The House was dealing with amendment No. 5 in the name of Deputy Gilmore which was being taken with amendment No. 5a.
Interception of Postal Packets and Telecommunications Messages (Regulation) Bill, 1992 [ Seanad ]: Committee Stage (Resumed).
Debate resumed on the following amendment:
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.".
—(Deputy Gilmore.)
The early completion of the Animal Remedies Bill means that there are not many spokes-persons in the House to talk on this Bill and I have been asked to take this amendment on behalf of Deputy Gilmore. This amendment seeks to restrict the seeking of a warrant by the Defence Forces to circumstances in which members of the Defence Forces are being investigated. We would like this power restricted in so far as possible to ensure that it does not become a factor whereby two arms of the security forces of the State compete with each other in investigating certain matters. The Defence Forces would seek a warrant only in circumstances where the security of the State is threatened, but that is also within the remit of the Garda Síochána. It would be more appropriate to confine the issuing of warrants in relation to the interception of postal packets or telephone conversations to the Garda Síochána. We are not concerned that the Defence Forces might abuse or misuse such power, but because it involves an infringement on the privacy of the citizen it would be more appropriate to confine this matter to the Garda Síochána bearing in mind, of course, the importance of defending the security of the State.
From a cursory glance at sections 2 and 5, which relate to section 6, it is not clear that the Minister of the day would be presented with a prima facie case in support of a warrant by an officer of the Defence Forces. The Bill requires that the Minister must be satisfied in regard to certain matters, but the type of assurances that must be given by an officer of the Defence Forces is not clearly defined in the Bill. The Bill states that the officer must indicate that other more mundane inquiries have failed to produce the evidence being sought in regard to either a proposed act against the security of the State or an Act already being carried out against the security of the State. I am concerned that the checks and balances which apply to the Garda Síochána may not apply to the Defence Forces. My understanding is that under the law the Defence Forces may act only in public under the control of the Garda. They may not operate road blocks except in the company of gardaí or act in any other way outside the control of the Garda Síochána, unless an emergency is declared. This section gives the Defence Forces a power which should be confined to the Garda Síochána.
Amendments Nos. 5 and 5a are being taken together and although they are related their impact would be totally different. Amendment No. 5 in the names of Deputies Browne, Mitchell and Harney seeks to transfer from a military officer not below the rank of colonel to the Army Chief of Staff the right to make the application for an authorisation. I assured Deputy Mitchell that I would consult the Department of Defence to find out if they would have any objection to my accepting the amendment in his name. Following discussions with the Department of Defence and with the Army I am glad to report that there are no such objections. I will accept the substance of amendment No. 5, but I am advised by the draftsman that I may not accept the amendment as drafted. First, it will require some consequential amendments, for example, amendments to the definition section of the Bill, and section 7 will also require amendment as such officer is referred to in that section. Some alterations will be required to the wording of the amendment. However, I will accept the substance of the amendment and undertake to put down an amendment and consequential amendments on Report Stage which will meet the substance of the case made by the Deputies involved. I thank them for bringing this matter to our attention and the Bill will be a better one for having accepted the substance of their amendment.
Under amendment No. 5a only in circumstances where the activities under investigation mean that the security of the State is endangered and those activities relate solely to members of the Defence Forces, is it possible for the Chief of Staff as opposed to the Commissioner to apply for the authorisation to intercept suspected communications. In other words, even if the security of the State is threatened and people other than the Defence Forces are involved or suspected of being involved in an espionage ring, it would be a matter for the Commissioner to apply for authorisation to intercept the communication. I regret I cannot accept that amendment as it would restrict the powers of the Defence Forces to apply for an authorisation only where a member of the Defence Forces is under investigation. That proposal would ignore the important role played by the Defence Forces in preserving and protecting the security of the State and could, in certain circumstances, undermine the security of the State. In that regard, it is unacceptable.
I take Deputy De Rossa's point that similar checks and balances may not be provided for the Chief of Staff and the Garda Commissioner. Section 4 sets out the conditions which must be satisfied before the Garda Commissioner decides to apply for an authorisation to intercept and section 5 refers to the Chief of Staff. Those two sections appear to be identical and having regard to Deputy De Rossa's point I will undertake to examine them more closely between now and Report Stage to find out if there is anything in section 4 which is not contained in section 5. Obviously, they must be drafted in a slightly different way because we are talking about two different matters, serious crime and the security of the State.
If Deputy De Rossa is in any way concerned about the Defence Forces continuing to perform its present function in relation to authorisations after the enactment of the Bill, I should like to put his mind at rest by making the following points. First, the Defence Forces can only apply for an authorisation where the security of the State is at issue. Second, under the proposed new arrangement, only the Chief of Staff will have the power to initiate the application. In addition, he must submit the application to the Minister for Defence who will have to recommend it before it is submitted to the Minister for Justice. Third, the application must contain sufficient information in accordance with section 5 to enable the Minister for Justice to make a decision. Fourth, the nominated officer in the Department of Justice who receives the application initially will have the duty of scrutinising the application and seeking any further information, etc., he deems necessary to enable him to make a submission to the Minister for Justice. Fifth, and most importantly, under section 8 the designated judge will have the power to keep the operation of the Act under review and the duty of ascertaining whether its provisions are being complied with. He will also have the duty of reporting to the Taoiseach at least once every two years. It is envisaged that, in addition to this general report, at least every two years he can report from time to time on any matter which concerns him directly to the Minister for Justice about an individual incident or trend developing in the operation of the legislation.
Any authorisation under the Act will be given in the knowledge that it can come under the scrutiny of an independent judicial authority of high standing. This is the best guarantee that an authorisation given under the Act will be a proper one. From the point of view, I am happy to accept the substance of amendment No. 5 in the names of Deputies Browne and Mitchell. I cannot accept amendment No. 5a for the reasons I stated.
Will the Minister clarify if the amendment he is accepting is similar, in substance, to the amendment in my name, that the Chief of Staff will be the commissioning officer in the case of the Army?
Yes.
Does the Minister intend bringing forward a comprehensive amendment to Report Stage to provide for this?
Yes.
I welcome the Minister's acceptance of this amendment. It is important that the officer in the Army is equivalent to the officer in the Garda Síochána.
In relation to the amendment in the names of Deputy Gilmore, will the Minister clarify whether the Army intends to use these provisions as a kind of intelligence mechanism rather than a security mechanism? I imagine that security related crimes will go through the Commissioner of the Garda Síochána in any event. Will the Army use telephone tapping as a way of gathering Army intelligence? I ask the Minister to clarify this point as it raises certain issues. I am not saying that I am necessarily opposed in this practice, but we need to be clear about what we are doing in this legislation. As I understood it initially, the purpose of the legislation was to assist the Garda in the main in detecting crime and finding out what is going on. I did not anticipate that 'phone tapping would ever be used as a way of aiding and abetting Army intelligence.
I apologise to Deputy Harney, I forgot her name was on the amendment. I confirm that the amendment I am accepting in substance is the amendment proposed by Deputies Harney, Mitchell and Browne.
With regard to the second part of the Deputy's question, an authorisation can be sought by the Army to intercept a telecommunications message where the security of the State is an issue. I wish to make two points in this regard. First, the purpose of the Bill is to put on a statutory basis the present administrative practice which has been administrative practice since the foundation of the State 70 years ago. Second if I was to accept Deputy Gilmore's amendment, it would give rise to a peculiar situation. For example, if the Army was investigating a case of espionage, which is basically what we are talking about, and the people involved were all members of the Defence Forces, one person would be empowered to apply for the authorisation. However, if 20 members of the Defence Forces and one outside person were involved in a case — even if that person's phone was not being tapped — the Garda Commissioner would have to make the application for the authorisation. That does not seem correct; it seems a bit odd to say the least of it.
As I said, it is envisaged that the authorisation will be used in Army intelligence but only where the security of the State is at risk. Not only will the Chief of Staff have to be satisfied that the security of the State is at issue, the Minister for Defence will also have to be satisfied that it is at issue — the authorised officer in the Department of Justice will have to be satisfied that it is at issue and, ultimately, he or she will have to satisfy the Minister for Justice. Several safeguards are built into this provision and I do not envisage that it will be used on a widespread basis in terms of the Army intelligence aspect.
Progress reported; Committee to sit again.