Vol. 258 No. 14
asked the Minister for Justice if he is aware of a report (details supplied) to the effect that a foreign embassy, certain members of the Oireachtas, a trade union official and the headquarters of the Labour Party have their phones tapped; and if he will state whether or not this alleged phone tapping is taking place and if it represents Government policy.
41.
asked the Minister for Justice if he has seen a report in a national newspaper (name supplied) alleging that the telephones of one political party and of certain individuals, some of them members of the Oireachtas, are being tapped; if he will confirm or deny these allegations; and if he will make a statement on the matter.
42.
asked the Minister for Justice if the telephone of a certain member of the Oireachtas (name supplied) is or is not being tapped upon his instructions.
43.
asked the Minister for Justice if the telephone of a prominent trade union official (name supplied) is or is not being tapped on his instructions.
44.
asked the Minister for Justice what section of that Act of the Oireachtas or of the British Parliament is invoked in the authorisation for the tapping of telephones of telephone subscribers in the Republic of Ireland.
45.
asked the Minister for Justice if he will state the precise statutory authority invoked in the warrants for the tapping of telephones.
46.
asked the Minister for Justice the number of persons in the Republic of Ireland whose telephones are tapped upon his instructions; the proportion whose phones are tapped because of their alleged involvement in what are regarded as criminal activities; and the proportion whose telephones are tapped because of their alleged involvement in politically subversive activities.
47.
asked the Minister for Justice if with a view to ensuring no unnecessary interference with individual rights as a consequence of phone tapping and the inspection of letters in the course of post, he will appoint a commission to examine the procedures and practices of phone tapping and the inspection of mail by State agencies and others and, if deemed desirable, make appropriate recommendations for changes in these procedures to protect the public interest and individual rights.
48.
asked the Minister for Justice if he is aware of recent serious allegations in a Sunday newspaper concerning the practice of telephone tapping; and if he will make a statement on the matter, with particular reference to the allegation concerning the head office premises of a political party.
With your permission, a Cheann Comhairle, I propose to take Questions Nos. 40 to 48, inclusive, together.
The position relating to the monitoring of telephone calls has been explained in Dáil Éireann at various times over the past 22 years by Ministers in reply to Parliamentary Questions and it is clear, therefore, that there can be no possible ground for anybody claiming that the operation of such a system is not common public knowledge. What I understand to have been the first of these questions was answered as long ago as 15th December, 1949 (Volume 118, column 2380) and, so that nobody may be taken unawares, I mention in passing that the reply on that occasion was given by the present Leader of the Labour Party.
His reply stated that such monitoring took place in very exceptional cases where the public interest required it and then only in obedience to warrants issued by the Minister for Justice. The same is true today but the procedures in operation today to guard against any unnecessary or unjustified use of the system are even more stringent than those that were in operation then. On this point I would refer the House to my reply of 4th June, 1970 (Volume 247, column 565) which set out in detail the procedures adopted by me. I have maintained these procedures since.
The question of the legal authority has also been raised on a number of occasions, of which the first appears to have been on 20th November, 1957 (Volume 164, column 711), when the then Minister for Justice, dealing with a question that related to letters and telegrams as well as to telephone calls, replied to the effect that interceptions were made on the authority of the Minister for Justice in exercise of a long-standing power recognised in section 56 of the Post Office Act, 1908. I invite attention to the fact that what was said was that the power was recognised by the section, not that it was granted by it. The position, as far as I am concerned, is that the legal advice available to me is that the present practice is perfectly in order.
Turning to the question of allegations affecting particular cases, the position is that, since these latest allegations were made, I have stated specifically, in public, on radio and television, that no warrants have been issued by me in respect of any Member of the Oireachtas. The similar assurance given by the Taoiseach in this House on 9th May, 1970 (Volume 246, column 1332) was expressly declared to be limited to that occasion only and, in repeating it on this present occasion, I consider that I am going further than is strictly necessary. I am not prepared to extend the assurance to other categories of persons or to any organisation or group whatsoever. Initially, I was inclined to think that there might be something to be said for the proposition that an assurance given in respect of Members of the Oireachtas could, without leaving the way open for further extensions, reasonably be widened to include the headquarters telephones of the political parties to which these Members belong, and thus to the head office of the Labour Party. The issue was, however, quickly and conclusively settled as far as I was concerned by a letter sent to me by the Labour Party—with, I might mention, full Press publicity—the substance of which was that the officers of the Party sought not only an assurance that the telephone of the head office was not being tapped but also a separate assurance that the telephones of party officers or members of their National Executive were not tapped. This request illustrates better than any statement of mine why, if I were to extend beyond Members of the Oireachtas the assurance that has already been given, there would be demands to extend it further and further.
There was a specific allegation that I had signed a warrant in respect of Deputy Thornley's telephone. That allegation is untrue. Apart from that specific allegation, about which there can be no ambiguity, it has been suggested that, though I have said that no warrants have been issued by me in respect of Members of the Oireachtas, their telephones may be tapped irregularly by or at the behest of some members of the Garda Síochána. I want therefore to state categorically that I have long since inquired into such a possibility and I am satisfied that the system is such as to exclude it.
It has been emphasised, time and again, that warrants are issued only where this is necessary for security purposes or for the prevention or detection of serious crime, information as to which could be got in no other way. They have been issued by every Minister for Justice, and with the knowledge and approval of every Government, since the foundation of the State. It follows that each and every Government have accepted that this was necessary in the public interest and those whose duty it is to act under these warrants are discharging a duty of national importance. The only difference between present practice and the practice that had obtained down the years before my appointment is that I introduced additional safeguards. I am not implying, by this, that my predecessors in office were in any way lax in the issuing of warrants. The evidence available to me is that all of them, including those from both the Opposition parties, exercised these powers in a responsible way. The additional safeguards that I introduced are primarily designed to ensure that warrants are not allowed to remain in force even by inadvertence for any period beyond what is seriously necessary. I am satisfied that they achieve that objective and that the present system has all the safeguards that could be in any way necessary or appropriate. This being so, I see no reason to consider the appointment of a commission to deal with the matter.
The Minister indicated in his reply that power was recognised under a section of the Act, but not granted to him. Could he elaborate on that? What precise statutory authority has he? This all seems extraordinarily vague and, because of the seriousness of telephone tapping, would the Minister elaborate on that?
My advice is that there is no statutory authority for telephone tapping in the sense that there is no specific section of an Act dealing with telephone tapping, but there is a general residual common law power for this.
In view of the seriousness of such a security practice which, we know, is carried on and has been carried on by successive Governments, and because of the issue of civil rights and the need to protect the liberty of the individual, would the Minister not think that there should be separate legislation giving specific authority? It is not enough for the Minister to depend on residual statutory powers.
Common law.
Such powers could be and might be unconstitutional.
I do not think what the Deputy suggests is necessary. Both the Taoiseach and I have set out the safeguards. Indeed, my predecessors set them out in great detail. I am satisfied the power could not be abused. I should like to emphasise that the Minister for Justice cannot initiate the procedure; in other words, the request must be initiated elsewhere.
Just one final supplementary. I have two questions down. I do not accept the Minister's statement that he does not initiate the procedure. He can always ring up and they will ring back and ask him. Could I ask the Minister why Members of this House should receive a special public assurance? Why should they be above the law? Why this special assurance given to Deputies that their telephones are not being tapped? Why should we have this assurance and every other citizen be denied it? Have I the Minister's assurance that, if I ring the head office of the Labour Party, the telephone will not be tapped as, otherwise, quite frankly, I think we have an extraordinary political situation?
Use pigeons.
So far as individuals and organisations outside of this House are concerned, I have been asked time and again to give assurances in respect of them. I have explained time and again why I cannot do that. I cannot make any change in that position now. So far as assurances in relation to Members of the Oireachtas are concerned, the assurance was given for the first time by the Taoiseach and, I think, by me in the same debate on 9th May, 1970, as a result of allegations made by several Deputies——
Several Fianna Fáil Deputies.
Fianna Fáil Deputies.
—— that their telephones were being tapped. From time to time allegations have been made by various parties that telephones have been tapped and, because in the opinion of the Taoiseach and in my opinion also, it would be reprehensible to tap the telephone of one's political opponent for political purposes, the assurance was given.
Opponents?
The Taoiseach give——
It was the supporters who complained.
——that assurance at that time in relation to Members of the Oireachtas and that assurance still holds good.
Could I ask the Minister if he would indicate the authority his advisers relied on when they claimed this common law right and by what precedent or analogy do they derive this right? Quite clearly, they must derive it from some past practice which has been accepted in an analogous situation and would the Minister not agree this is a power best vested in the judiciary rather than in a Minister? It should be under judicial control and would he consider making the appropriate change in the arrangements?
Apart from being told there is this residual, presumably, common law power because all residual powers are common law powers, I cannot put it more specifically. When the Attorney General advises me on a complex matter of law, a matter on which I am not an expert, I accept his advice. That seems to be the reasonable and normal thing to do.
I should like to know the reasons for the advice. Could I ask the Minister what about transferring it to judicial control?
Why should not a judge countersign it with the Minister?
I am not altogether opposed to that suggestion but in my own experience I have had to sign some of these warrants at very, very short notice indeed and it might simply not be feasible to have a judge countersign. I do not want to enter into an argument on this because the point is really academic but, if prosecutions were to arise out of evidence secured through this operation, considerable problems might arise for the courts.
Only if the same judge were involved.
In view of that highly unsatisfactory answer by the Minister to Deputy FitzGerald may I say that the Minister quoted replies given to previous Parliamentary Questions on this subject, but he did not quote the reply given by Deputy Haughey, Minister for Justice, to a Parliamentary Question on telephone tapping on 23rd April, 1964. The reply is as follows:
I would refer the Deputy to section 56 of the Post Office Act, 1908 as to which an Adaptation Order was made by the President of the Executive Council on 19th July, 1926, under subsection (2) of section 11 of the Adaptation of Enactments Act, 1922, determining that the Minister for Justice is the appropriate Minister to exercise this function of issuing postal warrants.
Is this not the point? Could the Minister tell us now what statutory powers he has in respect of telephone tapping as opposed to this common law assumption that telephone tapping has the same status as postal warrants?
"None" is the answer to that.
As opposed to the orders quoted by Deputy Haughey, then Minister for Justice, in respect of postal warrants, what specific legal authority has the Minister to interpret his right in respect of postal warrants as extending to telephones?
The monopoly of the Post Office extends to posts and telecommunications and it has long been held—in fact since shortly after the invention of the telephone—that the powers which applied to postal packets in transmission applied also to telephone messages in transmission by telecommunications.
That is not in any legislation.
There is a case on it. I have the name but there is so much stuff here I cannot just turn it up.
There was a case that was not established?
Somebody against the Edison Telephone Company in 1880 or something.
In what country?
We have taken eight questions together and I think we are entitled to a little time. We have established one thing, that it is long since held.
Since time immemorial.
Could I ask the Minister, since his predecessor, Deputy Haughey, said in 1964 that the established practice is to give a warrant only where required for security purposes or the prevention or detection of serious crime information as to which could be got in no other way, in what way the head office of the Labour Party could be deemed to be involved in serious crime or subversion of security purposes? Will he not give the Labour Party the assurance requested, therefore? Finally, would the Minister not agree that—I do not possess his knowledge of the law and I do not know what his knowledge of technology is— when he says that it is impossible to tap a telephone in Ireland without his written warrant, this is simple nonsense, that it is child's play?
Taking the first supplementary first, it does presuppose that the telephone in the office of the Labour Party is tapped. I do not think the Deputy is entitled to make that presupposition.
I gather it is not but we want to know.
The question presupposes it and if I were to answer it on the lines I might have been expected to answer, it would make that presupposition. With regard to the fact that I say a phone cannot be tapped without my authority—and it is perfectly clear from my reply—I mean that no servant of the State legally and properly can tap a phone without my legal authority. But there is nothing to stop any individual who has nothing whatever to do with the Garda Síochána or the Post Office or the service of the State, with the modern gadgets they have now, from listening, I gather.
A nod is as good as a wink to a blind horse.
If the Deputy is suggesting that I or anybody else is suggesting to the Garda that they might tap phones in this way without reference to me, it is absolutely without foundation. I have not done that and I will not do it.
How does the Minister check that this cannot happen?
