Amendment No. 1 in the name of Deputy Harney. I observe that amendments Nos. 3, a3b, 3b and 9 are related, and amendment No. a3a is an alternative to amendment No. 3. I suggest, therefore, that we discuss the amendments I have outlined together. Is that agreed? Agreed.
Interception of Postal Packets and Telecommunications Messages (Regulation) Bill, 1992 [ Seanad: ] Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 3, line 20, after "message" to insert "including a message reproduced by electro-magnetic radiation, including fibre-optics, microwave or radio".
My party was part of the Government that produced this Bill and, therefore, the amendments I am moving are not substantial. Agreement to introduce such a Bill was part of the Programme for Government both in 1989 and in 1991.
My decision to move these amendments was prompted by reading the very good debate on this Bill in the Seanad and the amendments proposed by the then Senators Upton and Costello. I have taken on board their precise amendments because they were so appropriate. Neither Deputy is here now, but since they felt so strongly about the matter in the Seanad I am sure they feel equally strongly now. They are right. We need to broaden the definition of "communication". I note the attitude adopted by the Minister of State in the Seanad when he said there was no definition of "communication" either in this Bill or in the 1983 Act. We had to go back to the Telegraph Act, 1869, which defines "telegram" as meaning " ... any message or other communication for transmission by telegraph".
He went on to say:
The term "telegraph" is defined in the same Act as including any apparatus for transmitting messages or other communications by way of electric signals. That definition is understood to be wide enough to cover a system of electric signals with or without wires. ... Therefore, it appears that "telecommunications" includes a message propagated by electro-magnetic radiation including fibre-optics, microwave or radio.
The Minister felt that the definition had evolved on the basis of case law. It is not enough to assume it covers matters transmitted by way of electric signals; we need to be quite specific. I propose this amendment to broaden the definition to ensure that messages reproduced by way of electro-magnetic radiation, including fibre-optics, microwave or radio are included.
It is also significant that it is extremely easy to intercept messages transmitted in this way, far easier than messages transmitted by hard wire systems. The Ceann Comhairle stated that we could take all these amendments together because they are similar, yet they are different. I propose later to move an amendment to put definitions of "communications" and "interception" into the 1983 Act. A definition of either does not appear in that Act.
I accept what the Minister said on Committee Stage in the other House and also on Second Stage here that it may be better to assume a definition. I do not accept that. We will not have an opportunity in the foreseeable future to amend the 1983 Telecommunications Act and we must use this opportunity to ensure that we have the most modern legislation in this area.
The Ceann Comhairle indicated that amendment No. 3b is similar. Is that the case?
The Deputy is correct.
I would have thought it was similar. That amendment addresses the question of bugging devices and electronic eavesdropping devices.
On a point of order, there seems to be some confusion. The list I have indicates that amendment No. 3b is in my name and that of Deputy Browne (Carlow-Kilkenny). Is that the amendment the Ceann Comhairle indicated was related?
The Ceann Comhairle indicated that amendments Nos. 3, a3b, 3b and 9 are related.
As I understand it, amendment No. 3b is Deputy Mitchell's amendment which is substantially similar to the one being proposed by Deputy Harney. Deputy Harney's additional amendment relating to eavesdropping devices is amendment No. a3b.
The amendments grouped with amendment No. 1 will be moved as we come to them.
I apologise, I did not have the additional amendments.
It is important that we have a precise definition and know exactly what we are discussing. While the Minister requested his Department, Telecom Éireann and the Department of Communications to examine this matter between Committee and Report Stages in the Seanad, the fact that the Minister was using phrases such as "we understand something is covered" is simply not good enough. We need to be certain. Members of one party now in Government felt strongly enough about that to move amendments both on Committee Stage and on Report Stage.
I note that there are two amendments in the name of Deputy Gallagher. It is unusual for Government backbenchers to propose amendments to legislation. Can I assume the Minister is accepting these amendments? It seems strange that a party which tabled so many amendments a few months ago should restrict themselves to two amendments that are very similar. The then Senators expressed dissatisfaction in relation to the official response to some of those amendments. When I noticed the two amendments proposed by Deputy Gallagher I thought that they would be accepted. Perhaps it is my cynical mind. This covers the optics of what was involved. I see the Minister of State is nodding.
We have had a number of Bills from the Department of Justice since this Dáil assembled. The Minister of State is more than capable of taking them and I pay tribute to the manner in which he deals with legislation. However, the Minister of State tends to deal with difficult work such as long and tedious Committee Stage debates on virtually every Bill emanating from the Department of Justice. It is the Department that deals with most legislation. I mention that by way of a marker and wonder will we ever see the Minister in this House on Committee Stage of any legislation. From my own experience I know that Ministers of State are restricted in the kind of amendments they can accept. I make the point not by way of criticism. It has been a feature of this Dáil that the Minister for Justice has not come into the House to take Committee Stage of any of the Bills so far. I hope that will not be a feature of the next couple of years.
I presume we can take it that the Minister of State is the Minister's devil, to use legal terminology.
I was a devil once, I will be a devil today.
If it is agreed, I will speak to amendments Nos. a3a and a3b at the same time. Those amendments were raised in the Seanad where the Minister gave an undertaking, particularly in relation to amendment No. a3a that he would examine the question of the ascertainment of the contents of a postal package without opening it by electronic means or otherwise. I understand an advanced system is in operation which enables this to be done at present. As vice-chairman of the Dáil Committee on Crime, Lawlessness and Vandalism I visited Garda headquarters to see some of their modern equipment. From an indentation on paper the Garda can suck through evidence which they can use in ascertaining the origins of a letter or parcel. I understand it is possible to read a card or telemessage which is in an envelope by means of electronic equipment without opening the envelope. The Minister gave an undertaking in the Seanad that he would examine this matter. Therefore, I ask him to inform the House of the position at present.
In regard to the word "telegram", in amendment No. 3b I propose that the words "and also includes a message propagated by electro-magnetic radiation including fibre-optics, microwave or radio" be inserted. This matter was also raised in the Seanad. Has the Minister had an opportunity to consider it? By and large, this is a worthwhile democratic exercise. The necessary checks and balances are being put in place. However, if we do that in relation to the Minister, who is accountable to this House and as a member of the Government is charged with serious security duties we should also put in place checks and balances in regard to other power bases to which similar constraints do not apply. Those are the people who would be clamouring to have the rights which the Minister enjoyed in the past restricted. I have put down an amendment to deal with that matter, although I do not know if it is strictly within the scope of the Bill.
It is a strange democracy that makes a Minister, who is a democratically elected and accountable person, go through those necessary checks and balances when, for example, some sections of the media can, with apparent impunity, record and broadcast private conversations not alone between politicians but, as I read in a recent Sunday newspaper, between a business woman and her solicitor or professional adviser. That is a very distasteful practice. Therefore, as we are putting those restrictions on ourselves, we might ask the National Union of Journalists to introduce similar ethics because they are also a powerful group. At least, the Minister is accountable to this House and I welcome the putting in place of those checks and balances, but other professions should examine their ethics and the way in which they infringe people's privacy. The community would benefit from open and public debate in this regard and the leadership should come from this House and from the National Union of Journalists.
I rise to speak on amendment No. 3 in the name of Deputy Gilmore which is, word for word, similar to the amendment which Deputy Gay Mitchell put down, No. a3a. Therefore, it is pointless going over in detail what has been said by Deputy Mitchell other than to say it is clear that the technology exists for ascertaining the contents of a letter without opening it. Therefore, the definition of interception must be expanded to include the possibility of discovering the contents of a letter by electronic interception. The day when letters are opened by steam from a kettle on a gas cooker is gone, except perhaps in certain circumstances in the home. It makes sense that the definition of the word "interception" should be expanded, although that may not be adequate unless this provision is included in the attempted opening of postal packets. I understand from reading the newspapers that it is possible to insert a pen or a letter opener in the corner of an envelope, wind the letter inside that envelope around the pencil or letter opener and extract it.
(Carlow-Kilkenny): I hope the Deputy has not tried that.
I have not tried to do it, but I wonder if that type of activity will be covered by the present definition of the word "interception".
(Carlow-Kilkenny): In introducing a Bill such as this, we should provide for the future. In the age of electronics and with the advance of science, if possible, a global term should be used to cover any future technology which may be introduced. Amendment No. a3a, which refers to the ascertainment of the contents of a postal package without opening it, covers what is taking place at present with the aid of scanning devices and something that may happen in the future and would prevent the advance of science defeating the purpose of this Bill. If this amendment helps to advance prevention because of future scientific discoveries it would be an asset to the Bill.
I have a long official response which I will read into the record of the House, but first I will deal briefly with some of the points which were made. This group of amendments relate to the two methods by which communications can be intercepted, the interception of a message transmitted through telecommunications or through the postal system. Deputies are correct in saying both those points were raised in the Seanad. Not only have I examined those matters since then, but I have consulted with the Department of Transport, Energy and Communications and Bord Telecom who are the experts in regard to such technology. In relation to telecommunications, Deputies Harney, Gilmore and Mitchell want to expand the definition of telecommunication to include fibre optics signals and so on. Deputy Harney said that she wanted the word "communications" defined. The word "communications" is defined as a postal package or a telecommunication message. The term "telecommunication" is not defined, but that is only a small point.
I consulted with the legal people in Bord Telecom and the Department of Transport, Energy and Communications and they stated that the term "communications" should not be defined, but deliberately left as broad as possible. They believe that not alone is it wide enough to cover matters mentioned in the amendments, but it will cover all forms of transmission, even those that have yet to be invented. There is no statutory definition of the word "telecommunication". The word originates from the terminology "telegram" or "telegraph" which, as Deputy Harney correctly stated, was defined in the 1869 legislation and subsequently interpreted very widely by the courts. In fact, in one case in the 1880s — which is the landmark in this regard — the House of Lords took the view that the definition in the 1869 Act was sufficient to cover forms of communication not yet invented. In my view it would not do any great injustice to the legislation to include in the definition what Deputy Harney proposes, but not all people hold that view. They believe that when the courts look at new forms of communication in the future they may, as a result of the inclusion of this wording in the definition, decide that the Bill does not cover these and that it is confined to particular types of communication. This is not an easy concept to explain, but courts have restricted definitions in that way for reasons which certainly were not intended by Parliament.
Deputies Harney and Mitchell wish to alter the definition to take into account the fact that it might be possible for the Garda or other people to examine the contents of a package with the use of modern technology. The legislation governing this area is the Postal and Telecommunications Services Act, 1983 which criminalises the following activities: opening or attempting to open a postal packet, delaying or detaining such postal packet or doing anything else to prevent its due delivery or authorising another person to do any of these things. As the Deputies rightly said, this definition does not cover the taking of a photograph of a postal packet and thereby seeing what is inside of it. There are two points I wish to make in relation to this issue.
This legislation will merely authorise and put on a statutory basis certain activities which would otherwise be regarded as a crime under the 1983 Act. We are saying that activities deemed to be a crime under the 1983 Act will not be a crime if authorised by the Minister for Justice in accordance with this legislation. We are not in any way expanding the 1983 Act — that would be a matter for the Minister for Transport, Energy and Communications. Unfortunately, or fortunately as the case may be, I have no brief to put provisions into the 1983 Act which are not there or criminalise activities which are not criminalised in that Act. The sole purpose of this legislation is to put on a statutory basis the way the Minister for Justice can allow things to be done which would otherwise be criminalised under the 1983 Act. I have no brief to broaden the terms of that Act or broaden the definition of what constitutes interference with a postal packet.
As I undertook during the debate in the Seanad, I have been in touch with the Department of Transport, Energy and Communications and An Post about this matter. They have both advised me that it is not necessary to broaden the Bill in this way. People's opinions can be wrong and, perhaps, there is a slight lacuna in the law in that this activity is not covered in the 1983 Act, but I have no mandate to change this in an authorisation Bill.
The 1983 Act covers the opening or attempting to open, delaying or detaining any postal packet or preventing its due delivery. It goes on to criminalise further activities in this area. For example, it criminalises the disclosure of the existence of the contents of a postal packet, the use of the information got for any purpose and tampering with such postal packets. The word "tampering" is not defined in the Act; it may be taken to be sufficiently broad to cover what Deputy Mitchell wishes to achieve. To take the example given by Deputy Mitchell, delaying the delivery of a postal packet by even a millisecond so that someone can take a photograph of what is in it is criminalised under the 1983 Act. Therefore, the lacuna which may exist in the 1983 Act is more apparent than real.
I wish to tease out one point in this regard. With regard to the 1983 Act, what does the word "postal" cover? Does it cover a letter I may send internally in the House to Deputy De Rossa or Deputy Harney, internal post within firms, post carried by private couriers who are not part of An Post, post carried by private companies for profit or post sent from one branch of a company to another, as often happens?
It is confined to postal packages carried by An Post.
A wider definition is needed.
That is true, but we are simply authorising activities which would otherwise be a crime under the 1983 Act. I do not think we can get into asking the Minister for Justice to issue warrants in relation to the opening of internal packets. I do not think this would be appropriate.
There are three distinct elements to these amendments. I will deal first with amendment No. 1, amendment No. 3b and the definition of "communication" in amendment No. 9. I will then deal with amendment No. 3, amendment No. a3a and the definition of "interception" in amendment No. 9. I will finally deal with amendment No. a3b which deals with eavesdropping.
The Department of Transport, Energy and Communications has been consulted on the issues raised by amendment No. 1 and the definition of "communication" in amendment No. 9, and it, in turn, contacted Bord Telecom Éireann. The opinion received from it confirms that such modern means of transmitting messages or information as are referred to in the amendments are covered by the meaning of the word "telecommunications".
Deputies will note that "telecommunications" is not defined in this Bill. It is described as having the meaning that it has in the 1983 Act. However, it is not defined in the 1983 Act either. To get an idea of its meaning one has to go back to the Telegraph Act, 1869, which defines "telegram" as meaning "any message of other communication for transmission by telegraph". The term "telegraph" is defined in the same Act as including any apparatus for transmitting messages or communications by way of electric signals. That definition is understood to be wide enough to include a system of electric signals with or without wires. The fact that a particular method of telegraph or telecommunications was not invented or contemplated at the time when the definition was enacted does not prevent that method from falling within the terms of the definition or, in the case of telecommunications, its meaning. This understanding of the meaning of the term "telegraph" is based largely on case law, and the fact that the word "telecommunications" is not defined means that that meaning is not restricted in any way.
Therefore, the amendments would, in effect add nothing to the Bill, but their inclusion could cause problems because of the effect they might have on the long-established understanding of the meaning of the term "telecommunications" as developed from other terms such as "telegram" and "telegraph".
I now turn to the definition of "interception" in amendment No. 3, amendment No. a3a and amendment No. 9. First, amending the definition of "interception" in section 1, as proposed in amendments Nos. 3 and a3a would not, in itself, achieve anything. This is because the Bill proposes to regulate the power of the Minister for Justice to authorise interception. It is section 84 of the 1983 Act that contains the prohibition on the opening and so on of postal packets. Amendment No. 3 would prohibit nothing, and, accordingly, I cannot accept it.
Even amendment No. 9 to section 2 and section 84 of the 1983 Act would achieve nothing in so far as this Bill is concerned. That amendment could, solely in the context of the 1983 Act, make it an offence to establish the contents of a postal packet by the use of technology. That is as far as it would go because of the definition of "interception" in this Bill. In addition, the amendments to sections 2 and 84 are tautological, in effect placing the same definition twice in the same Act.
In this Bill subparagraph (ii) of paragraph (a) of the definition of interception of postal packets limits the meaning of "interception" for the purposes of the powers of the Minister for Justice under this Bill to interceptions that, apart from a direction by the Minister for Transport, Energy and Communications to An Post under section 10 of the 1983 Act, would constitute an offence of unlawful interception under that Act. The way in which the power of the Minister for Transport, Energy and Communications to issue such a direction is related to the power of the Minister for Justice to issue a warrant for interception is covered in section 3. The effect of subparagraph (ii) of paragraph (a) of the definition of interception is to exclude from the Bill interceptions which would not in any case require a direction by the Minister for Transport, Energy and Communications and, hence, a warrant by the Minister for Justice. An example would be the opening of an undeliverable letter.
The effect of what I have just said is that the amendments as proposed would be outside the scope of this Bill. The implications of the amendments would be for the 1983 Act and would more properly fall to be considered in that context. For any such amendments to have an effect on this Bill they would have to be inserted into the 1983 Act in such a way as either to relate to directions by the Minister for Transport, Energy and Communications or else to amend the substantive law as to privacy generally in relation to postal packets. There is no occasion to amend the law in either of these ways. I wish to add that the Law Reform Commission is at present examining the general law on privacy.
Even if the amendments were within the scope of the Bill and acceptable, I would have doubts about the wording of two of them. The use of the word "technology" in section 84 (1) of the 1983 Act, without being defined, would seem to import a loose element into a definition which is well understood.
Interception of a postal packet means more than just opening it. It also means delaying or detaining the postal packet. The person to whom the warrant is addressed could properly delay or detain a postal packet for a reasonable period if that were necessary in order to comply with the warrant, but anybody else who detained or delayed the postal packet would be guilty of an offence under section 84 of the 1983 legislation, unless the case fell within the exceptions provided for in that legislation.
Although amendment No. a3b seeks to amend the definition of the word "interception", it addresses a different point. In effect, it seeks to prohibit the use of bugging devices to record communications between persons. By use of the word "communication" the amendment is for all practical purposes restricted to recording telephone conversations. I shall deal with that aspect when the amendment is moved.
I would be glad to listen to any Deputy who has anything further to add.
I thank the Minister for his response but I am disappointed with it. I should like to take up his final point. The Minister indicated that he would not be happy to include a reference to technology because that would be much too loose. However, he told us earlier that the definition of the word "telegraph" in the 1869 legislation was very loose and that that was a good thing. The Minister's attitude to those two matters is not consistent. Reliance is being put on a definition contained in the Telegraph Act, 1869. There is great dependence on the courts' interpretation of that definition. There is a case pending against a newspaper or newspapers in relation to interference with Deputy Bruton's car telephone conversations. It could well be argued by counsel on behalf of the newspaper or newspapers that an 1869 definition could not have included mobile phones because they did not exist at that time. It cannot be assumed that because case law in the 1880s was in our favour, as the Minister said, the position will be the same in the 1990s. We all know from experience that the Judiciary change their interpretations from time to time. Certainly that is very often the case in constitutional law, which is evolving; interpretations change with the ethos and value system in society. It is equally true that the Judiciary change their view of legislation. Members of the Judiciary will be asked to try to determine what the legislators of 1869 may or may not have understood when they defined "telegraph".
I understand the position of the Minister of State, because I have been in his position myself, and I will not be unreasonable. However, it seems unreasonable for the Minister of State to argue that amendments are more appropriate to the 1983 Act. We will not have an oppportunity to amend the 1983 legislation. Whilst this Bill concerns itself with authorisations by the Minister for Justice, it does not make it illegal for the Minister for Justice to authorise certain matters. The Minister for Justice is being restricted by a very narrow definition of what may be authorised. The authorisation of the Minister for Justice would not be necessary if the gardaí were to use a scanning device to find out what was in a postal package. If the gardaí did not open or attempt to open that package, the authorisation of the Minister for Justice would not be necessary. The Bill is restrictive in that respect. The same applies to bugging devices, but I shall speak on that matter later.
The Minister of State has said that it is a criminal offence under the 1983 Act to delay or detain a postal package. I have that legislation in front of me, and I agree with the Minister. I wonder what constitutes a delay. In the recent general election campaign a substantial number of letters addressed by a colleague of mine to his electorate was detained until after the election and was not delivered until about two weeks after it was posted. My colleague has taken up that matter and I do not wish to make an issue of it now because it is being dealt with in another way. I make the point to illustrate that we are all the subject of delays. I have often had letters posted to me that have not arrived for a week or so. Has anyone ever been prosecuted for delaying the delivery of postal packages? What constitutes a delay? I wonder whether a delay means delivery taking two days, four days or five days? I realise that the Bill refers to communications but the definitions section refers to the 1983 Act. One cannot take one without the other.
I am always worried when there is reluctance to accept definitions. In neither definitions section nor elsewhere in the 1983 legislation could I find a definition of either "communication" or "interception". That is very strange and that is why I sought, by way of amendment No. 9, to include a definition. The definition I have worded may not be perfect and I would be happy to accept a different definition if the Minister of State were to present a better one. It is unsatisfactory to have legislation dealing with telecommunications that does not define either "communication" or "interception". That is part of the problem.
The Minister is right in saying that it is an offence to disclose the existence of the contents of a postal package or to use it for any particular purpose. Would sections 84 (1) (b) and (c) apply if by the use of scanning equipment one were to find out what was contained in a letter without opening or attempting to open that letter? If one were able to elicit information by the use of technology of one kind or another, would those provisions make it an offence to disclose the contents of a letter if the information contained in that letter was not received by the opening or the attempted opening of the letter? I should like the Minister to clarify the matter. The words used by the Minister both in the Seanad debate and now are rather vague. The Minister uses words such as "we understand that"——
It is an inexact science.
When I hear a Minister use the words "we understand" I am concerned that there is uncertainty. One cannot be certain for all time, but I would like to think that the advice available to the Minister is more certain than "we understand". That expression is much too vague.
Generally speaking, the Opposition is fairly well disposed to the Bill. Legislation is certainly necessary. The attitude of the Opposition is demonstrated by the small number of amendments that have been tabled. It would be beneficial if the definitions could be made more clear and precise. A future court judgment should not have to reply on a definition made in 1869 and decide that because certain developments in technology were not then available the definition did not apply, thus meaning that a host of interceptions could fall foul of the appropriate legislative controls. It should be remembered that it is the privacy of individuals that we are concerned with. Most people want to ensure that individual privacy is interfered with only when there is a security matter at issue or in the investigation of serious crime. I shall deal with that aspect later on, because the word "security" can be defined in so many ways. On the occasion that led to the necessity for this legislation it was held by the Minister of the time that people were subverting the State, which seemed in his opinion to justify the tapping of telephones. No reasonable person could have assumed that there was subversion of the State involved. If there is no definition, that assertion can be made. It is unsatisfactory that we limit or do not have a definition and therefore allow somebody to use a particular power at a given time to invade the privacy of others.
When I referred earlier to the need for ethics in the news media in relation to the reproduction of private telephone calls, I was not referring in particular to the incident involving telephone calls made by Deputy Bruton but to the general point. In so far as my remarks related to a particular case, I was referring to something I read in the newspaper last Sunday, a matter that did not involve a politician.
The Minister should accept amendments Nos. a3a and 3b. Those amendments strengthen the legislation and do not in any way detract from or undermine the principles involved.
The word "postal" needs to be defined. What is something that is in the post? If, for instance, I were to send a message to Deputy Harney, Deputy Gilmore, Deputy Browne or any other Deputy through the internal post in the House, would that message if intercepted be considered to be in the post? Alternatively, if one takes it to the end of the corridor and places it in the post box there, is it deemed to have been in the post from the moment it is placed in the post box?
The Minister said that if anybody were to delay something in order to photograph it or to carry out electronic surveillance of it in any other way, it would be necessary to delay it and that, by even delaying it one minute, one would be in contravention of existing legislation. Is it not reasonable to suspect that any of these examinations — if I may use that word — which took place in the past, presumably, would have taken place overnight, when sorting had taken place, when perhaps bags of envelopes were lying there awaiting the next process, perhaps awaiting the delivery men to collect them and, in that sense, the letter or letters would not have been delayed. Yet they could be intercepted. The title of this Bill is Interception of Postal Packets and Telecommunications Messages (Regulation) Bill, 1992 — I emphasise the word "messages" to underline the fact that it may not necessarily be something put in the post to be delivered by An Post or calls made through Telecom Éireann's system. For instance, what about internal telephone calls, or calls over car telephones? What about messages sent to people in another manner?
Amendments Nos. a3a. and 3b., the opening by electronic means or otherwise, the ascertainment of the contents of the postal packet without opening it by electronic means or otherwise, I contend are perfectly reasonable. I suspect there are readily available systems that would allow for this so that, in the future, that will be possible.
In relation to the matter of definitions and the use of the word "telegram", I contend adding the words "and also includes a message propagated by electro-magnetic radiation including fibre-optics, microwave or radio" is worthy of consideration. For instance, what happens in the case of ship to shore communications which I understand are carried out by radio? For example, a former Taoiseach went to sea quite a bit in the literal sense and might well have been called upon to send back messages; or take the case of, say, business people enjoying their leisure time. If we tie this down then there is little point in padlocking one stable door and leaving another door open.
If this is a Bill whose provisions are intended to deal with the interception of postal packets and telecommunications messages, then they should be more comprehensive and take on board some of these amendments. After all, the Minister has dealt with Committee and Report Stages in the Seanad. He may wish to consider some of the points we make now and return having considered them on Report Stage. I would ask the Minister to think in terms of the broad objectives of the Bill and accept these two amendments.
(Carlow-Kilkenny): I could not help thinking of an incident that occurred when I first became a Member of this House, when a letter was sent to me by my colleague, Deputy Yates, from Wexford. Exactly one month afterwards I received it back and stamped on the envelope were the words “mis-sent to Australia”. At this stage I wonder would I have a serious legal claim about the unnecessary delay on that occasion. I presume it arose inadvertently and I will leave the matter there.
The Minister of State said something that caused me some consternation. He referred to somebody who has a vow of silence and who may open a letter. If he does not open his mouth he cannot be summonsed. Suppose such a person received information? I thought of what happened last week when a businessman decided to make one property very valuable by buying it. Suppose he received information by letter, kept his mouth shut, went off and invested his money and is now on the way to becoming a millionaire? Would he be deemed to have committed no offence or would he be caught under some other technicality?
I would worry that we would incorporate or omit anything that would not anticipate the capabilities of modern technology. It would be awful if somebody later contended that those circumstances did not obtain at the time. The proposed amendments cater for advanced scientific discoveries.
In the absence of the former Tánaiste, Deputy John Wilson, who was a Greek scholar I might remind the House that when we talk about "telegraph" we should remember that "to telos" and "grapheo" are the Greek words from which that word derived, important information.
I have tabled amendment No. 3. I want to make a couple of points. First, I think observations were made, when this Bill was being debated on Second Stage, that in many respects the Bill as drafted, is already out of date and was introduced in response to circumstances which arose in 1982, a subsequent court case that arose from that and the political pressure then exerted to introduce a Bill of this type. There has been reference here to circumstances obtaining in 1869. Indeed, even in 1982 one could not have anticipated the kind of rapid developments in technology that have taken place which now enable telephone calls, letters and so on to be scanned by electronic devices.
As Deputy Browne said, the provisions of this Bill must keep up with the times. We have long passed the days of the unscrupulous post person taking letters into a neighbour's house to have the envelopes steamed open and the contents read. We live in an era in which letters can be read without being opened at all, in an era in which telephone conversations can be monitored on a regular basis. For example, I understand that GCHQ in the neighbouring island now have an arrangement that all telephone calls between this island and the United Kingdom are monitored regularly, that they have devised a computer programme to pick up certain words which then trigger off some procedure to carry out detailed monitoring. We live in a whole new age of Big Brother. Therefore, we must ensure that citizens' rights to privacy, including the right to privacy in the transmission of messages, whether by letter, telephone or other means, are protected. Such protection must take account of the modern technology obtaining for the interception of messages and endeavour to anticipate as well future likely technological developments.
In response to the points made, Deputy Harney felt I was being somewhat inconsistent in questioning the term "technology". What I object to there is importing new definitions to explain a word that has been in existence for a long time, which has been dealt with by the courts, has been understood in a certain way by the courts, has been understood to mean certain things by the people working in the area.
Deputy Harney also mentioned Deputy John Bruton's case, whose mobile car telephone conversation was tapped. As I understand the position, clearly that would be an offence under section 98 (1) of the Postal and Telecommunications Services Act, 1983 which specifically states:
A person who—
(a) intercepts or attempts to intercept, or
(b) authorises, suffers or permits another person to intercept, or
(c) does anything that will enable him or another person to intercept,
telecommunications messages ...
As I understand the position, from newspaper reports of Deputy John Bruton's case, a telephone conversation between himself and another Deputy was intercepted, that is, an interception of a telecommunication. Clearly that is an offence.
Deputy Harney also made the point vis-à-vis interpretation, since mobile telephones did not exist in 1869. I would not accept that argument at all. “Telecommunication” is the term used in the legislation under which prosecutions will be brought in Deputy John Bruton's case.
The only reference I made to 1869 was to explain that the term "telegraph" was defined statutorily in legislation in 1869. "Telecommunication" is an advance on the term "telegram", type of terminology derived from the term "telegraph". The 1869 definition of "telegraph" was held to be very wide. For example, section 4 of the 1869 Act, which defined the term, was stated in Halsbury's Laws of England in 1880 and read:
The definition is wide enough to include a system of electric signals with or without wires, and a system of wires worked by hand if arranged so as to constitute a code of signals. The fact that a particular method of telegraphy was not invented or contemplated at the time when the definition was enacted does not prevent that method from falling within the terms of the definition.
That passage was quoted with approval in a landmark case on this subject, the Attorney General v. The Edison Telephone Company of London 1886, Queen's Bench Division, page 244.
Deputy Harney also made the point that the Garda can, apparently, use a scanning device to discover what is contained in a postal packet without authorisation. Perhaps they can, and, perhaps, this is a lacuna in the 1983 Act, but they will not be able to disclose the contents, its existence or any information gained. This also covers the point made by Deputy Browne, that somebody may make an investment in the stock or property markets if they discover information as a result of using a scanner.
(Carlow-Kilkenny): Would it not be of help to Garda investigations if they did discover information in a letter? It would be highly dangerous if they could not use such information. It would be a marvellous advantage if one could discover information and did not have to tell anyone about it. In the case of the Garda, I am sure it would be a great help if they could be given a letter that would incriminate someone. They might never have to use this letter in court but it would put them on the right track.
They would hardly be able to convict the person without the evidence.
Deputy Gilmore, and others, made the point that the definition is unduly restrictive and does not cover modern developments in telecommunications but that is the reason we have not sought to define the term, "telecommunications". This matter can be approached in two ways. First, if one is dealing with a word which encompasses a small area of activity one tries to define it in a comprehensive way and include as much as possible — this is true in the case of Revenue statutes — whereas if one is dealing with a vast area of activity one introduces a general definition and does not try to define bits and pieces of it. It has been found that, despite the best intentions of the parliamentary draftsman and legislators its meaning can be restricted in the light of further developments. Experience in the courts shows that it is best to have a general definition. I genuinely believe this and I have much experience in this area.
Deputy Mitchell asked if there was a definition of the term "postal packet". It is defined in the Post Office Act, 1908 as follows:
A letter, post card, reply postcard, newspaper (printed packet), pattern or sample packet or parcel, every packet or article transmissible by post and includes a telegram.
Deputy Mitchell also referred to the question of internal mail. This is not covered by the definition of "postal packet" and this legislation will only apply to postal packets delivered through the An Post system.
On whether the Garda can intercept internal mail without authorisation, it would be a crime for anyone to intercept any form of postal telecommunication unless authorised to do so in accordance with a direction from the Minister for Transport, Energy and Communications under section 110 of the 1983 Act. Deputy Mitchell made the point that such a direction does not have to be authorised by the Minister for Justice. This would not be appropriate because there has to be some limit. However, I am prepared to look at this point again.
On the question of delays, Deputy Mitchell made the point, and I agree with him, that mail can be scanned while being sorted. One will not be able to use any information gained or to disclose the fact, for example, that Deputy John Browne has written a letter to me. Ship-to-shore communications are covered by the definition of telecommunications.
Deputy Gilmore made the point that the Bill is out-of-date but I contend that it is not. The definition of "telecommunications" covered all forms of communication in 1869, 1982 or 1983 and covers those which have been invented since and will be invented in the future. It is my understanding that it covers all forms of non-postal communications by way of signals which could possibly be invented. That is the reason we have deliberately kept the definition very wide.
I would like the Minister of State to clarify a number of matters. First, we mentioned a hallmark case in the 1880s in which the definition of "telegraph" was quoted. Is there any Irish case law and, if so, how recent is it? Has anyone been prosecuted for a breach of the 1983 legislation?
In responding to the various points made by Members of the Opposition the Minister of State has, on several occasions, indicated that while the Garda may discover information as a result of scanning a letter this cannot be used. If a tap is placed on a telephone having been authorised by the Minister for Justice following a request from the Garda Commissioner under this legislation can the information gained be used in a subsequent prosecution? Will the court be made aware that the Garda tapped a telephone and received particular information?
The Minister of State also made the point that if one acquires information as a result of scanning a letter and so on it would be an offence to pass it on or to use it in any way. I accept that that is the case but I am aware that someone can at random scan the system, tap into some number, listen into conversations on a car phone and subsequently circulate the information gained to a number of people. In such circumstances it would be difficult to establish who circulated the information initially but this can be extremely damaging even if it is circulated quietly and not published in a newspaper. It can be circulated to the people that matter. For example, it could relate to a business matter or to a future stock exchange deal and all that one need do is send information to a small number of people.
In relation to requests made by the Garda Commissioner and the Defence Forces, obviously these are made to the Minister for Justice. Perhaps it would be more appropriate to make this point on a later section. If a request is made will it be sanctioned automatically? Is the Minister's role purely a nominal one or is it envisaged that the Minister will seek advice and, if so, from whom? Given the concern about the definition I am anxious to know the basis on which the Minister will seek advice.
I do not want to delay the House as we have aired our views on these issues but I suggest that the Minister of State seek advice prior to Report Stage — he agreed to do this in the Seanad and one could say that the advice may not change over a period of three months — as to whether the points made by Deputy Gilmore are valid. Technology is changing rapidly and it may well be the case that the amendments we have proposed are too specific and would not cover future developments. I have no doubt that it would be possible to prepare an amendment which would cover all such developments.
I am aware that the Judiciary take an independent line and like matters to evolve. I do not think any of us could be certain that they would agree with the wide definition contained in the 1869 Act. The Minister of State may argue that the concept of telecommunications is covered but I do not think we can be certain that all modern developments are covered by the 1983 Act or this Bill or by a definition which was relevant in 1869. We cannot presume that that would be relevant for all time.
We will not have another opportunity to amend the legislation dealing with telecommunications, the interception of messages and the protection of the privacy of individuals for quite some time. Therefore, when we are given such an opportunity it is important that we use it to ensure that the legislation is as complete and as comprehensive as possible. It is important, when we have the opportunity, to use it to ensure that the legislation is complete and as comprehensive as possible, not just for now but to try to anticpate what will happen in the future, and have as wide a concept of telecommunications, interception and communications as possible. I do not intend to respond again because we need to make progress. I had hoped that the Bill would go on over Easter because I had tabled amendments to later sections of it, but there is no point in speaking at random on these points.
I would like to hear the Minister being a little more forthcoming on the possibility of a broad amendment that covers what we in the Opposition are trying to insert in the legislation. Because there is such goodwill to the overall proposals of the Bill it is important that we try to take on board some of the concerns people have.
I will deal with Deputy Harney's last point first. I have no difficulty in having this matter further examined; perhaps the way to do it is to amend the term and write it in so that it will cover future developments in this field. In relation to her query on Irish case law, there is no recent Irish case law that we know of on the subject, but I will investigate whether there is any Irish case law on the definition and I will communicate with the Deputy in that regard.
I was also asked whether anybody was prosecuted under the 1983 Act, but as far as I am aware only the people who were involved in Deputy Bruton's case will be prosecuted in the near future; but again I will have the matter checked out and let the Deputy know.
The Deputy asked also if the information is used or made known to the court in subsequent prosecutions. The answer is "no". The Deputy also queried what will happen to those who tap into car phones and circulate the information widely. I realise the point the Deputy is raising but I do not think we can deal with it in this legislation. There is the problem of having the matter investigated and getting sufficient evidence to prosecute. Under the legislation as it stands, if somebody taps somebody's car telephone and uses the information or discloses the contents or any part thereof, that is a criminal offence. If the Garda can get sufficient evidence to prosecute and get a conviction, the person will be convicted. That is a matter for the Garda, all we can do here is make the law.
The Deputy asked whether the Minister for Justice will discharge his functions automatically. The answer to that is "no". Section 2 (1) states:
The Minister may give the authorisation, but only for the purpose of criminal investigation or in the interests of the security of the State.
Subsection (3) states:
The Minister shall not give an authorisation unless he considers that the conditions specified in section 4 or 5 of this Act, ...stand fulfilled, and that there has not been a contravention of section 6 of this Act, in relation to the proposed interception.
The conditions set down in sections 4 and 5 are quite specific and in my opinion they contain very adequate safeguards of a person's right to privacy. The procedure to be followed is that a request will be made to a nominated officer in the Department of Justice, whom the Minister will nominate to receive a request like this, and the nominated officer after studying the information supplied by the people seeking the warrant — whether the Garda Síochána or the Department of Defence — will then make his own inquiries. He can use any information he has himself and then he will make a submission to the Minister for Justice. The Minister for Justice will not be obliged to accept that submission, although I would imagine it would be an unusual case that he would not accept it. Let me point out also that the whole procedure will be supervised by a High Court judge and he is in a position to demand to see any documentation whether from the Garda, the Department of Justice, the Civil Service, Bord Telecom or An Post in relation to any particular case. The designated judge will report to the Taoiseach, who is obliged to lay his reports before both Houses of the Oireachtas.
The procedure will be well supervised. There are adequate safeguards. The Minister must meet the conditions of sections 4 and 5. The matter will first go to the nominated officer who will make whatever further inquiries he wishes and then make a submission to the Minister.
As we have a lady Member in the Chair I should make the point that section 2 (3) when referring to the Minister refers to him as "he" and I wonder if this covers the present Minister.
I want to deal further with the Minister of State's clarification of the use of information. As I understand it, he said that if the information is received officially and the request comes from the Commissioner approved by the Minister and information is received by the Garda Síochána to help them with their investigations by giving them a steer, that information is not used subsequently in court proceedings. Is that the case?
Yes.
If that is the case we are requiring them to get the Minister's approval if they wish to open or attempt to open a letter, but they do not need the Minister's approval if they want to scan the letter to get the information because they are not going to use the information in any event in court proceedings. There is no difference. We are asking them to get the Minister's approval — and this is a protection I support — to open or attempt to open a postal package but no ministerial approval is required when they use the type of technology described by Deputy Gilmore. That seems to be inconsistent. If we have the technological means to scan postal packages to find out what is in them, it seems to me the Garda should have to get approval to do that. I cannot see why it is different. Perhaps the Minister will respond to that either now or on Report Stage? What we are doing is giving the authorities another weapon to fight crime, and I support that and I certainly do not want to make it more difficult for them. However, I want to ensure that we have the kind of protection for the privacy of individuals to be upheld and that there are no inconsistencies in what we are seeking to do.
Whatever about the technology that is available at present to scan postal packages, in five, ten or 50 years from now it will probably be far more advanced and there will probably be no question of opening letters to find out what is in them as it will probably be done by this means. Therefore I believe we are not covering the situation as fully as I wish.
I do not accept Deputy Harney's point that there is no difference in principle between the authorised and unauthorised situation. There are more ways to make use of information than just using it as evidence in court. They may make use of the information in their investigation to enable them to ask the questions and to talk to the people that they may not otherwise have been able to talk to.
Could they still do that if they choose to?
They can scan but they cannot use that information. I have already said there is something of a lacuna in the 1983 legislation, but that is a matter for my colleague, the Minister for Transport, Energy and Communications. I will communicate with him between now and Report Stage to see if I have his authority to cover that situation by amending the 1983 Act in this legislation. We do not want the situation that erudite Deputy Browne (Carlow-Kilkenny) describes where the laws are as Dean Swift described them — like cobwebs to catch flies but let wasps and hornets through. We will get back to the Department of Transport, Energy and Communications about the matter.
Is the Minister aware of the existence of electronic or other means that allow for the scanning of letters without opening them and extracting the information from them? Is there such equipment available at present?
I have no knowledge of it but I would not be surprised if I found it existed.
Is the Minister saying there is no technology that would allow that to be done?
I am not aware of it but I would not be surprised if there was.
(Carlow-Kilkenny): I do not accept the distinction the Minister is making between scanning letters and getting information and not using it to hang yourself afterwards. I gave the example of somebody getting information on the stock exchange and using it for his own purposes. There are so many ways that you can get information that you do not have to reveal to anyone which could be of advantage to yourself or disadvantage to somebody else.
That would be using the information. One cannot use the information.
(Carlow-Kilkenny): The Minister said that if the person took a vow of silence and did not go around publicly saying they got information in a letter they opened——
That would be disclosing information but we are talking about using it, which is a separate matter.
How would you know if it is used?
All we can do is criminalise the action and make a prosecution.
(Carlow-Kilkenny): Is it an offence to get the information if you do not publicly disclose it?
Yes, if you use it.
(Carlow-Kilkenny): Suppose you use it for your own advantage——
It is an offence.
(Carlow-Kilkenny): I am more mesmerised now.
I am surprised at the Minister's statement that he is not aware of the devices that exist for the scanning of mail.
I do not have as much experience in that area as does the Deputy.
I do not know what experience the Minister is referring to. Deputy O'Dea is Minister of State at the Department of Justice and he has taken this Bill through the Seanad where this matter was brought to his attention. He gave an undertaking on Committee Stage in the Seanad——
I carried it out.
——when this amendment was debated there that he would consider the case made.
I did consider it.
The Minister on Report Stage in the Seanad said he had considered the matter. He is now saying he is not aware that there are electronic devices available which enable a person to read a letter without opening it. I find that absolutely astonishing. Is the Minister saying that in the course of consideration of this amendment in the Seanad the Department was not able to establish that such electronic devices are available, when a ten year old child with rudimentary knowledge of the kind of equipment that is available knows that such equipment exists? What methods exist at present for extracting a letter from an envelope? The days of opening an envelope and taking a letter from it are long gone. There are now methods of extracting a letter from an envelope without opening the envelope at all. I thought the debate on this amendment had died a death but I am astonished to hear the Minister admit that he is not aware of technology dealing with this area.
Extracting a letter from an envelope, whether by opening the envelope or otherwise, is dealt with under the 1983 legislation as it relates to tampering. In relation to my knowledge, or lack of it, of electronic devices for scanning, I was able to make my decision regardless of whether these devices exist because the disclosure of the existence of the contents of a postal packet of the use of the information obtained in a postal packet are criminal offences. All of us hear rumours and read reports on these devices but I have not been officially informed of the existence of any such device. I suspect they do exist but regardless of whether they do, the point is covered under section 84. This is simply authorisation legislation. Amendment of the 1983 Act is a matter for the Minister for Transport, Energy and Communications. I have already undertaken that I will talk to that Minister about the matter and I shall revert to the House on Report Stage. I considered the matter previously and took advice on it and in view of today's debate I will be happy to do so again.
Is the Deputy pressing her amendment?
Yes.
Are the related amendments being put to the House also?
Acting Chairman
Not until we come to them.
Is the Minister going to come back on Report Stage on the interception of packages by way of scanning devices?
Yes.
In that case I will not delay the House. However, I wish to press my amendment No. 1 which seeks to widen the definition.
Amendment put and declared lost.
I presume amendment No. 3b was also put as the wording is the exact same as that in amendment No. 1.
Acting Chairman
No, only amendment No. 1 has been put.
I move amendment No. 2:
In page 3, line 29, to delete "judge" and substitute "person".
A similar amendment to this one is tabled to section 8, which proposes that a High Court judge should oversee the authorisations given by the Minister. I have no objection to High Court judges doing this work but there are a number of other people who would also be suitable for this job, for example, a retired judge, the Ombudsman or other individuals. Therefore, instead of merely defining the person as a designated judge I propose that the definition refer to a designated person. That would allow us at a later stage to include persons other than High Court judges. I do not envisage that these powers will be used frequently and I do not assume that a High Court judge will be tied down for a considerable length of time in any one year to reviewing these matters. The courts are extremely busy and there are long delays in having cases heard. Only a week ago at Question Time I advocated the need to appoint extra judges in order to expedite proceedings in our courts, particularly the Circuit and High Courts.
The assumption has been made that only a High Court judge would be suitable for the job. We are involving the Judiciary too much in matters of this kind. Therefore, I propose that the definition be widened to include, perhaps, retired judges, the Ombudsman or other suitable persons. When we come to the relevant section I hope to have amendments tabled to cover that matter. I would be interested to hear the Minister's views in this regard. This is a very small point but would allow us at a later stage to include other persons. I suggest that the Minister consult with the President of the High Court or the Chief Justice in deciding on the appointment and that the appointment be made on the basis of consultation and agreement between all parties in this House. That would give greater flexibility, accepting that there are persons other than High Court judges who have the confidence of the public in being fair and impartial, in protecting the citizen's privacy and so on in matters of this kind.
I am a little confused because a group of amendments were taken together, some of which were in my name. However, I support Deputy Harney's amendment and the general point she makes. The Ombudsman would be a very suitable person for this job as would the Comptroller and Auditor General, or a former Comptroller and Auditor General, former Members of the Oireachtas and churchmen, people whose integrity could not be called into question. The person appointed need not be a High Court judge. I take Deputy Harney's point that we have an unelected Judiciary which all too frequently makes laws in the Four Courts. It lets the House off the hook to some extent that they are prepared to do that.
We in turn constantly push things onto the Judiciary, presumably at the behest of civil servants. The Judiciary and the civil servants between them control a lot more power than this House should allow them. It seems that we only have the powers that they let us have. We have gone too far down that road. I support the point Deputy Harney made about the Judiciary and I would go further and include the Civil Service. This is a House of Representatives, not just a Legislature. The Executive should account to us. I would not rule out judges for appointment, but it should not be only judges who are eligible for appointment. There are other eminent people who would be suitable for appointment. No one could claim, for instance, that the current Director of Public Prosecutions, the former Director of Public Prosecutions, the Comptroller and Auditor General or the current Ombudsman were not suitable to fulfil this role. Anybody who could qualify for the role of Ombudsman should qualify for this job.
Acting Chairman
For the information of Deputy Mitchell, amendments Nos. 3a and 3b are being discussed with Deputy Harney's amendment No. 1 but they will be decided later on when those amendments are reached.
Technically, the acceptance of this amendment would require many more amendments. Deputy Harney has already indicated that she will table those amendments on section 8.
Following the Malone case the European Court of Human Rights stipulated that the Convention on Human Rights required that a person whose rights are affected by the system of authorised interception should have adequate guarantees against abuses and an effective remedy if such abuses occur. It is essential therefore to have some form of review of the operation of the system and redress. In the normal way a person whose rights are violated by administrative action can have such action reviewed in the courts. But because of the inherently secret nature of the interception system it is necessary to restrict access to the courts and so it is necessary to establish an alternative forum which can ensure that the system is being operated properly. A reasonable solution is to entrust this duty to an independent judicial person who by his training and experience is well qualified to scrutinise and report impartially on the operation of the system.
There is nothing new in having a judge investigating and reporting on administrative or executive actions. It is done regularly in the courts and in the course of judicial inquiries. The designated judge's report on the operation of the interception system will be made public when it is laid before the Houses of the Oireachtas and in this regard will be no different from the report of a judicial inquiry. Involvement of the Judiciary in reviews or inquiries has not hitherto undermined their independence in the eyes of the public and there is no reason to think that it will do so in this instance.
Normally administrative functions can be reviewed by the Judiciary. This is a particular form of administrative action — the secret interception of telephone conversations, postal deliveries and so on. Under section 10, access to the courts is restricted. One can only take a constitutional action for invasion of privacy, but not ordinary forms of civil action. To make up in part for that we are having the whole thing reviewed by a High Court judge to whom people would be going for a judicial review if they had normal access to the courts without the restriction under section 10. I am not opposed to Deputy Gay Mitchell's suggestion in relation to judges, retired judges or senior public officials, but my understanding is that the Government decision is that the appropriate person to conduct the review is a High Court judge. I will have no difficulty about consulting on that, if Deputies feel particularly strongly about it.
I agree that we need a system of review and of checks and balances so that ministerial powers are not abused. I simply question whether we limit that to a High Court judge. I would not exclude the possibility of a High Court judge but I want to include the possibility of other persons. Deputy Mitchell mentioned even more people than I considered, and he is right.
Will the Minister clarify something? A High Court judge will review the operation of this legislation when it is in force. If the High Court judge is subsequently involved in court proceedings involving the individual whose phone the authorities found it necessary to tap to preserve the security of the State or because he was suspected of being involved in serious crime, surely there would be a conflict of interest there? There is no guarantee in section 8. Have we any guarantee that the High Court judge will excuse himself from hearing such a case? If a judge was aware that senior Army officers or the Commissioner of the Garda Síochána felt a person was involved in subversion or serious crime necessitating the tapping of the person's phone or the interception of his post, he might form the view that the person was involved in activities of this kind because of the knowledge of information gained confidentially. The High Court judge cannot discuss what he has learnt from the files he will have read in relation to the authorisation. There could be a conflict there and there is a case for limiting this to a serving judge. What kind of guarantees can we have that the judge will not subsequently be involved in any trial that a suspect person could be the subject of?
I agree with the point made by Deputy Harney. I do not suggest that judges should be excluded but they should not be the exclusive appointees to roles of this kind. In general I would put down a marker for the Minister and his Department. The Judiciary are not elected and they tend to be protective of their profession not only on the Bench but sometimes off the Bench as well. Perhaps there are reasons for that. However, they are not the most accountable and open of people and are not suitable for every task. Judges should be included for this task, but I would ask the Department to look more broadly when they are appointing people or suggesting people for appointments of this kind.
The Minister referred to administration. The person with the most knowledge of our administrative structure and who reports on it is the Ombudsman, who already works in the area of infringements of rights and duties under the existing provisions of a range of legislation. Nobody knows better than the Comptroller and Auditor General how the administration works, and he is a person capable of keeping secrets. He has access to the most secret of files. Former secretaries of Government Departments and journalists of a high calibre, such as Michael Mills was when he became Ombudsman, churchmen and so on would be suitable for appointment. Former distinguished Members of the Oireachtas would also be suitable appointees as would many people involved in the trade union movement. Judges have enough definite powers for which they do not have to account. It is time to trawl a bit more widely and to thrust this responsibility onto a broader spectrum of the community.
I take Deputy Mitchell's point about putting down a marker. The Government decision is that this should be confined to a High Court judge, but I will have no difficulty in speaking to the Minister or the Taoiseach about this. As the Deputies say, if this is framed more broadly there is nothing to stop the Government from appointing a High Court judge. We would just leave ourselves with the flexibility to appoint somebody from the categories mentioned if that is wished. I am aware of the possibility of a conflict or interest — a point raised by Deputy Harney. We have been in touch with the Chief Justice concerning this matter who had discussions with the President of the High Court. They agree — I have it in writing from the Chief Justice — that the judge involved in reviewing the overall operation of the Act should be taken off criminal work. I presume he would not be involved in any civil case relating to any case he reviewed. We have a communication both from the Chief Justice and the President of the High Court — who allocates High Court business.
I can give Deputy Harney a categoric assurance that there will be no question of a conflict of interest in relation to reviewing the operation of this legislation and dealing with cases which arise directly from that operation.
I thank the Minister of State for that assurance. The Chief Justice is an honourable man and the members of the Judiciary are honourable people and if there is a conflict they will not involve themselves. We are not putting a statutory requirement on them to prevent them getting involved. To a large extent, we are relying on their own rules, their honour and their sense of what is or is not appropriate. That is not good enough. The Bar is not established on a statutory basis as opposed to, say, the Incorporated Law Society and as a result self-discipline is imposed on members of the Judiciary, with the exception of the Circuit Court whose members are selected from practicing barristers. It is not good enough to rely on their own set values of right and wrong, we need to provide a statutory basis.
I accept what the Minister of State has said. He has been very open and supportive and has promised to speak with the Minister and the Taoiseach in relation to this matter. It would be in our own interest to widen the scope of who may or may not review this legislation. I take the view that putting one person in charge of reviewing something puts them in a very difficult position. We are talking about somebody who has been appointed by a Government. Our present system for making appointments to the Judiciary is that they are nominees of the Government. The Minister then goes to the President of the High Court — I do not know whether he suggests Judge X, or how exactly it is done — but as the legislation is framed the Minister will discuss the matter with the President of the High Court and a judge will be nominated for this purpose. Despite the independence, competence and honour which members of the Judiciary have, it puts them in a difficult position. Perhaps we should consider a group of three people, including the Ombudsman, a member of the Judiciary and, possibly, a senior public servant from another Department or a retired member of the Judiciary, a retired Ceann Comhairle or a retired President. When one person is put in charge of a review procedure it is very difficult for people to accept that a balanced approach has been adopted. It is always better to have three people.
I am not advocating that we should have committees and large groups for everything but certainly to expect one person to take on board the views of a Minister or a Commissioner in the Garda Síochána or, say, someone in the Army, puts a huge onus on them. I know I will be told they are able for this responsibility and that they are independent people, nevertheless it is better if there is a wider concept. As Deputy Gay Mitchell said, the responsibility of the Ombudsman is to protect the rights of ordinary people. We still have the first ever Ombudsman in place as the present incumbent was reappointed when his term of office expired. He has managed to obtain the confidence of the public as a person who protects their rights and defends their interests. Somebody of that calibre as well as a High Court judge and somebody else would bring a sense of balance to the review procedure which would be a good thing.
It would not be appropriate to have a committee as the Deputy rightly said. Basically we are trying to balance the powers being given to the Garda to investigate crime and subversive activities on the one hand and the right to the privacy of the individual on the other. That is the reason there are provisions in the legislation requiring that only the absolute minimum use shall be made of the information obtained through interception. We are also providing that copies of any communication be destroyed immediately. The intention is to keep the publication and dissemination of information to the minimum. The likelihood is that if more people are involved in the procedure, particularly in a small country, the information would spread. Hence the reason for only one person to be designated. If the person so designated is a High Court judge he would certainly be competent to carry out that function on his own. Of necessity, only the minimum number of people would have access to the material in order to protect the rights of the individual.
To assume that a review carried out by more than one person would not be confidential is wrong; it could be an argument for dictatorship — a one-member Government, otherwise you would not have confidentialty. In the case of a request from the Garda Commissioner a large number of persons will know, presumably a number of people in the Department of Justice and I have no objection to that. We have a large public service and it could be said that they act in an extremely confidential way, and this is not merely because they sign the Official Secrets Act. I do not assume for one moment that if it is widened to more than one person there will be suddenly breaches of confidentiality or an invasion of the citizen's privacy. A number of people will know about this in any event; that is not a bad thing and it cannot be avoided. I would hate to think that a Commissioner would make a request off the top of his head. I assume he would discuss it with the Garda Fraud Squad and that a number of people would be involved before there would be a request for an authorisation to interfere with a postal packet or to tap a telephone or whatever. I will withdraw the amendment because the Minister has been reasonable and he has promised to examine it for Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
(Laoighis-Offaly): I move amendment No. 3a:
3a. In page 4, between lines 10 and 11, to insert the following:
"(b) an act that consists of the obtaining by a member of the Garda Síochána of records maintained by Bord Telecom relating to the origin, destination and duration of any telecommunications message,
or".
Deputy Harney said earlier that I had tabled this amendment with an attitude of cynicism. While that attitude may be based on her experience in both Houses — which is much longer than mine — it is not accurate. Given that the Minister is aware of the concern which gave rise to my amendment and given that I am satisfied it will be addressed in the House I am happy to withdraw it.
The amendment seeks to insert, for authorisation purposes, the metering of information relating to the number of telephone calls a person makes, to whom he makes them and so on. At present that information is made available to the Garda, if they request it, by Telecom officials, under their normal duties, to assist them in the prosecution of crime because they had released that information without a statutory basis. The right to release such information to the gardaí on a statutory basis is being provided for. The metering information which relates to the number of calls a person has made, their duration and to where they were made does not involve releasing details of the contents of those calls and, therefore, would not be a matter requiring the authorisation of the Minister for Justice. Certainly such authorisation would be necessary in relation to cases where the gardaí tap into people's telephone conversations, but the release by Telecom officials to the gardaí of mere metering information would not be a matter for authorisation by the Minister for Justice.
Section 13 of the Bill provides for Telecom officials to release information on a number of grounds, for example, for the prevention or detection of crime or for the purpose of any criminal proceedings. Deputy Gallagher, in his second amendment, proposes a formalised procedure whereby a recognised Garda officer, not below a certain rank, would be required to issue a request. That provision is probably not unreasonable and I will examine it between now and Report Stage. We must formalise the procedure if detailed confidential information in regard to the number of telephone calls people make is to be released to the gardaí for the purposes of criminal investigation. It would be correct to formalise the procedure in this regard and I will examine this matter between now and Report Stage to see how this might be achieved. I suspect it might be achieved by stating that the request should be made by a Garda officer not below a certain rank, perhaps an inspector. I thank Deputy Gallagher for bringing this matter to my attention.
I apologise if I have offended Deputy Gallagher but we do not normally see such a streak of independence from Government backbenchers moving amendments. I do not know whether it was by way of a scanning device or that Deputy Gallagher was able to read the Minister's mind and tell us that as the Minister intended to examine this amendment he would not move it. I do not know how the Minister found out that Deputy Gallagher intended to withdraw amendment No. 4a. The Deputy did not tell Members that, he withdrew amendment No. 3a.
(Laoighis-Offaly): I withdrew both amendments.
I do not know what communications there were in advance, but, regardless of whether they were telecommunications, it was obvious that there was communication between the Deputy and the Minister.
These amendments have not been moved and strictly speaking, they should not be a matter for debate.
I was clarifying something I said earlier because I would not wish Deputy Gallagher to misunderstand my comment. So many amendments were tabled by the former Senators Upton and Costello when the Bill was going through the Seanad it is strange that Deputy Gallagher is the only member of the Labour Party to table amendments here. I admire that streak of independence and if I appeared cynical I apologise. However, the Minister will return to those amendments at a later stage, which I welcome, because they are worthwhile. Will they amend the powers in the 1983 Act?
No. The release of metering information by Telecom officials to the gardaí is being put on a statutory basis under this legislation, therefore, the amendment will apply to this Bill.
Is such a procedure not on a statutory basis at present?
It is provided under common law at present to assist the gardaí.
Amendment, by leave, withdrawn.
Amendment No. a3a not moved.
Amendment a3b has been discussed already; is Deputy Harney withdrawing it?
I understand the Minister may have said earlier that although I did not move the amendment we did discuss it. Perhaps I should have moved it when I moved my first amendment.
It is in order for the Deputy to move that amendment now. It forms part of a group of amendments we agreed to discuss together.
I move amendment a3b:
In page 4, between lines 23 and 24, to insert the following:
"or
(c) the use of an electronic eavesdropping device to record a communication by a person to another person without the consent of either person;".
Will the Minister consider this amendment between now and Report Stage?
This amendment relates to eavesdropping devices. I am advised that a bugging device in or attached to a telephone or which otherwise would intercept a telephone conversation is covered by section 98 of the Postal and Telecommunications Services Act, 1983. In other words, the use of such devices would be an interception of a telecommunications message in the course of its transmission and, as such, would be an offence with a penalty, on conviction and indictment, of a fine up to £50,000 or imprisonment up to five years, or both. The use of such devices is an offence and is provided for under the 1983 Act.
That Act provides for the use of such a device on a telephone but it does not provide for a bugging device used to bug somebody else's conversation or placed on the wall of a building to eavesdrop on a conversation in somebody's home. Will the Minister clarify the position?
Does the Deputy's amendment relate specifically to devices attached to telephones or does it extend further?
If the Minister understands the use of the word "communication" to cover telephone calls only he is correct, but when I used the word "communication" I understood it to cover conversation as well as communication. My intention in regard to this amendment is to cover conversations, not just telephone conversations. The Minister may remember the controversies in relation to telephone tapping and bugging devices. Perhaps he is not aware of scanning technology to ascertain the contents of postal packages but I am sure he is aware that there are bugging devices and we need to ensure that the law covers this area. In commercial dealings and a wide number of other dealings — perhaps to bug the conversations of political opponents — can we be assured that devices of that kind are covered by this legislation?
The difficulty in relation to Deputy Harney's amendment is that she uses the term "communication" which is defined in the Bill as "telecommunication or postal packet" but I understand the Deputy also intended her amendment to include general bugging devices, which might be attached to walls, etc. The Deputy has introduced a much wider area for debate which would be a subject for separate legislation. Section 1 simply provides authorisation of a procedure which is criminalised by the 1983 legislation. Responsibility for introducing legislation to cover bugging devices for industrial espionage lies with the Department of Transport, Energy and Communications. It covers a large area. I understand that the Law Reform Commission is currently considering the law on privacy and we may get some suggestions from its published report. There are many difficult policy areas in relation to legislation concerning bugging devices and to what extent bugging conversations for criminal proceedings can be allowed. It is a large area and not appropriate to this legislation, but I accept Deputy Harney's point that the problem will have to be resolved soon.
The purpose of this legislation is to deal with the authorisation procedure, but if the Garda Síochána wish to use a bugging device as opposed to tapping somebody's telephone, for example, if they wish to place a bugging device in somebody's home, would that be in order without seeking ministerial approval? If that is the position it seems to be inconsistent with what we are seeking to achieve. Perhaps the Minister will clarify the position. I accept that the general area of industrial espionage may be a matter for another Minister but, as I said earlier in the context of telecommunications and the type of controls we want to put in place and the checks and balances we must have to ensure that citizens have their privacy, we will not get an opportunity in the foreseeable future to amend the Postal and Telecommunications Services Act, 1983. That is why, in the light of our experience and the development of and greater use of this equipment, we need to have a certain amount of safeguards. I am paricularly interested in the powers of the Garda Síochána in relation to the use of bugging devices.
As Deputy Harney says, we are discussing telecommunications legislation. We are placing on a statutory basis the power to authorise an action which would otherwise be criminal under the Postal and Telecommunications Act, 1983.
In relation to attaching bugging devices to walls, under tables and so on, no statutory provision exists to deal with that as yet.
That is a scandal because this legislation would seem to have arisen simply as a result of the Kennedy/Arnold case. Instead of tapping their telephones on that occasion if the Minister in question had authorised the placing of a bugging device on their dwelling, the device would obviously have picked up as much information as may have been required on that occasion. It certainly is a loophole if we are simply responding to the narrow set of circumstances that arose in the early eighties. We need to have a wider definition of what exactly we are trying to protect. We are trying to protect the privacy of citizens from gross interference by the authorities. It seems ludicrous to say that we will place strong controls on the tapping of telephones or the interception of postal packages, but the use of bugging equipment — from which people can equally receive confidential information and interfere with the privacy of individuals — is not covered under any legislation. It is not good enough for us to say that it is a matter for another Minister. It does not matter which Minister will be responsible. We are discussing safeguards and the protection of citizen's rights and privacy. I see no reason why we cannot have an appropriate amendment to this legislation to ensure that our privacy is protected.
In calling Deputy Gilmore I must say we should not be debating these amendments again. I would ask the Deputy to be brief. It was agreed that these amendments would be discussed as a grouping, but there was some confusion at the outset with regard to the grouping. For that reason, therefore, we will depart from what should be proper procedure.
Deputies have been given a number of different amendment lists which I feel is causing some confusion. I certainly did not appreciate that this was included in the first group of amendments.
I agree with Deputy Harney. Indeed, it is not just a question of implanting a type of bugging device on the wall of somebody's house. Again, we are back to the area of technology. It is now possible, I understand, for ordinary conversations to be picked up by way of various kinds of long range microphones and recorded in that way. One could conceivably locate one of these devices in a white Hiace van outside the home of a political opponent, for example, and happily record the conversation of that opponent. We would all agree that we must have protection against actions of that kind. I agree with Deputy Harney when she says it is a question of protecting the privacy of the citizen and legislating for those circumstances, which we all appreciate, when, in the fight against crime or where there is a threat to the security of the State, exceptional measures have to be taken. But in providing for those circumstances we must be careful to protect the rights of the individual citizen against what really amounts to an invasion of privacy.
(Carlow-Kilkenny): I am appalled that we are protecting, for example, the transmission of a car telephone message, yet a bugging device could be placed beneath the carpet in the car and the recording of that message would not be an offence. This is a loophole in what I thought would be a worthwhile Bill to control this type of interference. I hope the Minister can say something that will console Deputies before we proceed any further.
I am always anxious to console Deputy Browne. This explosion of technology, including bugging and eavesdropping devices, has also caused problems in other countries. I understand that in the United Kingdom the relevant criminal law review committee is examining some way to tackle this particular device. Apparently the main problem that has arisen there relates to intrusion by the press into privacy of individuals, famous individuals in some cases. I assure the House that at the moment an examination of the uses and possible misuses of bugging devices is being undertaken by the Department of Justice. It is a major problem which more advanced countries than us have not managed to solve yet. It is a comparatively recent problem because this explosion of technology has occurred only in recent years.
I do not envy the public service and the Department of Justice the task which lies before them. However, I assure Deputy Browne and the House that an examination is underway at the moment. Perhaps some guidance will be obtained from what the United Kingdom decide to do in the matter. I do not agree with slavishly following the United Kingdom in everything we do, but if they can give us some guidelines in this regard we will not ignore them. We are aware of the problem, we are conducting a study and are eagerly awaiting to see how other countries address this matter. I agree with all Deputies who said that it is a problem that will have to be tackled on some level.
I do not wish to be unreasonable with the Minister of State but "looking into it" is an excuse for doing nothing. As Deputy Gilmore said, we can make it an offence to bug the conversation of others and then have the exclusions in order to investigate serious crime or if the security of the State is at risk in the same way we are dealing with telephone tapping. From what the Minister says, if Watergate happened here it would not be an offence. It would be morally wrong but not an offence.
Breaking and entering would be an offence.
If that is the case it obviously would not be improper or illegal for me to place a bugging device on the house. I accept what Deputy Gilmore says that it does not have to be on the premises; it can be far away. It could involve a political of business opponent or whatever. It seems obvious to me that what we need to do is to make that an offence and this is the appropriate Bill in which to do that. Exceptions could then be such as we do for telephone tapping. I cannot see a great difficulty with that. I cannot understand under what circumstances it could possibly be legal or acceptable to bug somebody else's conversation. As we all know, conversations can be used out of context and unless both or all parties to the conversation agree it is unacceptable and should be a criminal offence to bug the conversation of another.
For the purposes of clarification, if the Watergate incident had happened here it would be a crime on the same basis that it was a crime in the United States — illegal breaking and entering.
It happens here all the time.
Breaking and entering is a crime, yes.
Breaking and entering is a crime here. That is how those people were convicted.
If it had happened here Richard Nixon would still be President.
I cannot comment on that. If somebody breaks into a property to plant these bugging devices they can be convicted if apprehended. On the question of planting these bugging devices which does not involve criminal trespass or a break-in, that certainly is a problem. It is this particular area we are examining.
(Carlow-Kilkenny): Why is it so difficult to declare bugging illegal? The Minister of State says that the United Kingdom and other countries are trying to deal with this problem. What is so complicated about making a definite statement that the planting of bugging devices is illegal?
If I walk into the Taoiseach's office or the Minister's offfice to discuss a matter and place a device while I am there, return two weeks later and pick up the device, I have committed no offence. That is unacceptable and I cannot understand why it is so difficult to legislate for this area.
I am advised by the experts that it would be extremely difficult, particularly in relation to the exceptions. If it is criminalised as a general principle, it has to be allowed in certain cases; but to what extent, where can it be allowed and when will evidence obtained from these devices be allowed to be used? The issue of importation and sale must also be examined, so it is a complex problem.
Why can it not be dealt with in the same way as the interception of telecommunications messages is dealt with in this Bill where it is provided that if the security forces of the State believe there are grounds for making a request, such a request can be made and dealt with? We all accept that it is not good enough that there should be open season in regard to bugging. Some controls must be exercised and the formula provided in this Bill could be applied. I appreciate there will always be circumstances where bugging may be carried on and by its very nature nobody will know anything about it. The same could be said about many crimes which are not detected, but that does not mean they are not crimes and it does not prevent an attempt being made by the State at least to limit the commission of such crimes. I do not understand why the procedures in this legislation could not apply also to the problem of bugging.
Is this line of argument relevant to this Bill?
It is not, but I will respond briefly to Deputy Gilmore's point. In this Bill we are authorising a procedure which would be a criminal act under basic legislation which is already in place to deal with telecommunications matters. There is no basic legislation which deals with the problem of bugging and, therefore, we would have to start at the beginning, as it were. That is where the difficulty arises. This legislation is linked to the 1983 legislation which deals with telecommunications and if we want to introduce procedures, authorisations and so on in regard to eavesdropping we must start at the beginning.
The Minister indicated that a review of this is being carried out in his Department. Does he intend to introduce the basic legislation to which he referred arising from that review? I gather from the tone of what he said that he accepts the necessity to legislate in this area. Will he inform us if it is intended to do that?
Will the Minister clarify the difficulties he anticipates in this regard? I assume he is referring to situations where a person is blackmailed or threatened in regard to a possible kidnap. In such circumstances it would not be unreasonable to have the conservations recorded. I am not a legal person, but I believe the proper way to do this is to make bugging a criminal offence and introduce a good defence clause. When I was Minister of State at the Department of the Environment, we introduced some good defence clauses which meant that in suspicious circumstances an action was wrong except where a person could prove that he or she took all reasonable precautions to avoid doing it. Perhaps we could introduce a defence clause in this regard. If a person could prove they had reasonable grounds to believe they were the subject of a kidnapping threat or being blackmailed, bugging would not be a criminal offence; otherwise it would, except subject to an authorisation along the lines which exists in regard to telephone tapping. We are relying on definitions and concepts that are more appropriate to the 1869 legislation when it was not envisaged that there would be bugging devices that could record conversations from a distance. Part of the difficulty is that the provisions of the legislation are out of date and in time we will probably regret not amending those definitions. I do not expect the Minister to clarify all the difficulties he anticipates, but perhaps he might refer to some of them.
Deputy Harney correctly identified one of the difficulties. There must be a basic provision criminalising bugging and the difficulties arise in regard to the number of exceptions in this regard. We must deal also with sale, importation and so on. Substantial legislation would be required to cover all the difficulties.
In response to Deputy Gilmore, the study being undertaken at present by the Department of Justice is in regard to the problems to which bugging gives rise. A policy decision will have to be taken in regard to whether it should be criminalised and if the decision is in the affirmative we will introduce legislation. This area is not as simple as it may appear. In my view, it should be criminalised but I am unsure whether there could be a civil action if a person improperly bugged a conversation. It could involve an action in regard to trespassing. I do not wish to pre-empt the ultimate decision in regard to the criminal area, but if it is decided that there are sufficient problems to justify criminalising this matter, we will act on it.
Amendment put and declared lost.
(Carlow-Kilkenny): I move amendment No. 3b.:
In page 4, line 32, after "telegram" to insert "and also includes a message propagated by electro-magnetic radiation including fibre-optics, microwave or radio".
Amendment put and declared lost.
Section 1 agreed to.
SECTION 2.
I move amendment No. 4:
In page 5, subsection (2), lines 11 to 15, to delete paragraph (b).
This section deals with the powers of the Minister to give an authorisation for the purposes of criminal investigation or in the interests of the security of the State. There is no disagreement on that. Section 6 sets out the procedures, the persons who may make an application and the requirements which they will have to meet in order to make an application for an authorisation in the first place.
This amendment relates to section 2 (b) where it is provided that the authorisation should be given in writing. Section 2 (b) makes an exception in that the Minister can give, in what is called a case of exceptional urgency, an authorisation orally, by telephone or otherwise, and if it is so given, it should be confirmed, as soon as may be, by warrant under the hand of the Minister. There are two reasons I believe that provision should not be included in this Bill. First, it is unnecessary. If there are cases of exceptional urgency where there is not enough time available to give the authorisation in writing in the normal way, it could be sent by fax. I cannot contemplate situations which would require a decision to be made by the Minister and given orally by say, telephone. It is as quick to communicate a decision by fax as it is by telephone. There is no necessity for this type of oral authorisation. This is a dangerous provision.
One has merely to reflect on the widely reported circumstances which gave rise to public concern and in turn, gave rise to this legislation. There was a great deal of oral communication in those circumstances which was subsequently confirmed or not confirmed in one form or another. I certainly do not want to see a situation arising whereby the Garda Commissioner or an officer of the Defence Forces can walk into the Minister's office and get oral approval to tap a telephone when, under the Bill, such approval has to be confirmed at a subsequent stage. This approval may not be confirmed subsequently and, of course, the damage will have been done by that stage.
People who turn up at the Minister's office asking who gave the authorisation to tap their phones may be told that the Minister gave the authorisation orally, it was a case of exceptional urgency, but something went wrong and it was not subsequently confirmed. This is poor consolation to those whose phones have already been tapped.
Section 6 outlines the various procedures which have to be gone through in order for an application for authorisation to tap a phone to be made in the first instance. Do the provisions in section 2 (2) (b) mean that the procedures outlined in section 6 can, in cases of exceptional urgency, be set aside and that the Minister can be approached in the street or pub and asked to authorise a tap on someone's telephone? We have to be very careful about this issue. I do not think there is any necessity for oral authorisation; it is a dangerous provision. Given the existence of fax machines, there is no necessity for it. The authorisations should be given in the normal way.
(Carlow-Kilkenny): When I was reading this section the term “as soon as may be” caught my eye. This may be a legal term but it does nothing for the English language. What is the difference between the term “as soon as may be” and the term “as soon as possible”? I understand Deputy Gilmore's fears that this provision may be abused, but there might be cases of exceptional urgency. The difficulty is that we do not know what the term “exceptional urgency” can mean. When the Minister is in a car he will not have access to a fax machine and he may have to give the authorisation over a phone. This is the type of provision which could be abused but I have enough trust in Ministers to believe that they would not abuse it.
When I first saw this amendment I was not taken by it, but Deputy Gilmore has made some very valid points for its acceptance by the Minister. I accept that the Minister is not always sitting at his desk in the Department of Justice waiting to give authorisations to the Garda Síochána or the Defence Forces for the interception of a telephone or telecommunications message. However, I equally take the view that a Minister for Justice is never far away from a fax machine. I further take the view that in cases of exceptional urgency a car phone would not be used to communicate the request for the authorisation, given the danger of having a conversation on a car phone. The Minister would use the nearest "safe" phone, and the chances are that there would be a fax machine in close proximity to such a phone.
The term "exceptional urgency" can be used to define many circumstances. I do not wish to harp back to the events which initially led to this legislation as I do not want people to think that I live in the past. However, it was maintained at that time by the Minister in question that the individuals were involved in the subversion of the State, or words to that effect; it was considered to be a very serious matter. Every reasonable person took the view that this was not the reason, and the courts upheld that the privacy of the individuals was interfered with. The term "exceptional urgency" can be interpreted in many ways, depending on who is interpreting it. I am concerned about this.
I am concerned that the procedures referred to by Deputy Gilmore could not be put in place if it was not possible to use a fax machine or write a letter. If a matter is so urgent that a decision has to be made immediately then the procedures proposed in the Bill could not be put into place. There is not time limit on oral approval — it does not stand for 24 hours; it stands for as long as any other approval. This provision could be open to abuse.
Deputy Browne referred to the appropriateness of the term "as soon as may be". Whatever about its legislative context, I think it is supposed to mean as soon as is practicably possible. For example, a Minister could be out of the country when approval is sought. Of course, there is supposed to be an acting Minister for Justice who, presumably, would have the powers of the Minister. Therefore, it is not good enough to use the term "as soon as may be". There should be a specified period of time.
It is envisaged that the Garda Commissioner could walk up to the Minister when he is at a function and whisper to him that he would like to tap the phone of X, Y or Z and that the Minister could say "yes" on the spot? I would be concerned about this as it would remove all the other powers proposed in the Bill. I am concerned that we do not make the law so strict that the Garda are powerless to tap the telephone in a house in which a wanted IRA person is staying. I do not want to make the law so strict that we do not provide for the genuine exceptionally urgent cases. As Deputy Gilmore rightly said, a letter by way of a fax should be the minimum requirement because Ministers are more accountable when they put their names to something than when they give a direction orally. We have all seen how very honourable people can deny what they did or did not say orally; this happens all the time. A letter sent by fax should be the very minimum required in such cases.
The Bill states that the oral message may be given by "telephone or otherwise". If a message is given "otherwise" presumably the Minister will be in the company of the Garda Commissioner at a party or whatever. It should be possible in those circumstances for him to give a written note to the Garda Commissioner; I do not understand why a letter is not acceptable in those circumstances. Presumably a Minister will give approval by telephone if he is away from his office or not with the person, who has to be the Garda Commissioner or a nominated officer of the Defence Forces requesting the authorisation. If the authorisation is given otherwise than by telephone presumably the Minister is with the person requesting the authorisation. I do not understand why the authorisation cannot be given in written form in those circumstances. The Minister should clarify the intention behind this provision and consider taking on board the points made by Deputy Gilmore.
I agree with Deputy Browne that the term "as soon as may be" is somewhat unusual; we usually use the expression "as soon as practicable" in legislation. I will discuss the matter with the parliamentary draftsman to see if we can tidy up this term.
Section 2 (2) (b) states that oral authorisation may only be given in the case of an exceptional emergency, not an emergency. Therefore, it is envisaged that this would happen only on rare occasions. The approval has to be confirmed by way of written warrant as soon as may be or as soon as practicable. I can assure Deputies Gilmore and Harney that the conditions set out in sections 4 and 5, and the procedure set out in section 6, will apply equally to an oral warrant as they apply to a written warrant. I wish to allay any fears which may exist in this regard. Section 2 (3) states:
The Minister shall not give an authorisation unless he considers that the conditions specified in sections 4 and 5 of this Act, as may be appropriate, stand fulfilled, and that there has not been a contravention of section 6 of this Act, in relation to the proposed interception.
This provision relates to subsection (1), that is, all authorisations, whether written or oral followed by a written authorisation. Therefore, the provisions in sections 4, 5 and 6 will apply even in the case of oral authorisations.
As I have said, it is envisaged that an oral authorisation could be given only in very rare cases, cases of exceptional emergency. Deputy Gilmore wanted to know what the position would be if an oral authorisation were not followed up by a written authorisation. Provision has been made for an overall review of the legislation by a High Court judge. I am sure that if a Minister tended to make oral authorisations and then not follow them up with written warrants the High Court judge will comment on that in the report he or she made to the Taoiseach, which, as I have said, will be laid before both Houses of the Oireachtas. Ministers would need to be very careful in their approach to the legislation and in the way in which they exercised the new powers provided under the legislation.
I am able to give an example of a time when an oral authorisation might be necessary. It might be discovered that someone was importing gelignite into the country and at the time of discovery the Minister might be, for example, down in Templemore or in transit between Dublin and some other area. If the Minister were to get a call from the Commissioner on his or her car phone to advise that the importation could be headed off or the load of gelignite raided, which would save the lives of innocent people, if authorisation were immediately given to tap a certain person's telephone it would not be reasonable to expect the Minister to hunt around for a facsimile machine so that the authorisation might be put in writing. In the meantime, the telephone conversation that the Garda wanted to record in order to prevent that importation might have taken place, meaning that the gelignite could come into the country and innocent lives could be lost.
As I have explained, it is envisaged that the provision for the Minister to make oral authorisations would be used only in very rare cases. It cannot be guaranteed that the Minister would have immediate access to a facsimile machine. It is not the question of preventing a crime that is at issue; it is the question of getting the information that will enable the Garda to prevent the crime from being committed. It could easily be that a short telephone conversation due to take place might be concluded within a matter of minutes, that being the reason for the provision for oral authorisations.
As I have also said, the making of an oral authorisation has to be immediately followed up by the making of a written authorisation. If that were not done, the High Court judge would no doubt question that in his or her subsequent investigation.
The term "exceptional urgency" has been used, because it is only in cases of extreme emergency that an oral authorisation would be made. It would certainly be the very rare exception rather than the rule that oral authorisations would be given. Nevertheless, all Members would be able to think of a very unusual instance in which it would be right and proper that the power to make an oral authorisation be given in order that crime, possibly serious crime, may be headed off.
I do not have any difficulty in accepting that the Minister should have the power to act quickly to deal with the kind of instance envisaged. However, I presume that even in Templemore there is access to facsimile machines and one would assume that if the Minister were in Templemore written authorisation could be made by use of facsimile. The Minister spoke of an instance in which authorisation had to be given by a Minister in transit. It seems that we are talking of times when the Minister is either in transit or in such a remote location that there is access to a telephone but not to a facsimile machine. Deputy Harney referred to the "otherwise" situation, when presumably there would be somebody with the Minister and the Minister was not relying on the telephone. In that circumstance it would be as easy to make an authorisation in writing, albeit handwriting, as it would be to make an oral authorisation. It must be remembered that it was an exceptional set of circumstances that gave rise to public concern and led to the introduction of this Bill in the first place.
The Minister has spoken of the powers of the High Court judge to review the legislation. The High Court judge does have those powers. There is power for the High Court judge to obtain documentary evidence. We could assume that the judge found that a certain telephone had been tapped. After making inquiries about that, the judge might discover that there was no documentary evidence, that no subsequent warrant had been issued. When the judge questioned that, the Commissioner might say that the Minister's authorisation was received on a particular evening via the Minister's car phone. The Minister might confirm that, or perhaps the Minister might genuinely have forgotten that the authorisation had been given. For whatever reason, however, subsequent written authorisation had not been issued. I am concerned about a loose situation in which it all comes back to who said what to whom and whether the Minister did get a telephone call to authorise a particular phone tapping. The Minister could be put in a difficult position. The Minister might find that he or she genuinely could not remember whether a telephone call had been received, whether the Commissioner had been met on a particular date and whether an oral authorisation had been given. That could particularly be the case if, as could well be, the inquiry took place some time later — memories can be faulty.
There is necessity to get the authorisation onto paper, however this might be achieved. I suggest to the Minister that some formula should be decided on by Report Stage. There should also be a legislative requirement on the person who made the request to record the fact that an oral request for authorisation was made and an oral authorisation was granted, which oral authorisation could subsequently be the subject of a formal written warrant. There has to be documentary evidence of the authorisation having been made. If that does not happen, we may — admittedly, in very limited circumstances and very probably in controversial circumstances — find that there is no documentary evidence and that the Minister's credibility is on the line. The Minister could be put behind the 8 ball, trying to remember something that might have happened two or three years previously when he or she was travelling from Limerick to Templemore one evening. To avoid having a grey area in relation to oral authorisation there is a need for documentary evidence. I still believe that there are now sufficient means at everybody's disposal to get such matters down on paper. If there were a very urgent set of circumstances that required such an immediate response, a certain procedure should be followed to provide documentary evidence of the authorisation so that there was no need to rely on vague recollection at some later stage.
Could the Minister of State clarify what is meant by the words "or otherwise"? I understand that if the Minister were out of reach he or she could be contacted by telephone, although I would have to point out that it is very doubtful that the Commissioner would ever use a car phone to communicate a message of the kind we have been talking about. I should like the Minister to explain what is meant by "telephone or otherwise".
I meant orally.
If the Minister were in the presence of the Commissioner, surely it would be possible to sign a document?
The warrant would be a certificate made out in a particular format and signed by the Minister. Is the Deputy suggesting that the Minister should carry one or more of those forms around with him or her?
Perhaps it could be provided that in those circumstances it would not be the official warrant that had to be signed but a piece of paper, handwritten even, signed by the Minister until such time as the warrant itself was documented. I am not suggesting the Minister would carry around in her possession — I will not use the term "handbag"— a whole set of certificates in case she meets the Garda Commissioner who would request her to sign one. Nonetheless I do not think it unreasonable, if the two are present, that she does not sign something as opposed to orally giving permission. It is much too loose, open to a lot of abuse and accountability will be very difficult to establish in such circumstances.
There is a misunderstanding of the procedure involved here. The Garda Commissioner cannot approach the Minister and the provisions of section 6 make that quite clear. The Garda Commissioner or Army officer has to approach "the nominated officer", that is the civil servant in the Department of Justice, who then passes the request to the Minister who, in 99.9 per cent of cases, will give written authorisation. Sometimes, in an emergency, the authorisation is oral but the Deputy can take it, in view of the fact that the request is being made by a nominated officer, who is a civil servant, it will be in writing.
In deference to Deputy Gilmore's point of view perhaps we can write into the section that "the nominated officer" shall record the day and time of the Minister's authorisation. Would that meet Deputy Gilmore's requirements? We could provide for an oral authorisation which can be followed subsequently in writing, so that the civil servant, "the nominated officer", who will be requesting this from the Minister, can record the fact that the Minister gave oral authorisation. Therefore, it will be on record.
A contemporaneous recording would probably meet the objective and improve the position. I presume the Minister proposes coming back on Report Stage with some kind of tidying-up amendment to that effect. In those circumstances I would be happy to withdraw my amendment.
Therefore, we will place the statutory obligation on "the nominated officer" to record the giving of an oral authorisation, time, date and place.
Amendment No. 4, by leave, withdrawn.
Amendment No. 4a not moved.
Section 2 agreed to.
Sections 3 to 5, inclusive, agreed to.
SECTION 6.
Amendment No. 5 is in the name of Deputy Gilmore. Amendment No. 5a is an alternative. Therefore, it is suggested that amendments Nos. 5 and 5a be discussed together.
I move amendment No. 5:
In page 8, subsection (1) (a) (ii), to delete lines 16 to 19 and substitute the following:
"(II) where the activities under investigation relate solely to members of the Defence Forces, an Officer of the Permanent Defence Force who holds an army rank not below that of colonel and is designated by the Minister for Defence for the purposes of this Act.".
This is the section where an application for an authorisation can be made by the Garda Commissioner or an officer of the Permanent Defence Forces who holds an Army rank not below that of colonel and is so designated by the Minister for Defence for the purposes of this Act.
My amendment seeks to draw a distinction between the tapping of the telephone of a civilian citizen and the tapping of the telephone of somebody who is a member of the Defence Forces. I accept that there are circumstances in which it may be felt necessary to tap the telephone of a member of the Defence Forces. In those circumstances I accept that it is appropriate that the application be made by a senior officer. In this respect, I agree with amendment No. 5a tabled by Deputies Gay Mitchell, Browne and Harney, that perhaps it should be the Chief of Staff of the Army but that the route would be through the Defence Forces. What I am seeking to protect here, which is not clear in the Bill, are circumstances in which, under the Bill as at present drafted, one could conceivably have a request for an authorisation being made by the Defence Forces in respect of a civilian. I do not want to get into the very Irish "coup" type of circumstance in which one runs away with oneself imagining the Defence Forces doing all kinds of things but traditionally a very clear distinction has been drawn between where the remit of the Defence Forces in security matters ends and where the remit of the Garda begins. When dealing with civilians that function must be confined to the Garda. My amendment seeks to ensure that the application for an authorisation in the case of civilians is made through the Garda; that the application in the case of a member of the Defence Forces can be made through the Defence Forces but that one would protect against circumstances arising — as the Bill at present — in which an application in respect of a civilian could be made by the Defence Forces. I do not think that would be appropriate. I am sure it is not something the Defence Forces themselves would wish anyway.
(Carlow-Kilkenny): Amendment No. 5a in the names of Deputies Gay Mitchell, Harney and myself is self-explanatory. We should remember that section 6 (1) (a) reads:
(1) An application for an authorisation—
(a) shall be made in writing—
(i) in case the authorisation is for the purpose of criminal investigation, by the Commissioner, and
(ii) in the case the authorisation is the interests of the security of the State, either by—
(I) the Commissioner, or
(II) an officer of the Permanent Defence Force who holds an army rank not below that of colonel ...
When it came to designating the Garda Commissioner there was no mention of a Garda officer above, say, the rank of superintendent, the senior officer of the Garda Síochána was designated. Therefore, it is not helpful that the senior Army officer, the Chief of Staff, is not designated as the person responsible. Without wasting anybody's time that change should be effected to balance matters. If the Garda Commissioner is to be designated on one side then the Chief of Staff of the Army should be designated on the other.
I concur with Deputy Browne's remarks. We are talking about circumstances in which the security of the State is threatened or endangered. Surely if the security of the State is threatened or endangered the Chief of Staff of the Army will be very much aware of that fact? We spoke earlier about protecting individuals' privacy, ensuring that there are proper checks and balances. If we are to be consistent I cannot see why, in relation to crime, we designate the Garda Commissioner but, when the security of the State is endangered an officer of lesser rank would be nominated by the Minister. That is unacceptable and I do not understand its purpose. In any event "the nominated officer" of the Minister for this purpose probably would always consult the Chief of Staff before adopting procedure for an authorisation under the provisions of this section.
The effect of Deputy Gilmore's amendment will be to restrict the power of the Defence Forces to apply for an authorisation only in circumstances in which a member of the Defence Forces is under investigation; that is a matter relating to the security of the State. His amendment totally ignores the part played by the Defence Forces in preserving the security of the State. It would also deviate from the present administrative procedures which have never caused a problem in that respect and which it is now intended to place on a statutory basis.
If the Deputy is concerned about the Defence Forces continuing to perform their present functions in relation to authorisations when this Bill is enacted I hope I can ease his mind by making the following points. First, the Defence Forces can apply for an authorisation only when the security of the State is at issue. Second, in practice, only one Army officer will have power to initiate an application. He or she must submit it to the Minister for Defence who will have to recommend it in writing to the Minister for Justice before it can proceed. Third, it must contain sufficient information, in accordance with the provisions of section 5, to enable the Minister for Justice to make a decision. The House should remember that section 5 deals with conditions justifying interception in the interests of the security of the State. Fourth, "the nominated officer" has the duty to scrutinise it and seek any further information he deems necessary to enable him to make a submission to the Minister for Justice, that is the civil servant in the Department of Justice, who will pass on the submission to the Minister. The fifth and most important is the provision in section 8 under which the designated judge will have the power to keep the operations of the Act under review, of ascertaining whether its provisions are being complied with and of reporting to the Taoiseach. Therefore, any authorisation under the Act will be made in the knowledge that it can come under the scrutiny of an independent judicial authority of high standing. This is the surest guarantee that authorisations given under the Act will be proper authorisations.
In relation to Deputy Browne's amendment No. 5a the positions of the Garda Síochána and of the Defence Forces in this respect are not comparable. There are many senior officers within the Garda Síochána who have responsibility for preventing or investigating crime in particular areas or for preventing or investigating particular types of crime. Similarly, in security matters operational responsibilities do not devolve on one officer alone. It would be intolerable if all these officers could apply direct to the Minister for Justice for authorisations for interception.
The position in the Defence Forces is different. There is no need for applications to be channelled to the Chief of Staff as usually they would come from one source, namely, a senior military officer who would be designated by the Minister for Defence for the purposes of the Act. That officer would, under section 6 (1) (c) have to submit any application to the Minister for Defence who would, in turn, have to make a recommendation in writing supporting the application.
Deputies would agree, therefore, that there is no need for applications from the Defence Forces to come through the Chief of Staff. It would add an unnecessary layer of repetition to the application process. Also, as with all procedures in the Bill, the designated judge, with his power of investigation, will be in a position to ascertain whether the provisions of the Bill in this respect, as well as every other respect, are being complied with.
I have not been greatly reassured by the Minister. We are dealing here with the role of the Defence Forces, which is solely to preserve the security of the State. The Minister has set out the procedure which will have to be followed by the Defence Forces: a military officer will be designated by the Minister for Defence and he will apply to the Minister for Defence who will in turn, apply to the Minister for Justice. If the Defence Forces receive information — I am talking here about cases involving civilians — I cannot see why this information cannot be communicated to the Garda.
What the Minister of State is doing is giving the Defence Forces an independent role which they do not have at present in relation to the policing of the civilian population. It is my understanding that the role of the Defence Forces is to act in support of the Garda Síochána. It is proposed in the Bill, however, that the Defence Forces should be able, independently, to seek authorisation to tap the telephone of a civilian. If there are grounds to justify this, I cannot understand the reason the request cannot be routed through the Garda Síochána and the officer of the Defence Forces requesting authorisation should not be confined to cases where a member of the Defence Forces is under investigation. I accept that cases may well arise where the security of the State is under threat.
A clear distinction should be made in relation to the role that the Army has played in Irish life. Their role has always been respected and clearly defined. What the Minister of State is attempting to do here is create a dangerous precedent whereby the role of the Army will be extended to cover the policing of the civilian population. This role should be the preserve of the Garda Síochána and it is important that this distinction be maintained.
I accept, having regard to the role the Army plays in preserving the security of the State, that information will be made available to Army intelligence which would give rise to a request for authorisation to tap a telephone; but it is important that this be routed through the Garda Síochána and that there be co-operation between the Garda and the Army on these matters. The Minister of State is creating a dangerous precedent whereby the Army are being given an independent role.
I should also make the point that we are talking here about the security of the State. What is interpreted as or constitutes the security of the State is a moveable feast. During the course of a previous debate it was mentioned that an industrial dispute in the United Kingdom a few years ago was elevated by the then Government to a level where it was held to constitute a threat to the security of the State. Therefore, depending on the perception adopted by the powers that be at a given time, this can be a moveable feast. Most of us interpret the security of the State as grappling with the problem of paramilitary activity on this island. While we have no difficulty with the idea that the resources of the Garda Síochána and the Army should be mobilised to deal with that problem, this must be done in a way that the respective roles of the Garda Síochána and the Army are maintained and the Army are not given an independent role in policing civilians.
(Carlow-Kilkenny): Can the Minister of State outline to the House in simple language the reason the Chief of Staff will not be nominated, in view of the fact that the Garda Commissioner, who has Deputy Commissioners, Assistant Commissioners, Chief Superintendents and Superintendents beneath him, has been nominated?
I suspect that the purpose in introducing these provisions is to assist Army intelligence and to give them an extra weapon in gathering intelligence, but can the Minister of State tell me what procedure will be followed? We were told earlier that if the Army tap a telephone or intercept a postal packet and receive information, they will not be able to use this information. What do they propose to do once they receive information? Do they propose to go to the Garda Síochána?
Second, I do not see any logic in the Minister of State's argument in relation to the Chief of Staff. If the security of the State was at risk the Chief of Staff of the Army would be aware of it and I assume that no nominated officer would seek authorisation without first discussing the matter with the Chief of Staff. I do not accept the argument that because a number of members of the Garda Síochána are involved in the investigation of a crime one cannot have each of them applying for authorisation and that consequently this is a matter for the Garda Commissioner. I do not think this should be used as a reason to nominate any officer above a certain rank in the Army. I understand that it will have to be sought by an officer above the rank of Colonel.
Deputy Browne made the point that it would be offensive to nominate an officer below the rank of Chief of Staff in the Army. I do not think the Minister will be required to even discuss with the Chief of Staff who should be nominated. The Chief of Staff does not seem to have any role. In the case of the Garda Síochána only the Garda Commissioner may seek an authorisation. Precedent would require the Minister to discuss with the Chief of Staff in an informal way which officer should be nominated, but there will be no requirement on the Minister to consult with the Chief of Staff.
In my reply I outlined the reason lower ranking officers in the Garda Síochána should not be nominated as opposed to the reasons the Chief of Staff in the Army will not be designated. However, in view of the excellent case made by Deputy Browne, I propose to accept his amendment. I will consult the Chief of Staff tomorrow and if he has no objection I will accept the Deputy's amendment.
(Carlow-Kilkenny): I thank the Minister of State.
I do not accept the point made by Deputy Gilmore that we are creating a new role for Army intelligence; all we are doing is putting the present administrative procedure on a statutory basis. Army intelligence have a role to play in preserving the security of the State, deal with espionage and so on.
It should be remembered that people other than members of the Defence Forces can be involved. More than members of the Defence Forces can be involved in these situations and it is not unreasonable that Army intelligence, whether they are members of the Defence Forces or not, in their role of protecting the security of the State may tap the telephones of people who may be engaged in the types of activities which endanger the security of the State.
Progress reported, Committee to sit again.