it might be a simpler and more comprehensive-----

Ms Josephine Feehily

-----solution to the issue. That is what we recommended in our report on our powers.

Section 3 is probably the most problematic for us. I refer to my comments about the architecture. First, the authority understands the Deputy's point that it is critical for public confidence that there be an effective mechanism for investigating misconduct by employees of the Garda. We believe there are significant deficiencies in the current system for disciplining members, and we set out our perspective in our submission to the Commission on the Future of Policing in Ireland. Our key points were: the process for investigating and conducting discipline in the Garda Síochána needs to be subjected to a root and branch review having regard to whether it accords with best practice; there is a worrying number of successful appeals and reviews of the outcome of its disciplinary process on procedural grounds - worrying in terms of the Garda's capacity to use the regulations it has; the regulations should be reviewed to ensure the system for investigating complaints and internal discipline accords with best practice; consideration should be given to certain disciplinary tribunals being held in public because it is a mark of the integrity and independence of disciplinary processes in many professions and in many policing services outside Ireland.

In any review of the discipline regulations, we submitted that further consideration should be given to the range of sanctions set down in the regulations. In particular, there is a sanction called "advice", which would not appear to be a sanction at all. That appears twice in the regulations. We made a significant submission to the commission. It concluded with questioning whether the existing model facilitates independent and robust decision-making, includes the necessary supports, by which we mean legal advice, human resources and specialist knowledge in Garda headquarters, and whether it is the subject of appropriate management information to facilitate organisational learning.

With that in mind and in view of what I said about the architecture, we were not clear about what this section would achieve. It appears to be a copy of section 14, under which the Garda Commissioner may dismiss on summary grounds with the consent of the authority. That generally happens when the facts have been established beyond doubt and, in our experience, arises following criminal prosecution and conviction so the facts are not at issue. This section appears to give us a parallel role in the same cases, which worries us. Another set of cases also come through the discipline regulations. We are looking at potentially three different opportunities, and procedures and processes, for a dismissal to arise. It would have to be rationalised between those three for it to be safe.

I take it from the Deputy's remarks that this would be used sparingly and that he meant cases where the facts were not in doubt. This appears to be a type of summary section. If this was to be used in circumstances where a criminal conviction had not been achieved, the authority would have to establish the facts. We would require another range of powers to give effect to this. We would need powers of investigation, which would have to be similar to those of the Garda, a compelling power on the Garda Commissioner and GSOC to give us access to information, and an appeal system. We would need to have a great deal of machinery that is in the discipline regulations.

Finally, we are concerned at the introduction of the Government's consent to the dismissal. When the authority was established, there was a definite effort to take as much as possible away from the Government in the statutory framework. We would be concerned that if the appeal from the authority was to the Government, it might reintroduce a politicisation that would be unhelpful. Our preference would be, and Mr. Justice Charleton spoke about this when referencing the Morris tribunal, that the entire disciplinary process be examined from top to bottom. The acting Garda Commissioner told us recently that he was starting that process. There has been preliminary engagement with the Workplace Relations Commission with a view to starting some work in that regard. A bigger change is needed. Section 3 could complicate this and reintroduce the Government in a way that might not be helpful to the overall statutory framework.

With regard to section 4, I return again to the architecture. It would be helpful to understand better how this would fit with section 26 which sets out the Garda Commissioner's functions, bearing in mind that the authority's view is that the Garda Commissioner should be the chief executive. The Garda Commissioner has a range of functions to direct, carry on, manage and generally control the administration of the Garda Síochána and so forth. If he or she is directing and controlling, where would oversight fit in without being conflicted? On the supervision provision, I would like to better understand what the words "supervise" and "Office" mean in that regard. There would have to be some definitions because the Garda Commissioner is an office with 16,000 people in it. It is an office in that sense. There would also have to be some definitions for supervision.

Section 4(1)(ab) states "establish policies and procedures ... which shall be binding ...". Does that mean the authority would be the body establishing all the policies or just an occasional policy, for example, the code of ethics? If that is the objective, it must be clearer; if it is not the objective, there is a problem with section 26.

Section 4(1)(ac) refers to "cause to be published and made accessible to the public all sections of the Garda code..." and so forth. I have no problem with that but there is a more direct route through a provision which simply directs the Garda Commissioner to do it, rather than putting us in the middle. Why would we be causing something to be published when the Deputy could insert a direct provision directing the Garda Commissioner to do it? We would be happy to position ourselves as an appeal mechanism, which would be more appropriate to oversight. Where the Garda Commissioner decided something could not be released we could be the body somebody could approach to take a view on it. The other option, which is in our submission to the Commission on the Future of Policing in Ireland, is that freedom of information legislation should be extended to a broader range of Garda functions. In that event, and probably most appropriately, the appeal against non-publication would be to the Information Commissioner. There are other ways to achieve what is in the subsection. We do not see the need to include the authority there, causing something that we do not own to be published.

Again, I need to understand better what is meant by section 4(1)(ad) to "review the adequacy and appropriateness of the policies ...". We review some of the policies from time to time on a thematic basis. That is in our remit. However, if this provision states that our main job, day in and day out, should be to review, that is a different task. It could be done but I have to wonder how it would fit with the Garda Inspectorate's functions having regard to our views on duplication. The Garda Inspectorate is reviewing policies and procedures all the time. I need to understand that provision better and then perhaps we can help.

Finally, on the inspectorate, I agree with the Deputy that the idea that it has to announce its arrival does not make any sense. We are clear in our submission to the Commission on the Future of Policing in Ireland that a strong, independent inspection function is an essential part of the overall architecture for policing. We are not sure, by the way, that this section is needed but that is a matter for the Oireachtas and the inspectorate itself. We are not sure why the inspectorate cannot just do it without a power. That said, having a power that puts it beyond doubt is always helpful. That is my recitation on the four sections.

I thank Commissioner Feehily for that. I now call Deputy O'Callaghan to be followed by Deputies Ó Laoghaire and Jack Chambers.

I would like to hear from my colleagues first because I do not want to dominate the meeting.

That is fine. Deputy Ó Laoghaire, please.

I thank the Chairman, commend Deputy O'Callaghan on the Bill and thank Ms Feehily and Ms Hall for appearing before us. In a general sense, as I said on Second Stage, I am very much in agreement with the overall thrust of the Bill. Much of it overlaps with the submission that Sinn Féin made to the Commission on the Future of Policing in Ireland, particularly with regard to spontaneous notification and the section on unannounced visits by the inspectorate. I am also supportive of section 4. The only question I have, which I also raised on Second Stage, relates to section 3. A comprehensive answer was provided in terms of the architecture and structure of the Bill but I would like an answer on the principle behind what is intended. Does Ms Feehily agree that the Policing Authority should have the power to remove members of An Garda Síochána? If so, in what circumstances should that apply? Should it apply to all ranks or only to senior ranks? The Policing Authority, which is not an enormous organisation, could be overwhelmed if all ranks were included, albeit that any removal would be in exceptional and serious circumstances. I have an open mind on this but perhaps it would be better for the authority to focus specifically on the senior ranks within An Garda Síochána.

I wish to apologise because at the end of her contribution I referred to Ms Feehily as Commissioner Feehily-----

Does the Chairman know something that we do not know?

I had a flash immediately afterwards and thought that Deputy O'Callaghan's proposal regarding shadowing has taken over.

Ms Josephine Feehily

I used to have the title of Commissioner from 1998 to 2008 so it was not too serious an error.

That is right.

Ms Josephine Feehily

In response to Deputy Ó Laoghaire's question, that is why I was emphasising the chief executive's role. The authority's view is that the optimum structure is that the Garda Commissioner is clearly the employer and above that there is an oversight body. The model in most other countries is that the role of the policing authority or oversight body in the context of removal is confined to the senior ranks. Most commonly, it is confined to one or two of the most senior ranks. If the Garda Commissioner is to be in charge and held accountable for running the organisation then he or she has to be clearly the person who is in charge of the disciplinary processes, including dismissal. The Commissioner then needs to be seriously held to account for using those powers appropriately. That is why we referenced in our submission to the Commission on the Future of Policing in Ireland to the worrying trend of losing cases on procedural grounds. That is a problem for any employer and the Commissioner needs to be able to explain why An Garda Síochána is losing cases on procedural grounds. The short answer is that any oversight body that might come after the commission should only be involved in the dismissal of those in the most senior ranks.

In terms of Deputy Ó Laoghaire's other question, section 14 of the current Act refers to a summary dismissal. This is where the Garda Commissioner does not go through the full bells and whistles of the disciplinary regulations and does not put in place a disciplinary tribunal. That can only be done safely when the facts are not in doubt. It is useful to have a body like an authority consenting in those circumstances to make sure that a Commissioner does not run away with himself or herself in choosing a summary dismissal option. We can see a function for an authority to consent to something that the Commissioner has done in a summary situation because the power to dismiss someone without a disciplinary tribunal is a significant one which should be used sparingly.

In the current statutory framework, we could do that using an interpretation of section 13, if needed, for the ranks between superintendent and Assistant Garda Commissioner. That is provided for and we could engage in a summary dismissal where the facts are not in doubt. There is a page of actions we would have to take and they are all set out in the section but we think we have the power, if that was the intent of the provision. In future, however, we should be confined to the top layer.

Regarding the top layer, is Ms Feehily referring to the top two ranks or top three?

Ms Josephine Feehily

With regard to where that layer is, I must keep referencing the fact that one cannot oversee a body, including dismissing an individual, if that individual is personally accountable to somebody else. Unless the architecture in terms of the role of the Minister, the Government and the Secretary General of the Department of Justice and Equality is resolved, there is no point in giving the Policing Authority a power related to the Commissioner where the Commissioner's personal accountability is to someone else. It could not be done legally so the entire architecture issue must be resolved. The appointment and the dismissal must go together. There is no other legal, safe way to do it, although I am not a lawyer.

I thank Deputy Feehily. My apologies again - Chairperson Feehily. What will I call Deputy Chambers?

Lots of Freudian slips there, Chairman.

Not to worry.

I thank Ms Feehily and Ms Hall for coming in. Ms Feehily mentioned a broadening of the powers of the authority. What is her ideal fit in terms of the policing architecture that we have currently? The Garda Inspectorate appeared before us last week and it had its own ideas on the matter. The authority has made a submission to the Commission on the Future of Policing in Ireland. We cannot have different approaches going forward if this is to function. The legislation has to fit. How far would Ms Feehily like to see the authority's powers extended?

Ms Josephine Feehily

In our submission, we referred to functions needing to exist in the architecture. Whether those functions or powers are given to the Policing Authority or to some other body is not the primary issue. The functions of oversight, public challenge, accountability, inspection and complaints must be provided for. They can be divided six different ways but they all have to be there. It has to start with sorting out the legal position with regard to the Government and the Minister. We can like all we want but there is no point in us liking something. There are strong legal views, for example, that because policing is part of the Executive branch there should not be an authority. If that is the position, there is no point in giving us additional powers. We do not want any more half powers.

The Secretary General is explicitly cited in the Act but we have to start by resolving where the Government, the Minister and the Department of Justice and Equality fit in. Then we can work out how to organise the pieces that are left. If the existing infrastructure is retained, whereby accountability on all matters continues to be to the Minister, I am not sure that there would be space left for three bodies because we are tripping over each other a bit. We all have review and research powers. The plea we made in our submission was less about designing the boxes and more about the fact that the functions must be there but need to be rationalised to remove duplication. The public is confused at this stage. We get letters every day addressed to the Garda Inspectorate and it gets letters addressed to us. Some people think that the Policing Authority is the appeals board for GSOC but it is not.

We are not. oversight, which it must do, has a parallel set of meetings with the guards. Quite frankly, I feel sorry for the guards who have to run between the four of us. The Policing Authority would like rationalisation but first it must be clarified where the Government and the Minister fit in. The authority's view is that their role should be as small as possible, in terms of public confidence. If it was as small as possible then it would be much easier to decide how to package the other functions.

Ms Feehily is right. There is organisational confusion, particularly among the public.

Ms Josephine Feehily

Yes.

I hope that the policing commission will rationalise the matter.

In terms of disciplinary regulations, when senior management were before the committee they said that the regulations were being reviewed and modernised. Do the regulations fit in with section 3? Can Ms Feehily outline what is happening with the regulations?

Ms Josephine Feehily

They are at a very preliminary stage.

Ms Josephine Feehily

We have asked to be kept informed. They have preliminary engagement with the Workplace Relations Commission to help them with it, and I think that is a good idea. We plan to share our views with the Workplace Relations Commission, when they get going, so that they can see what we think we are seeing, in terms of the regulations. The disciplinary regulations, like lots of other things in this realm, are very detailed and prescriptive, which is why they miss a step quite often. They are not like any discipline code. There is a code of practice on disciplinary procedures, which is in place, under the Workplace Relations Commission. The regulations do not look anything like that. They are quite different. The range of penalties are very strange, to my eyes.

As there is no individual performance management system in the Garda Síochána, they use discipline to do things that in another organisation would be done in a performance management context. That is why, under the discipline code, one will find oneself with a penalty called "advice". Such a term belongs in a performance management system where one can have a chat about one's performance and be given improvement and development advice. A penalty called advice should not be one of the options available under disciplinary regulations, in my opinion. The review is at a very preliminary stage but because the Garda Síochána has engaged professional help I hope it will move along.

Has a timeline been given to the Policing Authority? A lack of a timeline was an issue when we had the Garda Síochána here a while ago. A timeline is important.

Ms Josephine Feehily

There will be engagement with the association. The review will not be fast.

Ms Feehily is right. I thank the witnesses for coming before us. I also thank my colleague, Deputy O'Callaghan, for progressing this Bill.

I thank Deputy Chambers.

Will I conclude?

Do members wish to comment? No. I call Deputy O'Callaghan.

I thank Ms Feehily for her comments. If we are considering the corporate governance of An Garda Síochána, I note Ms Feehily talked about the chief executive. Does she see the Policing Authority as being the board?

Ms Josephine Feehily

We could be and that is one of the options that we have outlined in our submission. We could be an entirely non-executive board.

I shall outline another option that was in the original 2005 Act but somehow or another never happened and was removed. Non-executive members could be assigned to a management board, or whatever they call the top management mechanism in the guards, and we would be an oversight body for that. One could put non-executives in there.

Ms Josephine Feehily

One could give the authority less operational involvement but more oversight. There are two options.

Ms Josephine Feehily

Either is good. The reason we have focused so much on the Commissioner as chief executive and also as an employer is because there is a lot of confusion and the industrial relations machinery is run by the Department. That situation is not conducive to there being clarity-----

Ms Josephine Feehily

-----about the Commissioner's position as an employer. The Commissioner is responsible for discipline but the mechanisms to engage with associations, around discipline, sit with the Department of Justice and Equality.

Ms Josephine Feehily

The situation is all very muddled and we seek clarity. If one is in charge and one is expected to deliver results with the troops that one has then one needs to be clearly the chief executive, the employer and the Accounting Officer, and then everything flows from that.

There are similarities between the HSE and the Garda Síochána. In terms of the cervical smear controversy, one of the disadvantages was that there was no board in the HSE that could step in and call for the matter to be dealt with immediately. It is a similarly situation with the Garda Síochána when the breath test issue and homicide figures were examined. In those instances it would have been beneficial to have a board that could call for the matters to be resolved or dealt with in a particular way immediately.

I have a big question, which is one for policymakers in the future. I get the impression that Ms Feehily thinks the Minister should not have an overly supervisory role. Am I wrong? I believe that she thinks the Policing Authority should be the entity to which An Garda Síochána and the Commissioner report, and that the Minister should get out of the way. It is a very big question, as I know she is aware.

Ms Josephine Feehily

It is a huge question that has a constitutional dimension and I have seen a lot of the legal advice. It is about mindset. Public servants are not supposed to comment on Government policy but the Government has not articulated a policy on this other than the way it has framed the Bill. Therefore, I need to be careful. There may well be, because there must be, a proper ministerial position in that chain, because there must be parliamentary accountability.

Ms Josephine Feehily

I have never seen a formulation in any Government organisation - it may exist but I have never seen it - that says the chief executive of a very big body is accountable to the Minister through the Secretary General. I have never seen that. I was not accountable, in my previous life, through the Secretary General.

Who did Ms Feehily have to report to?

Ms Josephine Feehily

The Minister for Finance.

Did Ms Feehily report to the Minister directly?

Ms Josephine Feehily

Yes. The Minister for Finance. That is not to say that there was not work done at an official level, particularly around the time of the Finance Bill, budgets and so on.

The upshot of that is there is a huge support structure for that function in the Department of Justice and Equality. It is because of that it is critically conflicted, which was stated in our submission, in terms of where it fits vis-à-vis also being responsible for the oversight bodies. The Department is one of the oversight bodies but it duplicates the work of lots of the other oversight bodies. Where is the Minister? The Minister, certainly, but the Government always, have a place in terms of strategy, policy and direction, and must have an exceptional power of direction, without question. It is the level of granularity that is exercised and runs in parallel with what we are supposed to be doing that creates gaps. We are also concerned about the potential for a gap in oversight because the Minister is the only place that owns both security and policing. What is in the middle? If there is architecture that looks at security and another that looks at policing then how does one manage that intersection safely? How do we know what the Minister knows and, conversely, how does the Minister know what we might have seen in our oversight? It is not that I see no role. I absolutely respect that there will always be a role, and has to be a role for Government, in policing - it is a political act. It is about the day-to-day operational management and we believe that should be as much reduced as possible.

In terms of section 2, I get the point that Ms Feehily has made about spontaneous notifications. I think there is general agreement between what is proposed and the Policing Authority. I note and agree with her that it probably is too prescriptive. Sometimes legislation is better when drafted broadly so as to encapsulate a lot of events as opposed to a number of limited ones. I detect that there is general agreement about spontaneous notifications.

Ms Josephine Feehily

Yes.

Section 2 needs to be rephrased slightly.

In terms of section 3, Ms Feehily is not mad at the idea of being given the power to dismiss a member of An Garda Síochána. It would be on the basis of facts that have been established. I note that Ms Feehily has stated that this appears to be a repetition of a power that is available elsewhere and seems to be without statutory justification.

In terms of section 4, I am conscious that when I speak about the section that I am not just advocating on behalf of myself. The committee has also made a recommendation to this effect. The reason I am looking at the provision online is because I did not print a hard copy of the Act.

Section 4 states that the Policing Authority would have powers to supervise the functioning of the office and supervise the discharge of functions by the Commissioner, and establish policies and procedures for the Garda which will be binding on all members. That is like the code of ethics and calls for the Garda code and Garda operational policies to be published. I note what Ms Feehily says that there is ambiguity as to what specifically will be covered by her supervision of the discharge of the functions of the Commissioner but does she see any benefit in the same way as a chief executive will sometimes have a chairman working close by, even non-executive, to having supervision of the functions of the Garda Commissioner's office?

Ms Josephine Feehily

There are two problems for us. What is the office that we would we be supervising and is it the same function that we have at the minute of overseeing? Is it just that the office needs to be defined or is it more intrusive supervision? One way or another the statute will need to be clear what the office was that was different from our oversight of the organisation and on the issue of supervision versus oversight, and how we would make sure we were not conflicted. Those are our concerns but there cannot really be any difficulty with the notion of better oversight given there is acceptance for the principle of an oversight body. It is about how it fits.

The policies and procedures need to be more specific to make it clear that it was not our job. If it was our job to establish all the policies and procedures then we would be the Garda and we would not be an oversight body so there needs to be some redrafting there to carve out what is intended. There is reference to the assistant commissioner but I think it should go straight to the Commissioner. Where does occasional review fit with the inspectorate?

I thank Ms. Feehily for coming in and for her comments.

There is nothing further for me to do but to thank Ms Feehily and Ms Hall for being back with us again today and for their engagement with us. I have no doubt it has been very informative, particularly to the draftee of the Bill.

Very good.

The witnesses are the draftees.

It has been one of those days.

Heaven only knows what might be ahead of us all.

The joint committee adjourned at 12.03 p.m. until 9 a.m. on Wednesday, 13 June 2018.