GSOC Publishes its Observations on Policing, Security and Community Safety Bill

Policing oversight agency gives broad welcome to fresh legislation introduced to Dáil proposing significant expansion and restructuring of its investigatory powers; seeks further amendments to strengthen institutional independence and Garda cooperation; urges commitment to adequate resourcing and staffing.

Thursday 09 February 2023

Today (Thursday 9 February 2023) the Garda Síochána Ombudsman Commission (GSOC) welcomed the Policing, Security and Community Safety Bill 2023 as “a significant step forward in addressing a clearly- defined, and long-signalled, gap in Ireland’s policing accountability infrastructure”.

The welcome came in a detailed set of observations published today by GSOC in advance of the Bill’s expected introduction to the Dáil by Minister for Justice Simon Harris TD later this month.

GSOC welcomes the provisions in the Bill that propose to replace GSOC with a new “Office of the Police Ombudsman”, strengthen its independence and extend its powers as a civilian police oversight body.

Our observations also signal our ongoing concern that the Bill continues to impose a degree of Ministerial involvement in the governance and operations of the new Police Ombudsman that is inconsistent with the institutional independence envisioned by the Commission on the Future of Policing or by the Council of Europe’s “Venice Principles”.

We restate our concern that the draft legislation does not require An Garda Síochána to cooperate fully and promptly with the Police Ombudsman. We also emphasise the imperative of proper resourcing if the Police Ombudsman is to be capable of fulfilling its expanded mandate.

Speaking today, GSOC Chairperson Judge Rory MacCabe said:

“This Bill is a significant step forward in addressing a clearly-defined and long-signalled gap in Ireland’s policing accountability infrastructure.

GSOC is, however, concerned that if the fundamental issues of institutional independence we have raised are not addressed, the Bill will fall short of the vision of independent civilian oversight which is core to the policing reform process currently underway.

If the expansion of the new Police Ombudsman’s role is not matched by a commensurate increase in the resources needed, the ability of the new Ombudsman to deliver the service that the legislation envisages will be compromised. Failure to resource the new body properly in effect sets it up to fail.

GSOC will continue to work with stakeholders in the Justice sector as the Bill makes its way through the Oireachtas”.

ENDS

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NOTES TO EDITOR

 The Policing, Security and Community Safety Bill 2023

The Policing, Security and Community Safety Bill 2023 was published in November 2022, and initiated in Dáil Éireann in January 2023.

It is anticipated that the legislation will be introduced at second stage in Dáil Éireann by Minister for Justice Simon Harris TD on the week beginning 20 February 2023.

The Bill, and its explanatory memorandum, can be read on the Oireachtas website at: https://www.oireachtas.ie/en/bills/bill/2023/3/

Some of the Bill’s core reforms:

The Bill represents the core reforms in policing and policing oversight arising from the recommendations from the Commission on the Future of Policing in 2018 in its The Future of Policing in Ireland report, and the resulting plan of reform launched by Government.

The Bill proposes wide-ranging restructuring of Garda management via the creation of a new Garda Board; the creation of a Policing and Community Safety Authority to replace the Policing Authority and Garda Inspectorate; and the creation of an Independent Examiner of Security Legislation.

Parts 5 and 6 of the Bill provide for significant reform of the Garda Síochána Ombudsman Commission (GSOC), expanding its powers as a civilian police oversight body, and strengthening its independence. Proposed changes include:

• The creation of an Office of the Police Ombudsman to replace GSOC, operating under the leadership of an Ombudsman and Deputy Ombudsman.
• Granting of increased financial independence to the new office by making it a vote-holding body funded directly by the Oireachtas with a new CEO as accounting officer.
• Introduction of a streamlined investigations procedure with strong constitutional and procedural safeguards, replacing the unwieldy and inefficient procedures currently provided for under the Garda Síochána Act 2005, the reform of which has been called for by GSOC, An Garda Síochána and the Commission on the Future of Policing.
• Provision that all complaints are to be referred to the new Office of the Police Ombudsman in the first instance. With the exception of a pre-approved and published list of service-level complaints, all complaints are to be dealt with by the new Office of the Police Ombudsman.
• Introduction of a statutory review function.
• Introduction of a new statutory function to undertake research and analysis to identify patterns and trends arising from complaints and investigations.
• Expansion of the definition of incidents of ‘serious harm’ to be investigated by the Office of the Police Ombudsman to include ‘sexual offences and abuse of power for sexual purposes (APSP)’.

GSOC’s Observations on the Bill

GSOC’s Observations on the Policing, Security and Community Safety Bill 2023 were published today, Thursday 9 February 2023.

GSOC’s ongoing core concerns include:

Restrictions on institutional independence in core Governance matters

The Bill still imposes a degree of Ministerial involvement in the governance and operations of the Police Ombudsman that is not consistent with the principle of institutional independence for Ombudsman institutions. This includes provisions preventing the Police Ombudsman from laying annual reports, strategy statements and other governance materials directly before the Oireachtas, and the obligation in statute to submit its governance framework to the Minster. These provisions are inconsistent with the standard practice of Ombudsman institutions in this jurisdiction and set the Police Ombudsman apart from like institutions in the state, serving to undermine its institutional independence.

The search of Garda Stations – a significant regression in oversight and investigative powers

Certain provisions within the draft Bill hand powers to the Garda Commissioner to block or overrule the operations and decision-making of the Police Ombudsman. Of particular concern are the provisions in the draft Bill for the search of Garda premises, which would now be subject to the authorisation of the Garda Commissioner. This provision represents a significant regression from the powers enjoyed by GSOC under the current Act. In addition to presenting unworkable practical difficulties, these provisions seriously undermine the principle of independent civilian oversight of policing.

Timeliness and guaranteeing Garda cooperation

The Bill places on the new Police Ombudsman an objective to ‘ensure that his or her functions are performed in a timely, efficient and effective manner and in accordance with fair procedures” Timely and efficient performance of functions relies heavily not only on resources, but on cooperation by other key actors. GSOC remains concerned that in the absence in this bill of an explicit obligation placed on such actors – not least An Garda Síochána – for timely and full cooperation with the Police Ombudsman, the new body’s ability to meet the objective of timeliness and efficiency may be compromised. GSOC is concerned that in this legislation, the Police Ombudsman is being held to a standard of ‘timeliness’ to which An Garda Síochána is not being held.

Potential limitations to the principle of automatic referral to the Police Ombudsman.

The Bill provides for all complaints to be referred automatically to the Police Ombudsman. However, however, the approach is subject to Ministerial review after three years.

GSOC is concerned that there is a risk that the review provision, as drafted, could result in significant categories of complaints being removed from the Police Ombudsman’s oversight as well as undermining the principle that Gardaí should not be investigating Gardaí. GSOC is concerned that these provisions place a three-year lifespan on what should be a fundamental and permanent reform – a statutory obligation on the Garda Commissioner to refer all complaints to the Police Ombudsman.

Resourcing and Staffing

GSOC has made clear that the expansion of the reformed body’s functions and competencies needs to be accompanied by a commensurate expansion of capacity in the form of resources, personnel and expertise that guarantee the ability to deliver them. GSOC notes that the matter of resourcing and staffing is the subject of ongoing discussion and engagement with the Department of Justice.

 The Venice Principles

The Venice Principles are a set of Council of Europe standards for the protection and promotion of ombudsman institutions. The Principles provide that states “shall support and protect the Ombudsman Institution and refrain from any action undermining its independence.” See Principles on the Protection and Promotion of the Ombudsman Institution (“The Venice Principles”)