Policing in a United Ireland: The Intractable Questions of Governance, Oversight and Accountability

ABSTRACT

This article considers the impact of a shared island on police governance, accountability and oversight. Having outlined a framework for conceptualising each of these terms, it provides a history of policing on the island and an overview of the current structures. It then turns its attention to what options exist for a shared island, from retention to mergers and the creation of new services. The intricacies of each are teased out, including both practical and political issues. It establishes how complex the issues are, and the ripple effects of slight changes. Ultimately the article argues that to ensure the legitimacy of the police and the effective achievement of policing and human rights goals, the creation of one or more new services, and the separation of state security, may be necessary.

INTRODUCTION

The potential for a shared island generates a great many questions about the impact on the administration of all aspects of the state. Policing is one such element, and one that will be deeply contentious. Policing in any context is, at its core, entwined with the politics and nature of the state. This has taken on an additional focus on this island. In both jurisdictions policing has been the subject of numerous scandals and controversy. More specifically, in Northern Ireland, it is regularly linked to fundamental questions of the legitimacy of the governance of the state and was a core element of nationalist concerns through the Troubles. Reforms of policing were one of the more contentious elements of the peace process, and the issue has not abated. In spring 2021 the legitimacy of the PSNI was brought into question by Arlene Foster and linked to intense street violence and destruction. Fundamental questions of governance, oversight and accountability are core to those concerns. The same questions have become equally contentious in Ireland for An Garda Síochána (AGS), where conversely, as argued elsewhere, the post-colonial nature of the state prevented the development of strong, independent structures, leading, inevitably, to embedded and institutionalised behaviours and practices within the police. For the past 20 years, scandals have been incessant.

It is therefore self-evident that in the realisation of a shared island, policing will be one of the more contentious issues, with different communities and groups having different concerns. A great deal of reflection, consideration and debate will be required in any attempt to move forward in ways that are acceptable to all. This piece intends to contribute to that considered debate.

Once one begins to reflect on the questions that policing a shared island would generate, a long list emerges. From symbolic elements such as names, emblems and uniforms to operational matters such as numbers, training, divisions, stations and units, to policy, standards and the need to reconcile differences in powers, procedures and legal requirements, the issues to be addressed are numerous. There is, for instance, no doubt that a police service with an Irish-language name would not be acceptable to the unionist community, just as mandatory training in the Irish language might be problematic. Many in Ireland would not wish to see the police routinely armed, as the PSNI are, but altering that may generate security risks. The basic functions of the two services are quite different, with state security named as one of the functions of AGS, while MI5 performs this role in Northern Ireland. There are many areas where procedure and regulation are far more advanced in the PSNI: a brief comparison of the codes surrounding treatment of persons in custody lays clear the difference in standards currently being applied across the island. And it is generally accepted that AGS has, in the main, an enviable relationship with the community and a personable means of engagement that is difficult to imagine north of the border, though allegations of discrimination and racism have been encountered by both services.

Unpacking this merits a series of articles in itself, each of which could and should generate responses and replies and spark the engagement of many to tease out these thorny issues. In this article I will focus specifically on governance, oversight and accountability. These issues are particularly intertwined with the democratic nature of the state, and indeed its own legitimacy. Whether or not people can have confidence in how the police are regulated and controlled is a core element of confidence in the nature of the state.

I will begin with an overview of the theoretical aspects of achieving regulation and governance of the police. I will then provide a history of policing on the island. This will be followed by an account of the current structures in place for both services, which look quite similar in lots of ways but have some core differences. Options for police governance, oversight and accountability on a shared island will then be explored, including an effort to highlight what might be the more problematic elements to reconcile. I will conclude that while retention of existing forces or indeed mergers are possible, for a system that people can have confidence in, the creation of one or more new services will be required. I also reiterate that this discussion of police regulation is just one element of the issues to be considered in terms of policing a shared island.

GOVERNANCE, OVERSIGHT AND ACCOUNTABILITY

Accountability … renders the police answerable for what they do. Thereby it prevents them from slipping into an enclosed fortress of inward thinking and social isolation which would in the long term result in a siege mentality – the police in their fortress (happy as long as it is secure) and the rest of us outside, unhappy, uncertain and insecure (for we do not know what they will do or how they will do it).¹

How to regulate and control those in power is a question asked for thousands of years: the question quis custodiet ipsos custodes?, meaning 'who will guard the guards?', is found in the Satires of the Roman poet Juvenal. While intended to relate to those in power, it takes on particular significance in the context of policing.

There are many reasons why we seek to regulate and control the police. The most evident is the power of the police: in order to ensure that they achieve their functions, we give the police very significant powers. Those functions are defined variously as maintaining order; preventing, investigating and detecting crime; protecting life and property; and protecting the human rights of all. In some states, such as Ireland, they also include maintaining the security of the state. The powers we give them to achieve those ends include arrest, detention, surveillance, taking of bodily samples, prosecuting, and so on. Police are permitted to infringe some of the most basic human rights, and, as many point out, they have a monopoly on the legitimate use of force in society.² And more broadly, police, as an institution have significant social power including the capacity to name activities and persons as wrong or criminal.³ When the police tell us there is a problem in relation to, for instance, drugs or knife crime, we tend to accept that, and support them in their efforts. Loader derives from this that

The symbolic power of the police has become the power of legitimate pronouncement: a power to diagnose, classify, authorize and represent both individuals and the world, and to have this power of 'legitimate naming' not just taken seriously, but taken-for-granted.⁴

Thus, legally, socially and politically the police are a very powerful institution.

Democratic states are built on checks and balance to ensure that power is used in line with the aims and beliefs of the state. Given that the police have some of the most substantial powers in society, it is a requirement of the democratic nature of the state that there are safeguards against how those powers are used. Indeed, the extent to which this is done is often connected to our understanding of the nature of a state: a failure to impose such checks and balances may be reminiscent of a police state, or we may question the extent to which the police control a particular state. Even within democratic states, when we examine moments of civil unrest there is often a concern about policing at their core—race riots in the UK in 1981 and the London riots of 2011 are two such examples.

There are further dimensions to policing that make the need for good governance and accountability all the stronger. First is that the police are recognised as having discretion in how they exercise their powers.⁵ Many scenarios are 'low visibility', seen only by the police officer and the individual concerned, and the police officer has choices. She could decide to stop or not, question or not, search or not, and whether to record it or not. The use of body-worn cameras may minimise that to a certain extent, although their impact is not fail-safe.⁶

Second, the occupational culture of policing influences how discretion is used.⁷ The culture is the set of norms or values that pervade policing, shaping how officers see the world and how they interact within it. Manning⁸ defined police culture as the 'accepted practices, rules and principles of conduct that are situationally applied, and generalized rationales and beliefs'. The culture is an important support for police, helping them to deal with the danger and demands of the role, but it can also negatively influence decisions on the use of powers. While there can be some variations in police culture, certain aspects of it have been found to be quite universal, irrespective of jurisdiction, stemming from the fundamental meaning and powers of the role. Reiner⁹ has identified the core characteristics as conservativism, machismo, pragmatism, isolation/solidarity, racism, suspicion, a sense of mission and a thirst for action. These characteristics are embedded in the institution at structural levels, and inter-generationally transmitted through on-the-job learning. They influence heat-of-the-moment decision-making, resulting in widespread racisms and machismo in police action. Scholars such as Chan¹⁰ have done significant work on the challenge of changing either that culture or policing within that culture. Mechanisms of governance and accountability are cornerstone elements of any effort to curb the negative influence of that culture and consequent misuses of powers.

Other reasons why checks and balances are required stem from justified concerns at how policing is done. Complaints mechanisms and miscarriage of justice verdicts provide ample evidence of police misconduct. Further, there is evidence that the implementation of human rights standards does not always have the desired effect. Bullock and Johnson¹¹ point out that on occasion these standards simply provide a language to justify how discretion has been utilised. This links to Smith and Gray's point that police culture interprets rules in different ways.¹² They distinguish between working rules, which are absorbed because they are congruent with the culture and self-identified role; presentational rules, which are complied with to give a veneer of legality to their work; and inhibitory rules, which are perceived as inhibiting or interfering with their ability to achieve their aims, and are less likely to be adhered to. Bearing this in mind, introducing rules does not ensure compliance or best-practice policing.

In light of this, and particularly in the context of a shared island, effective mechanisms of governance, oversight and accountability are essential not only to ensure legitimacy of and confidence in the police, but to help us continually move towards a system where policing is as good—by which I mean respectful of people and achieving its aims—as possible. This point can sometimes be forgotten: that the aim of oversight and accountability is effectively to make itself redundant.

What accountability means and how it is achieved are vexing questions that plague policing the world over. Swathes of academic research has explored what is meant by police accountability: to whom should the police be accountable, for what and how? Day and Klein suggest the term can cover a range of meanings, including 'answerability, responsiveness, openness, efficient estate management, not to mention participation and obedience to external laws'.¹³ Bowling and Foster state that 'It involves a duty to account for actions taken, to explain them, and for the police to be cooperative with an external, independent authority and ultimately with the wider community'.¹⁴ Bayley has defined an accountable police force as 'one whose actions, severally and collectively, are congruent with the values of the community in which it works and responsive to the discrepancies when they are pointed out'.¹⁵ Walsh and Conway have defined accountability in the policing context as 'all procedures and methods which can be deployed to render an individual police officer, and the police authority as whole, answerable to another person or body whether that person or body is located inside or outside the police force in question'.¹⁶

Being answerable to some independent body is therefore key, to enable understanding of what happened either individually or institutionally. Others argue that this is just one side to accountability, and that control is also a key part. Indeed, for Lustgarten this is key: 'what is really at issue is the degree of control various political institutions are to have over the police'.¹⁷ Chan specifically distinguished between two 'competing meanings' of police accountability: (i) controlling the police and (ii) demanding explanations for behaviour and actions.¹⁸ Thus literature from the late twentieth century disaggregated control and explanation. We can, perhaps more fruitfully, think of this as the difference between governance and accountability. Conway and Walsh defined governance as 'the procedures and methods aimed at ensuring the efficient discharge of the policing function'.¹⁹ This, we wrote, can include 'policy formation and implementation; the determination of priorities and strategies; deployment choices; the allocation of resources; the maintenance of standards; and internal discipline'. Thus while accountability seeks to provide answers and explanations after the fact, governance seeks to set out how policing should be done and regulate people and operations so that they operate as effectively as possible. Good governance should minimise (though it cannot negate) the need for accountability. Good accountability should inform good governance.

Oversight can be seen as an additional layer to assess on a day-to-day basis whether policing is abiding by governance requirements: it is not about explanation, but shoring up governance and, perhaps most simply, keeping police on their toes. The existence of systems that continually check whether procedures are being followed, without waiting for explanations to be required, is an important addition that oversight can make. Indeed, the existence of such a system, which does continual checks, which do not have powers of sanction, may attract a more engaged response from police, who are not inherently concerned about the disciplinary outcome of those checks.

Thus, theoretically at least, in an ideal scenario, systems of governance, oversight and accountability will operate together to deliver policing that adheres to effective standards and is transparent. While 'best policing' can be a highly subjective phrase, I use it here to refer to policing that is respectful and human rights compliant, that achieves its stated aims, that works with communities and that does so in an open and transparent manner.

THE HISTORY OF POLICING THE ISLAND

Before looking at how this theory applies in Northern/Ireland, I will provide the context of history, which is necessary for understanding police culture, the political context and the differences that emerge. The history of policing on the island is one of separation and mergers, with themes of colonialism and sectarianism as consistent features. Indeed, policing in Ireland was an experiment for the British, which became the model for the colonies. Robert Peel attempted to introduce a police force in London, but the ruling class rejected this as an invasion of their civil liberties. It was however deemed acceptable to trial in Ireland, and so the Dublin Police was created in 1786.²⁰ This was the first police force created in the British Empire. While there was some initial unrest and disquiet, the passing of the Act of Union in 1800 put paid to domestic objections and the Dublin Metropolitan Police (DMP) continued to exist until 1925. The Belfast Borough Police was created in 1800 and the Londonderry Borough Police in 1848. The Belfast force was disbanded in 1865 after a commission of inquiry found that senior officers were members of the Orange Order and the force was viewed as sectarian. The Derry force was disbanded in 1870 following sectarian riots and its inadequate response.

The Peace Preservation Act 1787 created responsive forces to quell disorder outside the cities. The Peace Preservation Force was supplemented with a constabulary in 1812, which performed crime investigation and detection functions.²¹ These forces merged in 1836, and became the Royal Irish Constabulary (RIC) in 1867 having defeated a Fenian uprising. By the 1880s it had grown to 14,000 men.²²

From 1870 to 1922, until partition, there were two forces on the island, the DMP and the RIC. These were colonial forces, structured, tasked and overseen in ways that were different to the domestic police forces that emerged in Britain in the 1830s.²³ Legislators in Westminster had been concerned for the impact on civil liberties and so from 1836 all police forces in England and Wales had watch committees, which had responsibility for establishing and maintaining local police forces, and performed oversight and accountability functions at that level. These were replaced in the 1960s by police authorities. Oversight and accountability were not, however, concerns for policing on the island of Ireland, where policing was designed to maintain order and quell rebellion and unrest. Accountability to the local community was not a concern. Thus the police were governed, overseen and accountable in a very top-down manner, directly answerable to government. Other differences that stemmed from colonialist concerns were that it was largely one national force, heavily armed, residing in barracks and trained along quite paramilitarist lines.²⁴

The history of policing in Ireland is not bedded in democratic values, or about service to the community. Indeed, when local concerns emerged in Belfast and Derry the answer was not to reform, but to disband and subsume within the RIC. Through the end of the nineteenth century and the War of Independence, the RIC became a much-hated force, seen as the political arm of the British state in Ireland.²⁵ It was the direct target for nationalist violence, members of the force were locally ostracised and the level of animosity was such that it could not continue in the new Ireland.

Partition in 1922 saw two new police forces emerge on the island with differing trajectories. As a newly independent, post-colonial state, Ireland sought to distance policing from what went before.²⁶ A police organising committee was created but, perhaps given that government had to establish a functioning administration for an entire state, it had just three weeks to conduct its task. As I have argued elsewhere, what we see in Ireland is largely a rebranding of policing.²⁷ Former members of the RIC were not permitted to join the new police unless they were personally trusted by the government. Thus some 97 per cent of recruits had no policing experience but had been members of the IRA. The force was given a new name; a new uniform; a dedication to Irish values such as language, religion and pioneerism; but in fact structures and organisation remained largely the same. Despite calls in parliament for watch committees, the political control of the force, the Civic Guard, was retained. Indeed, it was not until after a revolt in August 1922 that the force was disarmed. This is all quite common in post-colonial states, where fears as to the stability of the state engender a desire to control the police.²⁸ Little changed in terms of governance, oversight and accountability until the twenty-first century. AGS, which came into being in 1925 when the Civic Guard and the DMP merged, was politically controlled and overseen, accountable internally or to government, with minimal transparency about policies, standards and discipline.

North of the new border, a committee of inquiry was established in January 1921 to examine what would be needed to create a new force, including recruitment, conditions of service, composition, strength and cost.²⁹ Fourteen months later its interim report was accepted, and following the passing of the Constabulary Act of 1922 the RUC came into existence on 1 June 1922. Uniform and emblems remained largely the same as the RIC's, and RIC servicemen were permitted to join, forming 50 per cent of the new force. Indeed, reflecting demographics at the time, a third of places were reserved for Catholics, though this target was never reached.

The RUC remained an armed force. It remained similar to the RIC, including in terms of governance, oversight and accountability, until after an inquiry that examined the policing of the Civil Rights Movement in the late 1960s. The Police Act (Northern Ireland) 1970 created the Policing Authority for Northern Ireland, transferred military-type duties to the army and disarmed the force, although context would require that to be reversed within a year.

Until the 1970s both forces, AGS and RUC, remained colonial police services in terms of structure and regulation. They were militaristic in organisation, deeply hierarchical and answerable directly to government, and in no way to the community. The Troubles, a conflict bound up in that same colonial question, had significant consequences for police governance and accountability. In Northern Ireland, dissatisfaction with policing early in the conflict led to legislative changes that effectively converted the RUC from a colonial force to a domestic British police force.³⁰ In Ireland, however, the opposite was true. If anything, the danger of the Troubles, the threat to the state and the lives of gardaí, wrapped something of a cloak around the force.³¹ Requests for inquiries into allegations of a 'heavy gang' operating in the force were met with government unwillingness and clear statements that it was not for the government of the day to question the police.³² Politicians tripped over themselves to be the most effusive in their support for the police. And while groups were set up to examine garda procedures following cases like the Kerry Babies Case, in the main the recommendations, which would have offered safeguards and better regulation, were not implemented.

The Police and Criminal Evidence Act 1984, which applied in England, Wales and Northern Ireland, led to vast changes in policing standards, including permitting solicitors to attend police station interviews, but this was something not permitted in Ireland until 2015.³³ The Garda Síochána Complaints Board was established in 1986, but was just an under-resourced review body with all complaints investigated by gardaí. Accountability was said to be achieved through parliament, but Walsh (1998) clearly showed how ineffective this method was. It would take repeated scandals and the findings of the Morris Tribunal, which related to policing activities along the border, to see any significant change in governance and accountability structures for AGS in the early twenty-first century.³⁴

Policing was one of the more contentious dimensions of the peace process in Northern Ireland. Despite the revisions, perceptions abounded of discriminatory, violent, dismissive and collusionary policing of Catholic communities.³⁵ The Patten Commission heralded a new order, described by Ellison³⁶ as the blueprint for democratic policing. The scale of reform was immense, and in a short period of time Northern Ireland went from having one of the most controversial police forces to having an enviably democratic, governed and overseen police service. It should not be forgotten that the Good Friday Agreement made demands on the Irish state to ensure that policing in its own jurisdiction was equally committed to human rights. Indeed, this was a pivotal aspect of developments in governance and accountability for AGS.

While today the PSNI and AGS may seem like very distinct forces, this is not the case. Their histories are intertwined. Historically policing in Northern Ireland has more in common with Ireland than with England and Wales. It was only in 1970 that the shared colonial model was disrupted. And since then, the Troubles has been a shared policing task. While having more day-to-day impact for the RUC/PSNI, its effect on policing in Ireland has been substantial, if underappreciated.³⁷ For the past two decades, developments concerning governance and accountability have been inextricably linked through the Good Friday Agreement, which included the following description:

it is essential that policing structures and arrangements are such that the police service is professional, effective and efficient, fair and impartial, free from partisan political control; accountable, both under the law for its actions and to the community it serves; representative of the society it polices, and operates within a coherent and co-operative criminal justice system, which conforms with human rights norms … those structures and arrangements must be capable of maintaining law and order including responding effectively to crime and to any terrorist threat and to public order problems. A police service which cannot do so will fail to win public confidence and acceptance … any such structures and arrangements should be capable of delivering a policing service, in constructive and inclusive partnerships with the community at all levels, and with the maximum delegation of authority and responsibility, consistent with the foregoing principles. These arrangements should be based on principles of protection of human rights and professional integrity and should be unambiguously accepted and actively supported by the entire community.

CURRENT STRUCTURES

I will now provide an overview of the existing governance, oversight and accountability structures in both jurisdictions. On the face of it this appear quite similar: operational independence, a Policing Authority/Board, independent complaints bodies and inspectorates. However, on closer examination there are substantive differences. An understanding of these, in addition to more macro-constitutional questions of policing, is essential for conceptualising policing on a shared island.

Governance

Both jurisdictions primarily govern police conduct through legislation and statutory instruments, but we can see much more detail in the content of those in Northern Ireland. Legislation, as developed by government and the legislature, establishes issues such as the function of the police. The Police (Northern Ireland) Act 2000 sets out the functions of police officers, under s. 32, as to protect life and property, to preserve order, to prevent the commission of offences, and where an offence has been committed, to take measures to bring the offender to justice. The corresponding Irish legislation discusses the functions of the service rather than individual officers and has a lengthier list, which includes preserving peace and public order; protecting life and property; vindicating the human rights of each individual; protecting the security of the state; preventing crime; bringing criminals to justice, including by detecting and investigating crime; and regulating and controlling road traffic and improving road safety.³⁸ AGS is also designated as the state security body. In addition to this foundational legislation, extensive legislation regulates the powers of the police, be that general powers to arrest or more detailed legislation to conduct surveillance, take samples, search and seize, use force, and so on. This legislation is far more detailed and developed for the PSNI than it is for AGS.

The PSNI is subject to the guidance of the College of Policing, which produces best-practice standards in relation to all aspects of policing. There is no equivalent for AGS, where policy documents are developed internally and the commissioner issues what are called HQ directives. Very few of these are published, but the policy on public order policing, which has been published, is quite sparse.

In both jurisdictions the chief constable and commissioner enjoy what is called 'operational independence'.³⁹ They are empowered legislatively to direct and control the members of the organisation. So in terms of the day-to-day running they have independence in what they do. Government may set certain policies, or the oversight bodies may require certain outcomes, but it is for the commissioner or chief constable to decide how that is done or achieved. Most importantly, there cannot be any intervention on the policing of a particular situation. 2015 was in fact the first time this was set out in law in relation to AGS. This is, however, weaker in Ireland, where since 2005 the minister can issue directives concerning any matter relating to AGS. This has serious potential to undermine the operational independence of the Garda commissioner.

In terms of other elements of governance, in Ireland politicians still have quite significant powers. Government decides on the numbers of the police, the numbers of civilians on the budget and matters of estate such as the number of Garda stations, and has to approve expenses such as purchasing new cars or bicycles. Government appoints the Garda commissioner following a competition run by the Policing Authority (though it is intended to remove the Authority's involvement in the process), and only government can fire the commissioner. Government also appoints members of the Policing Authority, the Garda Síochána Ombudsman Commission (GSOC) and the inspectorate. In Northern Ireland the governance powers held by government are much more circumspect. Government may decide longterm policing objectives, and approves appointments of senior officers and appoints the independent members of the Policing Board.

In 2016 the Policing Authority was created in Ireland and assumed some roles previously held by government: appointing senior officers (superintendents, chief superintendents, assistant and deputy commissioners), setting targets for policing, and approving policing plans and strategy statements. In Northern Ireland the Policing Board holds greater governance powers. It appoints, and removes, the chief constable; it negotiates the budget for the police; it sets the performance targets and policing priorities. It should be noted that the Commission on the Future of Policing, with a number of members dissenting,⁴⁰ recommended that the governance functions held by the Authority should largely be transferred to a new, internal board within AGS.⁴¹ This board would have a role in corporate strategy and governance arrangements, manage performance of the commissioner and, among others, ensure the integrity of financial systems.

Governance of AGS is far more politically controlled. Government has defended this position by saying that AGS is also the security agency of the state and that Article 28 of the constitution places the executive power of the state in the hands of government. Executive powers, government argues, cannot be devolved.⁴²

Oversight

Primary oversight is delivered in both jurisdictions through the Policing Board (Northern Ireland)/Policing Authority (Ireland), though the composition, functions and powers differ in significant ways. While both bodies utilise the word 'policing' instead of 'police', they do so for different reasons. In Northern Ireland this was intended to ensure that the Board captured broader policing services in its work,⁴³ while in Ireland it was due to the remit of the Authority being limited to policing, and not security, functions of AGS.

The Policing Board comprises ten elected representatives, nominated in accordance with a formula set out in legislation, and nine independent members who are appointed by government. The Policing Authority has no elected representatives and is made up of individuals said to have the requisite knowledge and experience set, as established in the legislation. The inclusion of elected representatives is said to enhance the democratic nature of police oversight, whereas exclusion is said to depoliticise police oversight. Sinn Féin did not sign up to the Policing Board until 2007, and its doing so was an important step in legitimising police oversight in the North. On the flip side, the political stalemate that saw the collapse of the Stormont Assembly from 2017 to 2020 meant that the membership of the Board could not be appointed, and so the Board was inhibited from conducting most of its work during that period.

The functions of the two bodies are also quite distinct. The Policing Board is tasked with the maintenance of policing and its efficiency and effectiveness. It holds the chief constable to account. It monitors the work of the police in fulfilling its duties, complying with human rights and complying with the Policing Plan. It is to keep itself informed of complaints trends, crime trends, recruitment and diverse membership, as well as assessing the effectiveness of the code of ethics. There are to be eight meetings in public of the board with the commissioner. It monitors the exercise of functions by the National Crime Agency, which focuses on serious crime, in Northern Ireland. It approves the budget for the police and monitors spending. It sets and publishes outcomes and measures for the police. It also assesses public satisfaction with both the police and Police and Community Safety Partnerships. That said, there can be little doubt, despite the controversy of spring 2021 mentioned above, that the acceptability and legitimacy of the PSNI has advanced considerably since the mid-1990s.⁴⁴

The Policing Authority's primary function, per the legislation, is to oversee the performance of AGS in the provision of policing services. It approves AGS's three-year strategy statement, sets the annual policing priorities and performance targets, approves the annual policing plan and holds monthly meetings with the commissioner, at least four of which must be in public. It oversees the performance against both the plan and the strategy statement and it reviews arrangements and mechanisms for corporate governance, recruitment, training and development, performance measurement and accountability, management and deployment of resources. It makes senior appointments to AGS, developed the code of ethics, provides advice to the minister and has on a number of occasions been asked to oversee the implementation of recommendations in inquiries or inspectorate reports. It does not have the direct oversight of the budget, the specified role in relation to human rights or the number of meetings in public that are seen in Northern Ireland, nor is the commissioner accountable to it. Oversight of the budget is achieved via parliamentary committee, and AGS is not required to produce a costed or multi-annual policing plan. That said, the Authority has moved AGS into a different space in terms of oversight and transparency.

Oversight in both jurisdictions is supplemented by the fulfilment of an inspection function. For the PSNI, Her Majesty's Inspectorate of Constabulary, Fire and Rescue Services (HMICFRS) reports on the efficiency and effectiveness of the service every year. Further, the Criminal Justice Inspectorate for Northern Ireland conducts thematic inspections such as on the treatment of persons in custody (2020) or responses to child sexual abuse (2020), though these inspections consider the response of the criminal justice system as a whole. The Garda Síochána Inspectorate is an independent body that conducts independent, thematic inspections either of its own volition or at the request of the minister or the Authority. These inspections have been vital in giving some sense of everyday operations within AGS. The Inspectorate is due to be merged with the Authority under proposals from the Commission on the Future of Policing, which would enable better integration of its knowledge and recommendations with the oversight function.

In both jurisdictions local bodies also operate to enhance this oversight: in Northern Ireland the Policing and Community Safety Partnerships (PCSPs), and in Ireland Joint Policing Committees. PCSPs comprise local elected representatives and community members, and their functions include consulting and engaging with their local community on related issues of concern. They must identify and prioritise issues, and prepare plans for tackling them. They monitor the performance of the police and seek to achieve a reduction in crime and enhance community safety through interventions. Topping⁴⁵ argues that in effect they are little more than talking shops and 'the practicable degree of community input into local policing matters remains notional, rather than substantive'. Joint Policing Committees in Ireland similarly comprise both elected representatives and community members. They serve as a forum for consultations, discussions and recommendations on policing and crime issues. They review local levels of crime, meet at least twice a year and have one annual public meeting. Conway not only concluded that these were little more than talking shops but noted that legislatively they do not have powers to act in constructive ways, contribute to policing policy or oversee policing in any way.⁴⁶

Thus local efforts in both jurisdictions have been poor, but national efforts differ in key ways through the work of the Board and the Authority.

Accountability

Accountability of the police can, as previously mentioned, operate at different levels.⁴⁷ Police can be held to account through the courts, for criminal or civil wrongs or through the exclusion of evidence. Complaints bodies have a key role to play. Internal disciplinary mechanisms are also essential, although trust in police-led accountability can be limited.

At the organisational level it is important to note that while the Garda commissioner is legally accountable to government, the chief constable is accountable to the Policing Board. Political accountability can be problematic in that the decisions around when to hold the commissioner to account, for what and when might be driven by political factors rather than what is perhaps in the best interest of policing.⁴⁸ On the other hand, transparency is important: for us and the head of police to know for what they are accountable and how they will be judged. Is there a clear process by which they are evaluated for the performance of their functions? The Policing, Security and Community Safety Bill proposes to have the new internal board manage the commissioner's performance: head 25(5) states that the commissioner will be accountable to the board for the performance of their functions and head 28 states that they are accountable to government and the minister. The current bill is likely to bring significant changes to this space, but as drafted at present it is conflicting and confusing on how the accountability of the commissioner will operate.

As regards police complaints, independent bodies have been established in both jurisdictions. GSOC, which is overseen by three commissioners, handles complaints against AGS. GSOC has quite a convoluted legislative process for investigations. Complaints must be made within a year and must be deemed admissible for an investigation to occur. GSOC has stopped releasing certain statistics, but almost a third of complaints were being deemed inadmissible and not investigated. Once admitted, a complaint will be handled differently depending on whether it relates to a criminal matter or a disciplinary offence. Informal resolution is possible but makes up just a small percentage of cases. Data indicates that GSOC refers back disciplinary cases—some 40 per cent on most recent data—to AGS to conduct the investigation,⁴⁹ with independent investigations largely only occurring for criminal allegations. Moss has argued that this does not meet the desired standards of independent accountability.⁵⁰ Where it does investigations it has full police powers to support that work. Delays are an issue and concerns relating to outcomes are commonplace, as GSOC is limited to determining whether a crime or a breach of discipline occurred and not whether policies or training, for instance, were insufficient. The Commission on the Future of Policing in Ireland (CoFPI) recommended a broadening of GSOC's remit to ensure that all investigations are conducted independently and that it considers the incident, rather than just the officer's specific conduct.⁵¹

In Northern Ireland complaints are handled by the Office of the Police Ombudsman for Northern Ireland (OPONI). OPONI investigates all complaints independently, and no cases are returned to the PSNI for investigation. It has struggled at times in relation to the handling of legacy cases that have been assigned to it for investigation. Unlike its counterpart in the Irish republic, it undertakes an annual survey of satisfaction with the office, the most recent of which (2021) found that 73 per cent felt they were treated with respect, 57 per cent felt they were treated fairly, 28 per cent believed their complaint had been handled independently, 25 per cent believed the advice they received was unsatisfactory, one quarter were happy with how they were kept up to date, 23 per cent were dissatisfied with how the complaint was handled and ultimately 44 per cent said they would not contact the office again.

Walsh has argued that in neither scenario has satisfaction been reached, with just 3 per cent of complaints in Ireland resulting in disciplinary sanction, and just 5 per cent in Northern Ireland.⁵² He also cites the reliance on former police to conduct investigations, which is not in line with human rights requirements, and has raised concerns as to the vigorousness of investigations. He continues:

Arguably, the police complaints systems in Britain and Ireland have always been the subject of regulatory capture at both levels from their inception and right through the successive waves of reforms.⁵³

We can see therefore that police governance, oversight and accountability has been subject to vast reform on the island in the past 25 years. Numerous mechanisms have been instituted, with substantive differences between the two jurisdictions. In Ireland, continued scandal gave way to the establishment of the Commission on the Future of Policing in 2017 and little in terms of reform has been seen since the publication of its report in 2018. And in Northern Ireland, while serious advances have been seen in terms of human rights compliance, allegations of political policing have begun to dog the institution.⁵⁴ Ongoing legacy issues and the impact of Brexit also pose serious threats to sustained police change.⁵⁵

A SHARED ISLAND

Into this space of scandal, reform and critique, and such a merged history of policing, comes the question of a shared island. The impact of this on policing is a thorny question. There will be entrenched political perspectives, as well as very practical points to be worked through. To reiterate, while the question of policing on a shared Ireland raises a great many questions (name, uniform, language, symbols, function, among others), this piece focuses specifically on what it might mean for systems of governance, oversight and accountability.

A range of questions emerge, from how existing differences between the two will be resolved or accommodated to who will make decisions about policing in the future. Based on what has been discussed in the preceding sections, I now present some of the key questions that emerge in relation to these specific issues, followed by a discussion of the options that present themselves. I have attempted to be thorough in considering those options, and so while some may seem highly unlikely, I still attempt to tease out what they would mean for policing on the island.

Governance questions:

• • What powers will government have in controlling policing?

• • What powers will the authority or board have?

• • Who will set standards? Will there be a College of Policing equivalent in Ireland?

• • Who will appoint senior officers?

• • Will the commissioner/chief constable retain operational independence?

• • Who will decide key questions such as size and pay?

• • Given the influence of the security function on structures for AGS, what will happen in relation to that?

• • How transparent will these processes be?

Oversight questions:

• • What will the composition of the oversight body be?

• • Will politicians be involved? How independent will it be?

• • What functions and powers will it have?

• • How will oversight at the local level be achieved?

Accountability questions:

• • To whom will the commissioner/chief constable be accountable?

• • How many different bodies will be involved in accountability?

• • Is the system sufficiently robust to meet human rights standards?

• • How will legacy issues on both side of the border be resolved?

• • How will independence be assured?

These questions will need to be addressed and integrated into whatever overarching structures are put in place for policing on the island. I will now review the structural options and consider what these might mean for governance, oversight and accountability. This all must be considered in the context of what a shared island would mean for policing requirements: one might foresee that certain policing activities would be need to be enhanced (paramilitary or public order) while others (smuggling and other cross-border crime) would be minimised by way of context. Further, the removal of the need for cross-border policing structures such as arrest warrants, hot pursuit, and data and intelligence sharing would save significant time and enhance agility.

In teasing this out I have identified six potential options for police governance, oversight and accountability on a shared island. At the heart of this is a recognition that if the island is to be truly shared, there must be a clear sense of equality and consistency in its policing. Significant differences in how governance, accountability and oversight occur will cut straight to the heart of the legitimacy of the police⁵⁶ and will not engender a sense of a 'shared' island.

Option 1: Two separate forces, overseen by two policing boards, reporting to one minister

This is an attractive, minimalist intervention option, whereby existing structures are largely retained and the Policing Authority and the Policing Board report to one minister rather than two. However, on closer inspection it is not so straightforward. As it stands, the role of both the ministers and the Board/Authority are quite different. Differences include who appoints the commissioner/chief constable, to whom they are accountable, how budgets are allocated. Further, the differences in the composition of the Board/Authority would come into sharp focus, with one involving politicians and the other not. Retaining these structures would mean that we had two forces in the same jurisdiction governed and overseen in tangibly different ways. It might be possible to justify differences given the context, but this might also, in time, at best create confusion or at worst undermine confidence in the legitimacy of policing.

If significantly different decisions were being made across the two forces it might well bring into sharp public gaze the consequences of those differences: for example, because of political involvement on the northern board oversight would be less effective, or standards would be less developed and professional in Ireland. For instance, the command structures and related training for public order incidents are much more developed for the PSNI than they are for AGS. It is foreseeable that this would become a particular pinch point for some time on a shared island, and different policies and responses in different parts of the island might raise real questions as to effectiveness. If public order incidents in Belfast and Cork are being policed differently because of differently developed policies and overseen differently, genuine questions as to the equal treatment of members of the public will emerge. Differential practice, and differential experience of policing, could be a substantive issue in this scenario as both oversight bodies follow their own remit and agenda. There could be very serious consequences for police legitimacy in this scenario.

At a higher level, should a more macro level issue emerge, such as allegations of collusion between the two heads of police, the differences in how they were held to account would be striking. In the north this would occur at Policing Board meetings; in the south it would be in private meetings with the minister. The differences in transparency would likely generate public outcry: a feeling either that one was not held to account or that the other was overly accountable.

Thus, while a minimalist approach may be preferable in the immediate throes of unification, it is submitted that concerns would quickly emerge about consistency and equality of experience and two separate oversight bodies that take different approaches would not be helpful in that. Thus, even to retain the two bodies it would be necessary to align them, and address some of the fundamental differences that currently exist in wider structures of governance, oversight and accountability.

Option 2: Two separate forces, overseen by one policing board, reporting to one minister

This option eliminates some of the above concerns by replacing the Policing Board and Policing Authority with one national oversight body. Differences between the two forces in terms of governance and oversight might be minimised through this approach. Public meetings of the body would hear from both forces. The body would have a substantive oversight role to perform in such a space to compare, analyse and devise action plans to ensure that all members of the public on the island were well and fairly policed. This has the potential to balance local attachment to pre-existing forces, while trying to achieve a shared experience of policing. However, in order for this to work, many of the questions outlined above would need to be answered. Choices would need to be made in terms of composition of the body (politicians or independent), functions and duties, as well as agreement on the roles of the minister and government.

Indeed, a merged oversight body inherently only addresses the issue of oversight. We would still be faced with questions of governance and accountability. We would, for instance, still need to resolve who develops the standards of policing: the PSNI would no longer be under the jurisdiction of the College of Policing. Would it be required to adopt all AGS standards and processes as part of new governance arrangements? Having just one oversight body does not resolve the difference in terms of the accountability of the head of the police service. If the Garda commissioner is accountable to the minister, but the chief constable is accountable to the unified oversight body, the same concerns as discussed in relation to Option 1 persist.

It would also be necessary to resolve the question of who performs state security functions. Given how the Irish government has linked this point so deeply to governance and accountability, it will be a central issue that has ripple effects for other structures and functions. Sinn Féin has publicly declared that it would like to see the security function moved from MI5 to the PSNI, so in a situation of retention of both forces, under singular structures, this might be acceptable. If security remained part of AGS, the previously stated government argument that this requires that the commissioner be accountable to government would also stand. For the equality and consistency that a shared island would necessitate, this would mean the chief constable becoming accountable to the minister for justice. Making the chief constable politically accountable might be difficult for Northern Ireland as a whole, where independent accountability has become the norm over the past 20 years. That it would be to a 'southern' minister for justice might be all the more unpalatable for a unionist community. Consideration might need to be given to divesting AGS of the state security function, as the Irish government has tied this so directly to accountability. This would raise further questions as to whether one or two state security bodies would be required, given that MI5 could no longer operate in the north. Separating security could create a more even terrain for mapping governance and accountability structures. In this scenario the oversight body could take responsibility for appointment of and accountability of the commissioner and the chief constable. Mirroring these processes would be essential for legitimacy.

Having two forces in one state can have benefits as well, such as being able to bring officers from another force to conduct certain investigations or reviews, perhaps of the commissioner's behaviour, or to ensure that all appropriate standards have been applied in a specific investigation. This is something of a difficulty for AGS at present, but not for the PSNI. If we can achieve a state of largely uniform policies and practices, and public comfort with the oversight mechanisms, there may be much that appeals about this approach.

On the other hand, the existence of two forces, for a public that has been accustomed to a unified force in their respective jurisdictions, might be somewhat jarring. While moving from one part of the country to another, seeing police with different uniforms, symbols, transport and weapons might create a sense that these are still two different jurisdictions. Indeed, there are pronounced visual differences between the two: PSNI stations often have very high walls, and protective features to prevent attack, and vehicles such as their Land Rovers can look quite tank-like. For AGS, on the other hand, stations are often old country houses and many are in very poor condition. These visual differences can contribute to quite different sentiment and public responsiveness, and are deeply connected to experiences of policing. Added to this, the complexity of senior accountability and state security might cause this disarmingly simple-seeming option to be too difficult in practice.

Option 3: PSNI merged into AGS, without rebranding

Unlike Great Britain, this island has a history of unified policing. For 100 years there has been one police force in each jurisdiction, and prior to that there were generally two: the DMP for Dublin and the RIC for everywhere else. Indeed, experiments with local forces in Belfast and Derry failed. A unified force brings, in theory at least, consistency, clear standards and equality of expectation. Unifying the police may indeed be essential for the true unification of the island. Given that police are the arm of the state on the ground, creating consistency in policing may be key to that transition. If we reflect on the centrality of the police to the concept of the state in the 1920s, we can see the potential significance of unification.

Unification could be done in different ways. I have described above how in 1920s Ireland, the move from the RIC to AGS was largely a rebranding, with visuals changed but structures and standards retained. The transition from the RUC to the PSNI showed, on the other hand, the power that symbols can hold. Thus, requiring the PSNI to convert to all the symbols of AGS may be a step too far for unionist communities. One option therefore might be to merge the two services on a structural and organisational level, while maintaining all the symbols and 'branding' of the PSNI.

While unifying the police may feel like a natural post-colonial response, to rid the island of imposed divisions, to do so while maintaining the 'branding' dimensions may not sufficiently aid the public experience. As described under Option 2, the visual presentation of the two forces differs substantially and there might not be public acceptance of the merger without this rebranding.

This approach and the next may also raise questions of lustration, or replacement of staff.⁵⁷ There might be those who do not wish to work within a merged organisation, for ideological or even practical reasons. A unified force would, for instance, bring the potential for movement across the whole island (from Cork to Derry, or from Belfast to Clare), with the added dimension of a member wearing different uniforms depending on where they served. The potential range of transfer, or the inhabiting of the other symbols, might deter many from wishing to be part of a unified police service.

Other practical aspects such as pay, promotion mechanisms and pensions might also generate issues. Adjustments would need to be made by AGS: achieving levels of Catholic and Protestant membership has been an issue in Northern Ireland that might need to be revisited in this scenario. Given the merger, there would be one commissioner (using the Irish rather than Northern Irish terminology) and so acceptance of political accountability structures, non-political oversight and police-led state security would all arise. It is submitted that this option offers limited benefit: the merger would be less visible and potentially confusing for the public and members alike, while accountability and governance structures might abound.

Option 4: PSNI subsumed into AGS or vice versa, with rebranding

Merging the forces and simultaneously addressing the visible differences could occur in a number of ways. Given that AGS is the larger force, the inclination may be to suggest that the PSNI could be brought within AGS. While this might eliminate any visible differences, it might be an unacceptable option to many. Politically, it is difficult to imagine unionist communities being comfortable being policed by AGS. The Irish-language name might be problematic, as well as other elements of the symbols and structures. We recall the incident in 1986 where Peter Robinson was involved in an attack on a Garda station close to the border. Also, many who had joined the RUC or the PSNI might be uncomfortable working under the title of AGS for various reasons, although secondment processes have operated across the two jurisdictions for some time now.

Alternatively, AGS could be subsumed within PSNI. This would certainly be seen as a strong act of conciliation. Many standards and policies are more detailed and professional within the PSNI, and so it might bring benefits for policing. However, there is no denying that visibly PSNI is more paramilitaristic⁵⁸ than AGS, from uniforms to vehicles and stations, and this is manifested in the nature of relationships with communities. Many might fear that what they perceive as the intrinsic nature of policing in AGS—its strong relationships with communities—could be lost, though whether this is the reality of policing in Ireland is debatable. And while it may not be prudent to discount options for fear of how others may react, any inclination to pursue this option would, perhaps more than others, require close consultation with communities, police and politicians alike. Sensitivities must be respected.

In either merger scenario, it is assumed that one force will fall into line with the mechanisms of governance and accountability of the other, and the related sensitivities. Security would, it is submitted, need to be separated out. And even in the unlikely scenario that AGS is merged into PSNI, in a united Ireland it is assumed that the Irish constitution (as possibly amended) and the Irish legal system would prevail. The training of PSNI staff in Irish laws, constitution, practices and mechanisms would need to be realised while maintaining full policing presence in Northern Ireland. A transitional period would undoubtedly be required, and perhaps cross-movement of personnel. Either version of this option may require too much of the more prominently 'other' community.⁵⁹ Thus movement to a space of a new service, or new services, may be preferable and will now be considered in options 5 and 6.

Option 5: New service created

A further option is, out of deference primarily to unionist concerns, to create a new police service, something like the Police Service of Ireland. This would overcome issues of branding, and any sense of one community becoming deferential to another tradition of policing. Unification could be used as a moment to demarcate policing, to shift the symbolic elements such as name, uniform and insignia but also to devise structures and approaches that rise above the traditions of either jurisdiction. Properly designed, this could lift the best of each police force while stripping away what is problematic.

Opposition to this proposal might emanate from many Irish people who see AGS as one of the greater achievements of the Irish state, evidenced by unusually high confidence in the service as expressed annually in surveys. However, this is not the universal experience, as evidenced in the Policed in Ireland podcast, and for many in Ireland, where policing has been dogged by scandals over the past two decades, the opportunity to start anew might increasingly be welcomed. It might also be interpreted as an appropriate compromise and gesture of reconciliation towards unionist communities.

In terms of governance and accountability, it would again create a space for reflection on the best and worst of both systems. A frustration may be that Northern Ireland underwent an enormous review via the Patten Commission less than 25 years ago, and Ireland's Commission on the Future of Policing published its report only in 2018. Substantial effort and resources went into both, on top of which, for members of the forces, endless reform can be bad for morale. This is, however, a fact that must be acknowledged and worked with given that reform will be required whatever option is pursued. Indeed, given that the past two decades have involved a torrent of scandal and reform for AGS, a fresh start such as this might be desirable to many.

Option 6: New services created

A further option is to create not just a new service, but new services. A singular national police service is often seen in post-colonial contexts where there is a political concern to retain control of the police in a fragile state.⁶⁰ The opportunity could be taken to de-nationalise policing and create a service that is less hierarchical. One might imagine four or five police services (based on the four provinces, plus an additional service for Dublin due to population). This could create benefits whereby it was easier for a service to move in an agile way to respond to the needs of its community. It would also mean that Ireland had other forces that could be drawn on for investigations and so on. Ireland is relatively unusual in Europe in having one police service. British neighbours have differing experiences on this: England and Wales have retained a steady number of police forces since the 1960s (~40), whereas Scotland has recently moved from eight separate services to a single national service.

This option would involve a thorough reconceptualising of governance and accountability. In England and Wales each police force has its own oversight body, though the inspectorate and complaints bodies operate on a national basis. There would be multiple commissioners, budgets, strategic plans, annual reports and so on. This could potentially be overwhelming for one national oversight body, though, given the size of the country, a single body might be viable. This would also be best for the achievement of consistency across the services. It is perhaps the closest option to the proposal made by Deputy Jim O'Callaghan, former Fianna Fáil spokesperson for justice, in a 2021 speech on reunification in which he spoke of regionalised police services reporting to one national policing authority.

CONCLUSION: A PHASED APPROACH

The prospect of a shared island generates many questions, just one of which is how the island should be policed. This article has considered one dimension of that policing: how it will be governed, overseen and held to account. I have outlined the impact and importance of strong structures to achieve this, and set out the historical context of policing on the island. A recognition that that history is marked by change is essential. There is no system in existence that is deeply entrenched, and deeply successful: a context that creates space for further change. And through examining the current systems, and the differences that exist between them, it becomes clear that change will be needed for policing on a shared island. The legitimacy of the police will be at stake if we do not move towards a space of consistency and equality for all on the island. This, perhaps more than anything, underlies how these discussions should proceed.

I have explored what I see as the six potential ways in which this issue could develop on a shared island: from retaining the current forces to mergers, to the creation of one or more new services. Each brings challenges, but there are strengths to be noted in some. I suggest however that both retention and mergers will become overly imbued with political issues, especially around these very issues of governance and accountability. The current structures differ so significantly that for one to align with the other in a way that maintains community confidence and police legitimacy will be overly taxing. Thus the creation of one or more new services may be the only way to move through those deeply embedded political issues to a space of policing that is acceptable to most.

Whichever approach is opted for, two things are certain: firstly, time will be required to plan for this, to consult with society, to make sensible decisions, to socialise plans and achieve buy-in from communities; and secondly, a phased approach will undoubtedly be required and it should be planned accordingly, if only to address the training of members that will be required in a different legal system, bringing IT systems up to date, modifying governance and accountability structures and so on. A failure to plan will inevitably lead to situations that delegitimise policing. In the same way that the consequences for state security will need to be worked through, there will have to be consideration of how legacy issues are to be handled.

All this debate creates an opportunity to reflect on broader questions. It is a space to connect to debates around 'defund the police', race and gender, and how trauma-informed our policing is. It is an opportunity to develop a police service befitting a modern society, not just a shared island. This is an opportunity that should be seized. Ultimately it is a moment to make decisions on what will lead to better, more democratic, more empathic, more human rights-based and more effective policing.