I understand amendment No. 5 is being discussed with amendment No. 5a.
Interception of Postal Packets and Telecommunications Messages (Regulation) Bill, 1992 [Seanad] Committee Stage (Resumed).
Debate resumed on 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.".
—(Proinsias De Rossa).
We had a fairly long discussion on this point ranging over two days. I would like to ask the Minister of State if, having listened to the contributions during the two days, he would now consider changing or modifying the position he articulated on the first day we discussed the issue?
When we discussed this issue on Thursday last before the House moved on to other matters the Minister had given an indication that he intended to bring in an amendment — presumably on Report Stage since there is no amendment down in his name for Committee Stage — to substitute the Chief of Staff of the Permanent Defence Forces in lieu of a nominated officer of the Defence Forces. The Fine Gael Party and I had tabled an amendment to that effect. That would put the person who is responsible for initiating the interception of a telecommunications message in the Defence Forces on the same footing as the Garda Síochána; in other words the head of the Garda Síochána and the head of the Permanent Defence Forces — other than the President — in the Army.
I thank the Minister of State for his willingness to accept this amendment. As Deputy Gilmore said, this matter has been well aired and I hope we can finish Committee Stage today, perhaps before lunch because the Criminal Law (Suicide) (No. 2) Bill, 1993 will be debated later. I should like to reiterate what I said on the Order of Business this morning and I do not mean to be unfair to anybody. I have been a Minister of State and I know the responsibilities of officeholders and particularly of the Minister for Justice. The Department of Justice is one of the law reform Departments of State but thankfully the civil side of law reform has gone to another Department. It is quite appalling and unacceptable that we have yet to see the Minister for Justice in this Dáil come into the House and deal with the Committee Stage of a Bill. It is unfair to the House and it is unfair on the Minister of State, althought he does not need me to defend him. Can the Minister of State clarify whether there is a delegation order giving him responsibility to take particular Bills through the Houses of the Oireachtas? When will we see the Minister in the House doing the real work on Committee and Report Stages of Bills rather than simply opening the debate, followed by nice glossy PR and statements all over the country? The Minister's first duty is to this House and to be here to listen to Deputies' contributions and to deal with the tedious Committee Stages of Bills. I hope this is the last time we have to take a Bill through the House without the presence of the Minister for Justice.
(Carlow-Kilkenny): While I agree with Deputy Harney and what she has said about the absence of the Minister, I am not unduly upset because we have such an able Minister of State who actually proves that all the intelligence is not confined to Government. Most Ministers cannot listen to anything that is said on this side of the House. I listened to the debate on the Refugee Protection Bill, 1993, last night and having heard some of the comments from the far side of the House I began to wonder whether we were living in two different worlds. It is good to know the Minister can accept one of our amendments because it is commonsense. I compliment him for having the intelligence and being sufficiently broadminded not to think that everything on this side of the House is wrong.
I thank Deputies for their kind remarks. We are discussing amendments Nos. 5 and 5a in the names of Deputies Gilmore, Jim Mitchell, Brown and Harney. The effect of amendment No. 5 would be to substitute the Chief of Staff for the person not below the rank of colonel who would submit the application for authorisation on the grounds of State security. The effect of amendment No. 5a would be to restrict the powers of the Defence Forces to apply for authorisations. As I said on the last day, I am prepared to accept the substance of amendment No. 5. I cannot accept it as it stands because it requires consequential amendments to section 7 and possibly also to the definitions sections. I suspect we will use the words "Chief of Staff" in the actual section and in the definitions section we will have a definition stating that the "Chief of Staff" means "the Chief of Staff of the Permanent Defence Forces".
In relation to amendment No. 5a, originally submitted by Deputy Gilmore, I have listened carefully to the arguments and some very good points have been made but for the reasons already stated, unfortunately I cannot accept that amendment. I have taken further advice on this matter since our discussion the last day. Basically, we are putting the administrative practice into statutory form. People will be aware that if an administrative system is put on a statutory footing it is made applicable in accordance with statute law. By its nature an administrative procedure is loose and it allows room for the administrators to manoeuvre. Our intention is to put it on a legal basis and tighten it up. We are putting the present administrative system which operates in relation to Army intelligence, where the security of the State is in danger, on a statutory basis — no more and no less.
I accept it is an improvement that the applicant for an authorisation in the case of the armed forces will now be the Chief of Staff. Nevertheless there is a fundamental issue which has not been resolved by this discussion and it relates to the extent to which the armed forces should have a role in policing the civilian population. My proposed amendment provided for a mechanism whereby if there was a threat to the security of the State involving a member of the Defence Forces, the Defence Forces, through the Chief of Staff, would have the right to apply for an authorisation. In the case of a civilian, it would be proper that any such application should be routed through the Garda. It would be very dangerous to have the Defence Forces involved in what is essentially the policing of the civilian population. We have argued the point considerably at this stage and I think we should now dispose of it. I would ask you to formally put the question.
Question: "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendment No. 5a cannot now be moved.
I was going to withdraw the amendment as the Minister of State is bringing in an equivalent amendment on Report Stage, but I did not think that it could not be moved; they are not alternatives.
As amendment No. 5 is now negatived, amendment No. 5a cannot now be moved.
Can something equivalent to that be moved on Report Stage?
Yes.
Amendment No. 5a not moved.
Section 6 agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
This section provides for the cessation of interceptions. Where the Commissioner of the Garda or, presumably, the Chief of Staff come to the conclusion that an authorisation is no longer required, that it is no longer necessary to intercept telephone calls or post, etc., they will negative the authorisation. Once an authorisation is given there is a tendency for it to stay in effect unless the Commissioner of the Chief of Staff seeks to have it negatived. Will the Minister clarify what controls there are? Is it the case when authorisations are granted they will begin to stockpile? I am concerned that the Commissioner of the Garda may not go through the authorisations that have been granted and seek to have them set aside. What assurance can the Minister give that this aspect of the legislation will be monitored so that there will be no stockpiling of authorisations?
Section 2 provides that an authorisation, once given, will only remain in existence for three months and if the Garda or the security forces want to extend it they must go through the initial procedures again.
Section 7 relates to an authorisation that is voluntarily given up by the authority which got it in the first place. In the case of an authorisation which has existed for, say, one month and which is no longer yielding any useful information, the Commissioner and/or the Chief of Staff can voluntarily terminate the authorisation. They do not have to inform the Taoiseach where it is compulsorily terminated by a complaints referee or the presiding judge. If it is a voluntary termination there is no need to inform the Taoiseach or the Minister for Communications. If an authorisation has been in existence for a month and has not been voluntarily terminated and it comes to the attention of the authorised judge who is supervising the procedure that it is no longer useful, he can order it to be terminated.
Question put and agreed to.
NEW SECTION.
I move amendment No. 6:
In page 9, before section 8, to insert the following new section:
"8.—At the end of the six month period following the enactment of this Act and at the expiration of every subsequent six month period the Minister shall publish or cause to have published in Irish Oifigiúil a report which shall include the following details in respect of the period in question:
(a) the number of warrants issued for the interception of postal packages; the number of addresses in respect of which such warrants were issued; and the number of postal packets intercepted.
(b) the number of warrants issued for the interception of telecommunications messages; the number of addresses or mobile units in respect of which such warrants were issued; and the number of telecommunications messages intercepted.".
Section 8 provides for a review of the operation of the Act by a judge of the High Court. Of its nature this is an area where confidentiality necessarily forms part of the operation of the legislation. I entirely accept that the monitoring of persons suspected of criminal or subversive activity must be dealt with in a very confidential and discreet way. One obviously cannot advertise whose post or telephone calls are being intercepted.
However, it is necessary that the public should have some information regarding the extent of theuse of the powers provided for in this legislation and that needs to be done in a way that is simpler, more open and more transparent than the periodic reviews provided for in section 8. The mechanism I propose is simple; every six months following the enactment of this legislation, information should appear in Irish Oifigiúil relating to the number of authorisations that have been issued, the number of interceptions that have been effected and the number of addresses in respect of which warrants have been issued. That type of information is very necessary, first to provide the public with information regarding the extent to which this legislation is being used and, second, to assure the public that there is no abuse of this legislation.
I appreciate that there are provisions in the Bill regarding the procedure that must be followed in requesting authorisation. We debated here before the concern that some of us on this side of the House have in regard to oral requests for authorisations. We know that what gave rise to the publication of this Bill related to what appeared to be a very close relationship between senior personnel in the Garda and Government Ministers. We have to protect against the legislation being abused and it is desirable that the public have information about the extent of the use of the legislation, be able to see, for example, from one six-month period to the next if there is any change. If one found in a particular six-month period after, say, a change of Government that there was a dramatic rise in the numbers of authorisations and warrants being issued, one might draw the conclusion that there was other than a legitimate enthusiasm on the part of the Minister to crack down on crime. There is a need to provide basic information to the public about the operation of the Bill.
The information sought in the amendment is purely numerical and does not compromise or prejudice the confidentiality of matters relating to the identity of those whose telephones are being tapped or whose post is being intercepted. Therefore, it does not compromise the operational effectiveness of the legislation in dealing with crime or subversive activities. It is purely a provision to provide the public with information and to give them an assurance that the legislation will not be abused at some time in the future by an enthusiastic Minister operating closely with an enthusiastic Garda Commissioner.
I support Deputy Gilmore's amendment, which is reasonable. When I first read it I thought the question of confidentiality might be breached because I am concerned that the addresses of persons whose telephones are tapped would not be released, for their own sake and because of the security and crime implications. Deputy Gilmore has got it right. The Minister of State at the Department of Finance made a speech a few days ago about a new Freedom of Information Bill. I would welcome legislation in regard to freedom of information because I am aware how difficult it is to get basic information from the State, even about people's basic entitlements. As a Minister of State, I often saw files with the words "strictly confidential" written across the top of them which did not contain any information that could not be given to the country at large. We are paranoid about confidentiality, we inherited that from the British and the sooner we get rid of it the better. If a Freedom of Information Bill is introduced then the basic information sought in this amendment should not cause a problem. Deputy Gilmore's amendment does not request the peoples' names, addresses or telephone numbers should be given, it simply requests the necessary data for a review or an analysis of the legislation. Such data is lacking, the Minister's Department has not published an up-to-date report on the prison service since 1988. Therefore, people cannot get basic information to compile statistics and do analytical or basic research work to allow them to put forward intelligent suggestions regarding legislation. The same applies to the probation service. The last report on the operation of the probation service was also published in 1988. Therefore, basic information is not forthcoming from Government, particularly from the Department of Justice.
Following the implementation of this legislation, will a Deputy be able to seek the information referred to in the amendment by way of a Dáil question? The Deputy would probably be told that the information sought is confidential and cannot be given or, as frequently happens, that it would take an inordinate amount of staff time to compile it. I have been given that answer on many occasions when I petitioned the Minister. The Minister of State referred to the fact that he would need a wheelbarrow to bring documentation to the Irish Oifigiúil office so that we could get basic information about the number of petitions to the Minister and the decisions taken regarding them. It is impossible to get basic information. We act on behalf of the public; as one of my colleagues stated on a number of occasions, we are contractors to the public. The public has a right to basic information and, by inserting this amendment in the legislation, such information would have to be published in Irish Oifigiúil, the official publication of the State.
This amendment is not offensive and if the Minister is unhappy with its wording, I ask him to at least state that he will table a similar amendment on Report Stage. I am sure Deputy Gilmore would be happy with that. The amendment strikes a balance between the need to protect sources so that crime and the possible subversion of the State can be investigated and the need to protect the confidentiality of the people whose telephones or postal packages are being intercepted, yet gives citizens the basic information to which they are entitled.
(Carlow-Kilkenny): When I first read the amendment I had visions of investigative journalists identifying the five people whose telephones had been tapped and all sorts of articles being written in that regard. However, as we have now put 'phone tapping into the legitimate world of business there is no reason the information sought should not be available in a democracy because the interception of postal packets and 'phone tapping should be done only on a legal basis. Therefore, everybody should be entitled to know how many times there was a need for this. The information sought in Deputy Gilmore's amendment should be available. As the people involved will not be named, there should not be any adverse consequences. It will probably lead to newspaper headings referring to suspected people but that will only happen because of the desire of journalists to fill space. Therefore, I support the amendment.
I take the points about freedom of information. As a back-bencher, I frequently experienced the type of frustration about which Deputy Harney spoke in trying to get information from various Departments. As Deputies will be aware, the information referred to in Deputy Gilmore's amendment is not supplied although the reasons are not clear.
In regard to this amendment, the designated judge appointed will have the duty of publishing a report every two years. That does not mean he cannot publish a report more frequently. It will be up to the designated judge to decide whether his reports, which will be laid before both Houses of the Oireachtas, should contain the statistical information referred to in the amendment. There may be a valid reason for not supplying the information sought in Deputy Gilmore's amendment in the designated judge's report. However, as it is our intention to appoint a High Court judge to oversee the operation of this Act, it would be better to let him decide if such information should be included. He will be dealing with individual cases in a position to get all the necessary papers. He will have a close-up view of the operation of the Act and the implications of leasing such statistical information. That is the approach we are adopting at present.
The Minister of State has not addressed the question. The procedure in section 8 for reviewing the operation of the Act by a judge of the High Court is acceptable. My understanding of the section is that that review will include a judge of the High Court examining the justification for the interception of information. That judge will have an opportunity to examine the documentation, to talk to the relevant people and make an observation as to whether there was abuse in a particular area. However, it is not clear that a judge of the High Court will provide the type of information I am seeking. Even if he did, section 8 (8) gives the Taoiseach an effective veto in relation to the publication of any material contained in the judge's report. That subsection states that if the Taoiseach considers, after consultation with the designated judge, the publication of any matter in a report under subsection (2) of this section would be prejudicial to the prevention or detection of crime or to the security of the State, the Taoiseach may exclude that matter from the copies of the report laid before the Houses of the Oireachtas. Notwithstanding the requirement to consult with the judge concerned, that effectively gives the Taoiseach a veto on the publication of information. We do not live in an ideal world, the circumstances which give rise to the public concern which led to the introduction of this Bill were based on the fallibility of Ministers and senior Garda personnel.
We know that there can be abuse. This legislation gives very extensive powers to the Minister and to the Garda to intervene in what most of us would regard normally as private telephone conversations and private correspondence between people. We accept that in order to deal with the combating of crime and threats of subversion it is necessary, on occasion, for the State to intervene and obtain information which would be essential in detecting or preventing crime. That is accepted by this House, but what we must ensure is that the powers which are given to the Minister in this legislation will not be abused. How can we do that? One way this can be done is by the provision in the Bill which allows a review by a High Court judge. While that is acceptable it still does not make public abuses of the legislation for, let us say, political purposes.
I referred here before to the way in which the Government in a neighbouring State defined the word "subversion" during an industrial dispute. During the miners' dispute the Government of the United Kingdom at that time regarded the miners' dispute as an act of subversion. Many of us would regard the miners' dispute as an industrial dispute — a nasty industrial dispute — and one which had many knock-on effects and which brought strikers into conflict with the police. But to regard it as an act of subversion seems to me to be stretching the point somewhat. Governments and Ministers can often become paranoid about what they regard as subversion. Governments, Taoisigh and Ministers who are concerned, for example, with the pursuit of power or the retention of power for its own sake, can sometimes see threats to the security of their positions as tantamount to a threat to the security of the State.
For example, if a Minister were to come to the conclusion, as happened here before, that the writings of a journalist amounted to a threat to the security of the State and issued authorisations against large numbers of people who might be engaged in political or trade union activity, the public in that case would need to see that information. Once we have an early indication of the figures — I suspect they will be more than the five mentioned by Deputy Browne — the public will be aware of the size of the problem. In regard to organised crime, subversion and so on, one would know within, let us say, the first six months the number of authorisations which were required in that period. Most of us would understand that there would be some variance in that figure from time to time. There might perhaps be some considerable increase in it at certain times when there might be a dramatic rise in crime or concerns about particular forms of organised crime. If one were to see, for example, large increases in the numbers of authorisations or increases associated with changes of Government, changes of Minister or changes of Garda Commissioner, it might give rise to a certain amount of concern.
The issue here is a question of information on which the public can reach certain conclusions concerning the operation of this legislation. It is an additional safeguard for the public; it is information that the public is entitled to have. The Minister indicated he was not entirely clear as to why this information was not being provided. I am happy to leave the matter until Report Stage if he wishes to clarify that between now and then. However, I do not see any reason why numerical information of the type I am seeking cannot be made available. Deputy Harney and Deputy Browne have both strongly supported this amendment and I appeal to the Minister to reconsider it and perhaps take it on board.
Those of us in Opposition are required to toil without the assistance of the expertise available to the Minister. Therefore, if there are technical difficulties with the amendment I am happy to take account of that. However, this amendment would insert a provision in this legislation which would assure myself and the public that the chances of it being abused would be greatly minimised.
(Carlow-Kilkenny): In view of what Deputy Gilmore has said regarding Report Stage, the Minister suggested that the judge might decide to publish the information. On my reading of the section the judge has no choice in the matter because he reports to the Taoiseach or to the Ministers. His decision to publish would be very limited. Without being too frivolous, judging by the way the present Taoiseach does not provide information in the Dáil I doubt if he will stick his neck out and publish this information without having the relevant provision in the Bill.
I was disappointed with the Minister's response because he said on the one hand he could not think of a reason not to accept the amendment, and he could not think what reason a judge might have for not making available this type of information. Yet he wants to leave it solely to the discretion of the judge. The Minister pre-empts the amendment in my name but since he has a majority I am sure he is giving me an indication that he will not be accepting it. However, as I said on the last occasion, a national paranoia seems to exist where unless you have a judge you do not have a fair and impartial person. I find this hard to accept. That is not to say that I will not make a proposal at some future stage which would require the competence of a judge and I do not wish the Minister to hold me on that. The Minister wants to leave the decision to a judge and I do not think that is acceptable.
At the very least, the Minister must provide in the legislation the kind of framework that will indicate to the judge what is expected of him in his report. It is not good enough for the Minister to say that if he or she — I envisage there might be a "she" involved and I hope there will be — felt it necessary to inform the public about the number of warrants issued, that would be acceptable. However, if judges felt for some reason that the public had not the right to this information, they would not make it available. That is not good enough and it files in the face of all we have heard from this Government regarding openness, accessibility to information and the proposed freedom of information Act.
What we are requesting here is very basic information. We want to ensure that the new legislation which we are putting in place will avoid the kind of difficulties that arose in the past which allowed Ministers to abuse their positions, in co-operation with others, and to invade the privacy of journalists. I hope we never see that situation arising again but in recent times we saw the invasion of privacy not through telephone tapping but through the recording of a telephone conversation and its subsequent presentation to a newspaper. I do not want to go into that issue because the newspaper in question has apologised. They had the good grace to take that action. However, we must be careful and we must place on a statutory basis the safeguards that we all wish to see. I do not wish to have legislation so stringent that we would prevent the investigation of crime. We give a fair amount of flexibility to the Garda Síochána and those who investigate crime on our behalf. I do not see why access to basic statistical information, which Deputy Gilmore's amendment seeks, cannot be provided for under this Bill. There should be a statutory obligation on the Government to produce such information in Iris Oifigiúil. If the Minister could give me a good reason for rejecting this amendment I would probably be inclined to accept it, but I cannot understand how the Minister can think of no reason and yet will not accept the amendment. If we are to have change in this House, and debates are to be meaningful, when a Minister of State can think of no good reason why an amendment should not be accepted that should be good enough reason to adopt it.
Deputy Gilmore has reasonably said that his amendment need not necessarily be accepted as there may be some technical problem in regard to it. The Minister has a plethora of people in the office of the Minister, the parliamentary draftsperson's office, the Office of the Attorney General and so on available to him and he is in a better position to frame a technical amendment that could overcome any difficulties. The spirit of what Deputy Gilmore is seeking should be addressed by the Minister and an amendment should be introduced on Report Stage to provide for the issuing of basic statistical information.
If I wanted to be contentious I could say Deputy Harney's assertion that the Government is hung up on the idea that nothing is fair unless a judge is involved and that there cannot be a a fair and impartial person apart from a judge, contradicts much of Deputy McDowell's argument last night in regard to the Refugee Protection Bill, 1993 and, indeed, much of Deputy Shatter's argument also.
How does it?
I am sure I will be debating that with Deputy Harney in due course. The Deputy stated that I could think of no good reason for rejecting this amendment. No good reason immediately occurs to me but I must take the advice of the experts in this regard. The Department of Justice is of the view that in certain circumstances the release of such information might be prejudicial to the prevention of crime or to the preservation of the security of the State. They are the people who have been dealing with legislation every day since the foundation of the State and I have been in this Department only 13 months.
Deputy Gilmore made the point that the Bill provides extensive powers to the Minister for Justice but I argue that is not so. Those powers exist in an administrative way but this Bill puts them on a statutory footing which, if anything, restricts them. We are putting them not only on a statutory footing by making the Minister act in accordance with the law but we are providing also two new fundamental safeguards in respect of the complaints referee and the designated judge. The designated judge has total discretion in respect of what he reports, for example statistical matters, the general operation of the provisions of the Bill, the number of violation of the Act and so on.
Deputy Gilmore said there is a veto and he recognises the reason for the Taoiseach's veto in relation to what will be contained in the report to be brought before the Dáil. The veto, contained in section 8 (8), refers specifically to matters that would be prejudicical to the prevention or detection of crime or to the security of the State. It obliges the Taoiseach to consult with the designated judge before he may exclude any information and obliges the designated judge also to state in his report to the House whether any information has been excluded. The Taoiseach has the final say in this regard.
A High Court judge has experience of the law and is the person designated to review this procedure. If the Taoiseach of the day were to have a discussion with a High Court judge and hold the view that the release of figures may in some way be prejudicial to the security of the State or the prevention of crime and the High Court judge disagrees with that view, the Taoiseach, the person overseeing the Act and responsible for bringing the report before the House, may insist on excluding such figures. Deputies would not have to use their imagination to realise that such discussions would give rise to political difficulties for the Taoiseach. That position could not continue indefinitely and the procedure for consultation with the High Court judge is not in place, as it were, for window-dressing; it has a real effect.
On why this information is not issued, there may not be any difficulty in stating at present so many official warrants exist but having listened to Deputy Gilmore, I am aware of one reason it might be dangerous to reveal this information on an ongoing basis. It would highlight a pattern in relation to crime. The initial report might state that there are 20 official authorisations in existence, the next report might state there are 18 or 21 and the average number of authorisations for a period might be 20. There might be an upsurge in a particular crime and the number could increase to 50 or 60. In those circumstances, the people being investigated may conclude that their telephones are being tapped.
We do not need to think up obscure reasons why we should not accept reasonable proposals; I am not in favour of that, but we have to bear the circumstances I have outlined in mind. Perhaps some middle ground may be found in relation to the proposals in the Bill and those in Deputy Gilmore's amendment by including a provision obliging the judge in his report to include this information unless he has reason not to do so. That might be a compromise. I will put that proposal to the Department and ask if there would be any reason to reject it. As evidence of my good faith, I understand this is the first time such information has been revealed to the House. From my inquiries there are 40 official interceptions authorised by the security forces at present.
I thank the Minister of State for volunteering the information regarding the number of authorisations which exist. The Minister's reply, in a sense, confirms some of the fears I have in relation to the approach to this legislation. He invited us to imagine the exchange which might take place between a Taoiseach and a High Court judge over the publication of aspects of the High Court judge's report. If we are now in the era of freedom of information and access to information, we need more transparency than being invited to imagine the discussions between the Taoiseach and a High Court judge or to imagine where those discussions might lead ultimately if there was a disagreement between them of the type described by the Minister.
I accept that the Minister intends on Report Stage to introduce some formula to deal with this issue. I do not think the information I seek necessarily needs to be confined to the High Court judge's report which would only be issued, at best, every two years or so. This should be made available on a regular basis. What concerns me most about the Minister's reply was his statement that he was not in the position to state any reason why the numbers of authorisations, warrants and so on could not be released from time to time. He stated that there might be cases relating to the detection of crime or the security of the State where it would be necessary to deny the public access to this information.
I am concerned that if there is any doubt about giving the information, the security of the State or the battle against crime will be pleaded. That is the most worrying aspect of his statement.
We are talking about very basic information. The Minister has volunteered information on the number of authorisations which currently exist. He has described an administrative means which already exists within the security forces for the detection of crime. I do not imagine that the enactment of his legislation will dramatically change the numbers of authorisations granted. The Garda know the people engaged in organised crime and subversive activities in this State. In view of the fact that there is very little room for an increase or decrease at the margins, I do not think that this will dramatically change. However, I can envisage circumstances where information will come to hand about an attempt to import arms. There has been a number of examples in recent years of large importations of arms where Garda operations had to be undertaken in an attempt to recover them. I envisage that, in attempting to deal with such crime, there might be an increase in the numbers of authorisations issued.
We should know the number of authorisations in a six month period. If there was a dramatic increase and that information was known publicly, it would be open to Members of this House to ask the Minister for Justice why this was the case and to give reasons. I think it is accepted and understood that this has to be done. Any criminal engaged in crime in a big way who is in any doubt about the possibility of his 'phone being tapped is very unwise, to put it mildly, having regard to the age in which we live and the technology which is available to the security forces. It is generally known and accepted that this method of attempting to get information is used and can be used more frequently.
I am prepared to accept that the Minister will come back on Report Stage with some kind of a formula to deal with the aspect I am attempting to progress. I will have to leave it until then to see whether the formula is adequate to meet the objectives in my amendment. We need to get away from the practice, every time there is a doubt about the reason for something, of saying that there may be a threat to the security of the State, it is needed to fight crime, etc. Such phrases can cover a multitude of matters and, of course, by their very nature they are a euphemism for "I really do not have an answer. You cannot ask any further questions about the matter as you will be compromising a Garda operation, prejudicing it, etc." There needs to be more transparency about the scale and size, etc., of an operation without necessarily impacting on individual operations covered by the legislation.
It is very interesting that the Minister has volunteered information in relation to the current number of authorisations but has refused to accept an amendment on the grounds that the experts, as he called them, advised him to so do, although he could not think of particularly good reasons for accepting the amendment. I do not mean any offence to the experts but official thinking is that one should not give any information or tell people anything if one can avoid doing so. We have inculcated a culture in our public servants that they must not release any information, that the Minister must release all the information. However, if the news is bad and someone has to be blamed, unfortunately all too often it is a public servant who cannot defend himself. Generally speaking, the Minister gives the information and, therefore, he decides whether it is an official secret. The official thinking is that no information should be released. The Minister is not being very realistic when he says that the experts have told him not to accept the amendment, that he cannot think of good reasons but that they may arise in the future. That is a justification for not having legislation or safeguards. In other words, we might need to do particular things in the fight against crime or because the State is being subverted, so why have legislation which would only hinder us? I do not accept the Minister's argument.
I do not regard the 40 authorisations as excessive. However, I should like the Minister to clarify a point as this figure may be taken out of context publicly. I presume the 40 authorisations do not necessarily relate to 40 people, that there could be a number of authorisations in regard to one person.
I agree with Deputy Gilmore that security of the State or crime can be used as an excuse to do many things. In fact, the reason for this legislation is that the then Minister used as a justification for abusing his powers — which lead to a public outcry for this kind of legislation and proper safeguards before telephones could be tapped — the subversion of the State; he suggested that because individual Deputies in his party were subverting the State the telephones of certain journalists must be tapped. This was an appalling assertion. There was absolutely no grounds for suggesting that the State was being subverted. All kinds of other colourful suggestions were made by the then Minister.
As Deputy Gilmore rightly said, subversion of the State can be used as an excuse for allowing people to do literally anything. I do not think it is good enough to have such a lax provision. Having said that, as I said earlier to the Minister, I do not wish the law to be so rigid that we cannot intervene and intercept postal packages and telecommunications messages when the Garda or the Chief of Staff of the Army, as the case may be, believe that by so doing they can gather important information which will help in the fight against crime. Crime has reached alarming proportions in this country, and I would be the last person to try to tie the hands of the Garda Síochána in their fight against crime. Subject to proper safeguards and controls, the Garda Síochána need to be given whatever weapons are necessary in its fight against crime, by this I mean whatever legislation is necessary. Much of our legislation needs to be changed. I do not wish to digress from the subject we are discussing, but the legislation dealing with public order dates back to, I think, 1824 and is grossly out of date.
I note that the Minister was more forthcoming in his last comments. When a Minister is forthcoming I do not wish to antagonise him. The Minister should look at this issue between now and Report Stage and come up with a reasonable amendment. If there are very good reasons, and the designated person can spell them out, for not giving information in a report then I will be happy with that.
We should remember that the information will be given subsequent to the event. Even though this amendment refers to six months, as Deputy Gilmore said, if the Minister of State puts down an amendment which requires the designated person to put the information in his report, which probably will be every two years — the Bill says not more than two years but, realistically speaking, it will probably be every two years — then we are probably talking about an event which is long past. Therefore, I do not think anyone would be necessarily alarmed by the fact that the number of authorisations had increased from 20 to 60.
If most people knew there were safeguards in place — which there will be when this Bill is passed — they would be quite happy if it were felt necessary to have 50, 60, 70 or whatever the number of tappings, perhaps during a period when there has been a dramatic increase in crime. Then I think most people would support the interception of postal packets or telecommunications messages.
In the hope of concluding the debate on this amendment I will deal with one or two points raised. There appears to be a misconception about the two-yearly reporting interval. Two years is the maximum period in that the section states, at intervals of not more than two years. Therefore "the designated judge" could have a yearly report, a six monthly report, a three monthly report, a monthly report or a weekly report — although that probably would be somewhat impractical — or even a daily report.
We know what that means.
Deputy Gilmore said at best every two years and Deputy Harney said that if there had been an increase from, say, 20 to 60 after two years, but we cannot assume that the reports will be made on a two yearly basis only; they might be considerably more regular.
(Carlow-Kilkenny): My amendment stipulates “twelve months”.
We should bear in mind that 1988 was the last one. The Minister of State knows that reports do not appear that often.
I am dealing with the interception of telecommunications. The fact is we are putting an obligation on "the designated judge" to report at not more than two yearly intervals; not alone that, but he has also additional reporting powers with which I will deal when we come to that amendment. In relation to the other question posed by Deputy Harney in relation to the 40 authorisations, my understanding is that that relates to 40 separate applications. That is my information.
Is that in relation to 40 different people?
Yes, that is what I have been told. In relation to the argument we heard last evening, that if one has reason for not including safeguards one might as well never have any, the fact is that for the police — I am not a policeman or a member of military intelligence; I have been in this Department for 13 months — the investigation of particular types of crime, indeed of all crime, is a highly specialised area, as is military intelligence. Within those specialisations there are additional specialisations; for example, espionage is a particular type of crime, as is larceny, subversion and so on. The Minister for Justice, who is the political head of the Department, has to take some advice from the experts. It would be totally unrealistic for me to convert myself into being a member of military intelligence, a member of the Special Branch, of the Fraud Squad, or whatever, and pretend to be an absolute expert in every detail on the types of activities in which they must engage. I have to rely on the advice of the people who have been entrusted to do that job on behalf of our people on at least some occasions.
Deputy Harney contended that people would not object to an increase in official taps over a period of time if there was an upsurge in crime. I agree with that; people do take a reasonable attitude to that. But what I am concerned about is not just what people accept. While I am, of course, concerned about what the people accept, my concern is not only about that, Deputy Gilmore put his finger on it when, to a certain extent, he argued against his own case in the course of his contribution. He said that if there had been a dramatic increase in crime over a particular period, and this matter had to be referred to the Dáil every six months, Deputies could come in to the House, ask the Minister for Justice for an explanation and the Minister for Justice could explain the reasons which Deputies would accept.
Provided we knew there had been an increase.
That would be fair enough but it is not merely a question of Deputy Gilmore or of the people being aware of it; one would be alerting the people who are the subject of such taps, thereby undermining the legislation. That is my difficulty. I am in favour of greater freedom of information. I am in favour of people being able to come into this House to ask questions and receive reasonable answers and/or information. I am against a system through which there would be too many authorisations. On the other hand, I must bear the other aspect in mind as well. As second in control on the political side of the Department of Justice, I have to bear that in mind as well.
Although my experience of criminal law is somewhat limited I have had a reasonable experience of it. I know there can be circumstances when there will be an upsurge in a particular type of crime or in subversion, and additional taps are put on. In such circumstances the information then being publicly made available, that the number had increased, could possibly alert people. That is what I am concerned about. That is why, rather than accept Deputy Gilmore's amendment, I should prefer to talk to the departmental experts about it to see if it is necessary to compel "the designated judge" to include this in his report, if deemed to be absolutely necessary, in the interests of the prevention of crime or when, in the interests of the preservation of the security of the State, it could be excluded in a particular instance.
I have no hang-up about giving the information. I have given the information on what the position is at present but a sudden change in a pattern possibly could enable people, who would otherwise be apprehended, to go free. It could also have very serious implications in relation to subversion in a particular instance, when we would all be very sorry afterwards bearing in mind that if these people had not been alerted to the fact that their telephones were being tapped, this material could not have come in, and people would not have been blown up. I am not seeking abscure reasons but I must bear this aspect in mind.
It is my intention to discuss the matter with the parliamentary draftsman to ascertain whether we can reach some type of reasonable compromise to meet my genuine concern while, at the same time, responding to the demands for more information.
Is amendment No. 6 in the name of Deputy Gilmore being withdrawn?
Yes.
Amendment, by leave, withdrawn.
Acting Chairman
We move on to amendment No. a6a. in the name of Deputy Harney.
NEW SECTION.
I move amendment No. a6a:
In page 9, before section 8, to insert the following new section:
"8.—(1) The Committee for the time being existing for the purpose of section 2 of the Prosecution of Offences Act, 1974, shall, when requested by the Minister, select a person (not being a serving judge) for appointment to be a designated person and such person shall be designated by the Government for the purposes of this Act.
(2) A person designated under this section (referred to in this Act as "the designated person") shall hold office in accordance with the terms of his designation and shall have the duty of keeping the operation of this Act under review, of ascertaining whether its provisions are being complied with and of reporting to the Taoiseach—
(a) at such intervals (being intervals of not more than two years) as the designated person thinks desirable in relation to the general operation of the Act, and
(b) from time to time in relation to any matters relating to the Act which he considers should be so reported.
(3) For the purpose of his functions under this Act, the designated person—
(a) shall have power to investigate any case in which an authorisation has been given, and
(b) shall have access to and may inspect any official documents relating to an authorisation or the application therefor.
(4) The designated person may, if they think it desirable to do so, communicate with the Taoiseach or the Minister on any matter concerning interceptions.
(5) Every person who was concerned in, or has information relevant to, the making of the application for, or the giving of, an authorisation, or was otherwise concerned with the operation of any provision of this Act relating to the application or authorisation, shall give the designated person, on request by them, such information as is in their possession relating to the application or authorisation.
(6) If the designated person informs the Minister that a particular authorisation that is in force should not have been given or (because of circumstances arising after it had been given) should be cancelled or that the period for which it was in force should not have been extended or further extended, the Minister shall, as soon as may be, inform the Minister for Tourism, Transport and Communications and shall then cancel the authorisation.
(7) The Taoiseach shall cause a copy of a report under subsection (2) of this section together with a statement as to whether any matter has been excluded therefrom in pursuance of subsection (8) of this section to be laid before each House of the Oireachtas.
(8) If the Taoiseach considers, after consultation with the designated person, that the publication of any matter in a report under subsection (2) of this section would be prejudicial to the prevention or detection of crime or to the security of the State, the Taoiseach may exclude that matter from the copies of the report laid before the Houses of the Oireachtas.
(9) The designated person shall, subject to the provisions of this Act, be independent in the discharge of their functions.".
First, I want to thank the Bills Office for their marvellous work in helping me draft this amendment. Despite the fantastic legal expertise within my party I do not have the volume of expertise available to the Minister. Therefore, the Bills Office were of invaluable help to me and I should like to record that.
As the Minister of State knows, I had tabled an earlier amendment to substitute "the designated person" for "the designated judge". I did that for a number of reasons. We in this country need to realise that there are more impartial persons, as I said earlier to the Minister of State, than judges. The Ombudsman is a case in point. The Ombudsman's function and the purpose of having an Ombudsman is to vindicate ordinary people's rights. Therefore, somebody like the Ombudsman might be a suitable person to oversee the implementation of the safeguards in relation to the interception of telecommunications messages, but he is not the only person. The method we selected for the appointment of the Director of Public Prosecutions is generally regarded as being a fair and impartial way of appointing that officeholder. The 1974 Act, which established the office of the Director of Public Prosecutions, provides for the establishment of a committee which must meet to agree on a named person to serve as Director of Public Prosecutions.
When I was framing the environmental protection legislation, seeking an independent mechanism for the selection of the director general and the board of the agency, I looked at the provisions of the earlier Act. The committee which eventually was decided on was very much modelled on the provisions of the 1974 Act. As the Minister of State knows, that Act provides that the Secretary to the Government, the Chief Justice, the chairman of the Bar Council, the president of the Incorporated Law Society and a senior officer from the Attorney General's office should comprise the committee which would meet to select the appropriate person.
That would be the appropriate committee to meet to select the person to oversee the provisions of this Bill. For a number of reasons, I do not want to see a serving judge act as the overseer. For example, as I said to the Minister of State, the judge could be involved in a subsequent trial. There is nothing in this Bill stipulating that the judge cannot sit at a trial when he has been involved in a hearing and been aware of a telephone tapping incident. I know the Minister of State said he has an assurance from the Bar Council that anybody nominated by the President of the High Court to oversee the implementation of the safeguards being provided in this Bill would not sit at a trial. But that is self-regulation in that the Bar Council is not regulated by statute. It is not good enough that we leave it to the discretion of the individual judge to exclude himself. We may accept that judges are honourable people and will exclude themselves but say if Mary Harney were to come before the Special Criminal Court and Judge Y decided he would not hear my case, that he would excuse himself from the case, I would know immediately that my telephone had been tapped and that that judge had been involved in overseeing the safeguards in relation to telephone tapping.
It is a badly thought out proposal to suggest that a serving member of the Judiciary should oversee the implementation of these provisions. That is the reason my amendment excludes nobody else except a serving member of the Judiciary. This is for very good reasons. Apart from the fact that I hold it would prejudice the judge himself, even in subsequent trials from which he would not exclude himself, he would become known to subversives as the judge who is overseeing the implementation of the safeguard being provided here, that a particular telephone had been tapped. Earlier the Minister of State said the reason he did not want to provide statistical information was that criminals would then know, if the figure increased from 40 to 60 and there was an increase in a particular type of crime, that their phones were being tapped. If that is the argument for not providing statistical information it is certainly the argument that should be used for not nominating a serving judge to be the designated judge for the purposes of this legislation.
We do not have enough judges. It can take 12 to 24 months in many cases to have a case heard in court. There are long delays and if justice is not speedy it is often regarded by the public as not being justice. Having regard to the fact that it is taking so long to complete the beef tribunal many people believe that our system of justice is painstakingly slow, cumbersome, archaic and out-of-date. I have suggested to the Minister for Justice that we need to appoint more judges to expedite civil cases. In regard to criminal proceedings long delays are encountered in compiling the book of evidence and so on.
Why should we tie up one member of the Judiciary in overseeing the operation of this legislation? I do not think it would be appropriate to do so. On the other hand, an obvious candidate would be the President of the Law Society; solicitors are not given due recognition in our judicial system and they can only be appointed as judges to the District Court and not to any of the higher courts. This is wrong and the Minister said she will review the position. What is the reason a retired judge, a retired Ceann Comhairle or a retired President, persons who are held in high esteem and known to be fair and impartial, cannot be nominated? I do not want the Minister restricted under the legislation to nominating a serving judge.
My amendment states that the designated person "shall, subject to the provisions of this Act, be independent in the discharge of their functions". Under the Constitution the Judiciary are independent. If a Minister, following consultation with the President of the High Court, nominates a serving member of the Judiciary for the purposes of this legislation the independence of the Judiciary would be prejudiced. That is another reason they should not be involved.
Earlier the Minister of State referred to a judge in the masculine sense. Thankfully, we have an excellent female member of the Supreme Court, Mrs. Justice Denham, and an excellent member of the High Court, Miss Justice Carroll, but we need many more. I am keen to ensure that the recommendation in the report of the Commission on the Status of Women that the Interpretation Act be changed is implemented so that sexist language is not used in legislation, such as where the word "he" is used. With the co-operation of the Bills Office the word "he" is not used in my amendment. While the Minister of State may tell me that this is wrong technically the sooner we get rid of sexist language the better because language conjures up images of status and of who is considered appropriate. I am drawing the attention of the Minister of State, and the House, to the fact that with this amendment we would manage to remove the word "he" from section 8 and replace it with less sexist and more acceptable language.
I wish to apologise for unwittingly using sexist language; I did not intend to use such language, the word slipped out.
I do not agree that the involvement of a judge, as the person selected to oversee the operation of the legislation, would necessarily lead to their independence being compromised given that judges have been involved in judicial inquiries since the foundation of the State and nobody has suggested that their independence has been compromised in any way. As the House is aware, the President of the High Court is presiding over a tribunal which is the subject of much public interest and his independence has not been compromised.
The original proposal in relation to the 1985 Act was that a member of the Supreme Court should oversee the operation of that legislation. On that occasion the Chief Justice, whose views were sought, gave a very good reason as to why it would not be appropriate to nominate a member of the Supreme Court. There are five Supreme Court judges and they can sit as a group of five or as a division of the Supreme Court, namely three judges. The Chief Justice made the point that in an important criminal trial where an appeal is made to the Supreme Court on a point of law it may be deemed necessary in many cases that the five judges be involved. Inevitably, there would be a possibility that the designated judge, if he was a member of the Supreme Court, might hear an appeal on a point of law brought by somebody whose phone had been tapped. That is the reason it was decided to nominate a High Court judge.
The President of the High Court is aware of our difficulties in this regard and has assured us that if a High Court judge is designated the judge concerned will not be involved in criminal trials or appeals. We have been given this assurance in writing. Indeed, it would not be in the interests of the prosecution or the State to have it any other way. Otherwise the person being tried could challenge the decision immediately if he could establish that there was unauthorised interception while his case or any other activities he may have been involved in were being investigated and the judge was in a position to have known about it given that he had access to all of the relevant papers which he can ask for in any particular case.
It is a Government decision that a judge rather than somebody else will be designated to oversee the operation of the legislation, and I have not been authorised to change that decision today. The reason it made this decision is that an administrative procedure is being put on a statutory basis. In general, administrative procedures are reviewed by the courts. Unfortunately, because of the nature of this procedure, and the necessity for secrecy, if it is to be efficacious and workable there must be some restriction in regard to the right of access to the courts. To compensate for this we are going to appoint a judge who would normally be in a position to review the administrative procedure in an ordinary court case if there was full access to the courts — access will be restricted under the legislation — to review the operation of the legislation.
I am not attaching blame to Deputy Harney who is extremely busy or to anyone else but I only saw this amendment for the first time at 10 o'clock this morning. I have noted the points made by the Deputy and, in light of the case she made, I will ask the Government who makes the decision, if it will change its decision but I cannot change a Government decision this afternoon. I had no opportunity to consult widely between the time the amendment first appeared and the time the discussion started but if the Deputy wishes to advance any other reasons in addition to the points she has made that someone other than a High Court judge should be designated I would be prepared to consider those arguments and consult with the appropriate people who have the power to change this decision.
I apologise to the Minister of State who only saw the amendment for the first time this morning although it was tabled last night. As the Minister of State is aware, I tabled a similar amendment earlier to substitute the words "designated judge" with "designated person" and I informed him that I would table further amendments as the debate on the Bill proceeded.
I do not want to labour this point, as I made it earlier, but a very good reason the Minister should be present is that she would have more authority to accept amendments like this. This is not in any way to cast a reflection on Deputy O'Dea's capacity; I know the limitations on Ministers of State because I was one. The Minister for Justice has not yet come into this House to take Committee Stage of a Bill and she has shown total and utter disregard for the Members who have put in a great deal of effort in preparing the legislation. If this was a sexy subject and topical at the moment, as it was ten years ago, I can guarantee it would not be the Minister of State who would be in the House, but the Minister who would be getting all the glory attaching to it.
The Minister of State has given an assurance that the judge in question will exclude himself or herself from criminal trials. He has accepted the word of the Bar Council or the President of the High Court as the case may be. Self-regulation is not good enough. It is not good enough that we leave it to the discretion, integrity and honour of individuals; the law should provide for it. The law should provide that no judge who is overseeing the implementation of this legislation can sit in a criminal trial. If the Minister gives me an assurance that he will bring in an amendment to that effect on Report Stage, I will accept it.
In addition to criminal trials, the judge in question can preside at civil trials on the matter. We cannot assume that somebody whose phone is tapped will not subsequently be involved in a civil trial. If, for example, a well-known organised gang breaks into your house and shoots somebody — we had a shooting in Dublin not so long ago — and a criminal charge cannot be brought against the persons, a civil charge could be brought against them for damages. Is the judge to exclude himself from the civil trial as well? The Minister knows that if a particular judge excludes himself from certain trials it will not be long before the criminal gangs whose phones are being tapped will know. That defeats the purpose. The Minister said this was a Government regulation. Everybody wants to see safeguards. We have long delays in hearing cases because of the shortage of judges — there are other reasons but the shortage is a factor. I have spoken to many members of the Judiciary in recent times, and they have told me of the need for the appointment of more judges. Why should we tie up any judge at a time when more judges are needed to ensure speedier trials? There is a host of people who would be acceptable to the House, to the Government and to the community at large who are fair and impartial. I mentioned some earlier; former secretaries of Government Departments, former ambassadors. There is a number of honourable, fair and impartial individuals who would be quite capable of seeing that the legislation is implemented fairly and producing a report to the Taoiseach that would be laid before the Houses of the Oireachtas.
We will deal with another Criminal Justice Bill later in the day. I do not know who will introduce that Bill, whether the Minister will arrive with all the fanfare and deliver the opening speech and leave the Minister of State to take the Committee Stage, which will be short. It is a very good Bill. Those of us who are involved hope to finish this debate by 1.30 p.m. Will the Minister of State do whatever is necessary? I do not suspect it will require a memorandum to Government. Although its implications are major, it does not require a major change in the legislation to provide that Judge X, the Ombudsman, a former secretary of a Government Department, the President of the Law Society or somebody else should sit. The membership of this committee comprises of senior people, all of them honourable, and I will be happy with any name they might come up with. If they are allowed to pick the DPP, who has an extremely important function in this jurisdiction, surely they are capable of picking somebody to oversee this legislation.
I do not have any difficulty with the membership of the committee — I know they are all honourable people and totally independent and I do not have any quarrel with them. I have listened carefully to Deputy Harney. We will not have the situation where people will be tipped off that a certain judge will exclude himself from certain criminal trials. If we take that road, the judge overseeing the implementation of this legislation will simply not be hearing any criminal trials.
What about civil trials?
I take Deputy Harney's point on civil trials but to answer her query properly one has to know how the system operates in practice and I have some experience of this——
Of phone tapping? I hope not.
No, of civil trials. In effect what happens in civil trials before the High Court is that in many cases one literally does not know what judge will be hearing one's case. In one case we were supposed to be before one judge at 10.30 a.m., at 10.25 a.m. we heard it would be Judge B but there was a change and we appeared before Judge C. In fairness, there is not any possibility of tip offs because a judge has to exclude himself from a civil trial. The Deputy, however, makes a fair point about writing into the legislation that the judge should be totally excluded from any subsequent trials, civil or criminal, which might in any way be related to a person whose phone happened to be tapped. I shall certainly discuss this with the draftsman between now and Report Stage.
Deputy Harney has made a very compelling case for her amendment, but a further aspect will need to be looked at. We have considered the situation where the judge is precluded from hearing a case where he was reviewing the operation of the Act. Given the likely intervals between the reviews that are to take place, there may well be circumstances where the court cases arising from the interception of telephone messages will have taken place before the judge is designated to carry out the review. A judge carrying out the review may be the same judge who had previously heard the case which arose from the interception which subsequently becomes the subject of review. It is broader than the question of excusing judges from hearing cases where they are conducting a review.
The case made by Deputy Harney for the appointment of people outside the Judiciary, quite apart from releasing the judges from work which they can do without, is very strong and we should try to identify an eminent person who would be suitable to carry out the review. There would be too many complications when judges are hearing cases and subsequently reviewing the operation of the legislation which gives rise to the evidence which was produced in those very same cases in the first place.
Perhaps the question of the appropriateness of the review being carried out by the Judiciary should be addressed.
Acting Chairman
Is the amendment withdrawn?
In the light of the Minister's commitment to go to the Government and come back to us on Report Stage, I will not press my amendment but I will re-enter it on Report Stage in the event of no change.
Amendment, by leave, withdrawn.
Question put and agreed to.
SECTION 8.
(Carlow-Kilkenny): I move amendment No. 6a:
In page 9, subsection (2) (a), line 19, to delete "two years" and substitute "twelve months".
This amendment is very important. We have had a good deal of discussion as to how we can make this Bill more efficient, who will be responsible for the review and who will be brought to court as a result of it. With all due respect, the present wording should not be in any Bill, as it runs wild with the English language. The present wording is that the person designated "shall have the duty of keeping the operation of this Act under review, of ascertaining whether its provisions are being complied with and of reporting to the Taoiseach — (a) at such intervals (being intervals of not more than two years)". That seems to be an evasion of taking a stand.
As the Minister pointed out in promoting my amendment, that could mean that reports would be made every month, every six months or, as will probably be the case, every two years. I do not want to go back over the past and the abuse of this means of getting information, but the fact that there would not be a report for two years would be an encouragement to abuse the system. I am not saying the system will be abused but I suggest that the report be made within 12 months — even that period may be too long. If we provide that the report is made every six months matters will be kept in order. The wording as it stands is not very clear.
Unlike Deputy Harney, who has experience of being a Minister, I was taken aback to hear that 40 authorisations were made. In my innocence I thought seven or eight would be the maximum number, but obviously things are happening of which I am not aware and I am in a state of shock. If that practice continues an assurance should be given in regard to making available the report by the judge or designated person. The large number of authorisations is not a reflection on those in authority but on the state of the country. If this measure tackles crime I support it. We should make sure that matters are in order. We have discussed many important aspects of the Bill. In this case the period of two years is too long. I hope the Minister accepts our amendment which proposes that the report be made within 12 months. That would at least provide for a realistic reporting time, give us a chance to see what is happening and ensure that everything is above board.
I support Deputy Browne's amendment. The Minister corrected me earlier when I referred to the reports being made available only every two years. Deputy Browne is right in that if the Bill provides that reports be made within two years, they will be made only every two years and, like most reports, will probably end up being late.
I am not surprised at the number of authorisations which currently exist — I would not have expected the number to be fewer than 40. It has been stated here on a number of occasions that there is a serious crime problem. Citizens' civil rights are denied by the activities of criminals, whether those engaged in big time crime or in local communities. For example, in the area of drug dealing there are more than 40 drug dealers in Ireland. If I were to tot up the number of criminal related activities in my constituency, about which I receive complaints and the number generally in local communities, the result would be a sizeable figure. I am not alarmed by the number of authorisations issued. I do not have any difficulty with the State intercepting telephone calls, phone tapping or intercepting mail to crack down on a serious problem and an invasion of the civil liberties of law abiding citizens.
We are seeking to ensure that the legislation will not be abused, that it will be used only to deal with cases of crime and not in a recriminative way against individuals either for political purposes or for purposes of recrimination by the police — there have been cases of abuse in that area also. For that reason the period within which the operation of the legislation is reviewed and information made available should be more frequent than two years.
On my earlier amendment about providing information on the number of interceptions so that it may be mentioned by the public, the Minister agreed to consider that matter with a view to requiring that such information be made available. If that is done it will be necessary for the reviews to be carried out more often than on a two yearly basis. I know it is theoretically possible for reports to be produced more often but in practice that will not happen. Deputy Browne's amendment which proposes an annual review should be considered. If provision is made for an annual review it is much more likely to take place. In practice reports generally are not produced on time and to make provision in legislation that they be made at certain times will not ensure that it is done. However, there is some possibility of it being done if provision is made for a review on an annual basis.
The person to whom we intend to give the power is a High Court judge and, as Deputies will be aware, members of the High Court are independent in the exercise of their functions. This is an extra function that will be given to one member of the Bench and it is particularly appropriate that he or she is independent and seen to be so in the exercise of this very important function. For that reason the Government decided to provide for a degree of flexibility as to when reports will be produced. There must be some limitation and we were anxious to ensure that no more than two years would pass between the production of reports.
As the legislation is structured it is envisaged that the main report, which must be laid before both Houses of the Oireachtas, and about which Deputy Browne is concerned, is not necessarily the only report the High Court judge will produce that will be placed before both Houses of the Oireachtas. Section 8 (2) (b) states that the High Court judge can report to the Taoiseach from time to time on any matter pertaining to the legislation. That subsidiary report also has to be placed before both Houses of the Oireachtas. Section 8 (4) provides that the judge can communicate at any time with the Taoiseach or the Minister for Justice on any matter concerning interception. That communication would not be in the form of a report to be laid before both Houses of the Oireachtas.
The provision that the High Court judge should make a report within two years represents the outer limit as the High Court judge can report on an annual, six monthly or monthly basis. If the legislation stated that the only obligation of the High Court judge was to submit a report after two years without provision for periodic reporting, such reports to be laid before both Houses, and if there was no provision to communicate with the Taoiseach or the Minister, the amendment would add to the legislation. In view of the other reporting powers which the judge has I cannot see that the amendment would add greatly to the legislation.
(Carlow-Kilkenny): I usually follow the Minister's logic, but this time I do not. We are talking about the independence of the judge appointed. We are setting down regulations to ensure that independence is not interfered with. We are deciding on the duties of the judge. We cannot just allow him into the Phoenix Park to go anywhere he likes. We want to ensure that he does his job. The Minister quoted from section 8 (2) (b) which states:
..... and of reporting to the Taoiseach .....
(b) from time to time in relation to any matters relating to the Act which he considers should be so reported.
That is a very loose instruction. The judge might decide that he had not seen anything that should be reported because if he had not carried out investigations to prepare a report, he might not know. He will hardly sit down every day and look at every authorisation and wonder if it is right. I presume he will wait for a time to examine a number of authorisations together. The Minister also referred to the fact that a judge "may" do something. It means nothing. It is an option which the judge has if he wishes to use it but there is no obligation.
The judge will do what he has to do, which is to report within two years. That is unacceptable. If we cannot have a report every 12 months, the report is not worth having. The Taoiseach will have a report within two years and we have an amendment that it should be laid in the Library within three months. Two years is far too long and I cannot accept it.
We are appointing a High Court judge to oversee the operation of the legislation. If each one of us was asked his opinion as to what the judge should do, we would probably all offer a different opinion. We cannot write in detail, step by step, how a High Court judge will operate the Act. In section 8 (2) The designated judge will have the duty to keep the operation of the Act under review, to ascertain whether the provisions are being complied with and to report to the Taoiseach under sub-paragraph (b) from time to time in relation to any matters relating to the Act which he considers should be so reported. If the judge considers something serious enough to be reported he is obliged to communicate that to the Taoiseach and that report must be laid before both Houses of the Oireachtas. The two-year provision is only an outer limit.
(Carlow-Kilkenny): Why have that kind of thing?
It is the maximum time which can elapse between one report and another and that leaves a certain amount of flexibility to the judge. I do not see any compelling reason to change that to 12 months but in view of the overwhelming logic of Deputy Browne, I am prepared to accept the amendment.
Amendment agreed to.
We now move to amendment No. 7. Amendments Nos. 7, 8 and 10 can be taken together as amendments Nos. 8 and 10 are cognate. Is that agreed? Agreed.
I move amendment No. 7:
In page 9, subsection (6), lines 44 and 45, to delete "Minister for Tourism, Transport and Communications" and substitute "Minister for Transport, Energy and Communications".
On 20 January 1993 the Government made the Tourism, Transport and Communications (Alteration of Name of Department and Title of Minister) Order, 1993. Under that Order the name of the Department of Tourism, Transport and Communications was altered to the Department of Transport, Energy and Communications. In recognition of that order it is necessary to make these three technical consequential amendments to the Bill.
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
Amendments Nos. 7a and 7b are related and may be taken together.
(Carlow-Kilkenny): I move amendment No. 7a:
In page 10, subsection (2) (c), line 25, after "Taoiseach" to insert "with the approval of Dáil Éireann or a committee thereof".
This amendment is simply to make sure that when the Taoiseach appoints the referee the appointment is not made as a favour, that it is discussed openly either in the Dáil or in committee. This is simply to make sure that we have open Government, that everybody sees what is going on and that we do not have any doubts about the appointment made. This is not a major part of the Bill but it would help the Taoiseach if it is accepted.
Amendment No. 7b just puts a limit of within three months. That is not asking anyone to rush. Nobody should be found lying on the floor exhausted if they produced the document within three months of its being requested. I do not think the Minister of State will have any difficulty in accepting amendment No. 7b.
I have a difficulty in accepting amendment No. 7b. With all due respects, Deputy Browne has made a mistake. He wanted to compel the Taoiseach to lay the report of the designated judge before both Houses of the Oireachtas within three months. In fact, the effect of amendment No. 7b is to oblige the Taoiseach to lay each report by a complaints referee, where he has found a breach of the Act, before both Houses of the Oireachtas within three months. I could not accept that. I hope the Deputy understands my difficulty.
(Carlow-Kilkenny): That is fair enough.
The effect of amendment No. 7a would be to require the Taoiseach to appoint the complaints referee with the approval of Dáil Éireann or a committee of Dáil Éireann. What we are talking about here is appointing a complaints referee who will be a Circuit Court judge, a district justice, a barrister or solicitor with qualifications and experience necessary to enable him to be appointed a Circuit Court judge or a district justice. The Taoiseach appoints a quasi judicial officer. Acceptance of amendment No. 7a would oblige us to go along the lines of the United States where there are congressional hearings in relation to the appointment of the Judiciary, those who hold quasi judicial positions and ambassadors, etc.
(Carlow-Kilkenny): The Minister of State could go there to see how it works.
That is a debate for another day and it is a very interesting point. Unfortunately, I cannot provide for it under this Bill. If we were to go down that road it would not be right to have it in relation to one particular quasi judicial officer and not in relation to anybody else. If we were to introduce that system, even on a gradual basis as suggested in the amendment, we should start at the top. I am not casting aspersions on the status of the complaints referee but he would not be seen as having the same status as the Chief Justice, a Supreme Court judge or even a High Court judge. I would not like if a person, low on the list of quasi judicial officers, had to go through the rigour of a hearing of a committee of the Dáil or was appointed on the basis of the new American system whereas every other judge was appointed in the ordinary way.
(Carlow-Kilkenny): I accept the logic of the Minister's argument.
Amendment, by leave, withdrawn.
Amendment No. 7b not moved.
(Carlow-Kilkenny): I move amendment No. 7c:
In page 12, between lines 8 and 9, to insert the following subsection:
"(7) The provisions of this section shall also apply to complaints in relation to the publication or reproduction by any person of unlawfully obtained telecommunications messages and, in such cases, recommendations made under subsection (5) (c) (iii) and (6) (a) (iii) (III), may include recommendations for the payment of compensation by such persons to those persons whose privacy has been so infringed. Such recommendations shall have the force of law but shall be subject to appeal in the High Court.".
Section 9 (6) (a) provides that the referee shall make a recommendation for the payment to the applicant of such sum by way of compensation as may be specified in the order where he found something was incorrect. Our amendment is a link up with that provision whereby if the information is published in newspapers or on television there should be a regulation allowing for compensation. If the referee can make a recommendation regarding compensation to the person who has been wronged then it should follow that if that information appeared in the newspapers or was announced on television a fine should be laid down to compensate the person for damage caused by the publication of wrong information unlawfully obtained. That makes sense.
While the Minister's adviser may be shaking his head it is logical when somebody is compensated on one side because of what is done, that publication of that information should also demand compensation. This would act as a deterrent and people would be more careful about what they publish.
The amendment goes far beyond what Deputy Browne stated. In this legislation we are setting down a statutory basis whereby the Minister for Justice can authorise interceptions. Because of the secret nature of the system it is necessary to restrict access to the courts by aggrieved people. If the Minister for Justice contravenes the legislative requirements we are imposing on her to compensate for the fact that there is restrictive access to the courts, we are setting up the complaints referees who will have the power to investigate any complaint made to him. If he finds there has been a breach he can quash the authorisation, destroy the material and grant compensation. If the amendment in the name of Deputy Browne were accepted we would be going beyond that. The referee will deal with complaints about whether the Minister for Justice is using her powers under this legislation. Amendment No. 7c would mean that if, in the morning, I discovered Deputy Browne had tapped my phone I could complaint to the complaints referee who would have to investigate the matter and order compensation against the person concerned, even if it was not done on an official basis.
The complaints referee is an officer controlling the official activities of the Minister under this legislation. Unfortunately, if somebody other than the Minister for Justice taps my phone illegally he can be prosecuted. I would also have a civil action against him.
Would she also be prosecuted?
He or she. There would be no restriction on my access to the courts to bring a civil case for invasion of privacy in such a case. Because of the nature of the system the restriction relates only to the Minister. I have absolutely no authority, and I do not think it would be feasible, to extend the power of the complaints referee in relation to non-Ministerial tapping of telephones, such as the tapping of mobile telephones, etc. There may be a case for saying that if somebody is aggrieved because his telephone had been tapped — apart from the 1983 Act where the person who taps illegally can be prosecuted — there should be a mechanism similar to the employment appeals tribunal for people who are unfairly dismissed, whereby the person could have an alternative remedy to going to court. There should be a tribunal akin to the complaints referee that would be in a position to investigate the matter speedily but it certainly would not fall within the ambit of the complaints referee here who is specifically appointed to investigate complaints about how the Minister operates her powers.
(Carlow Kilkenny): I am not speaking specifically of compensation because one's telephone was tapped but rather the publication of the information. Perhaps the argument is that technically nobody should have the information apart from the Minister. The Minister's explanation has gone beyond what we are talking about. We are talking about information which has been obtained illegally being disseminated. Is there a section in the Bill which can lay down a regulation concerning the abuse of information illegally obtained and published as a result of being leaked? I am referring specifically to the publication of the information rather than the telephone tapping.
I know what Deputy Browne is speaking about but the amendment as drafted refers to the "publication or reproduction by any person of unlawfully obtained telecommunications messages...." That would include messages which were not only unlawfully obtained by the Minister for Justice or the Garda, under authorisation from the Minister for Justice, but information unlawfully obtained, for example, by switching onto somebody's mobile telephone. It would apply to everybody in the country. I know what the Deputy is trying to achieve.
The Deputy is saying that if a newspaper were to publish the information that arose from the Minister's improperly authorising a telephone tap, the person concerned should have the right to claim against that newspaper. I would not be disposed to accept that point of view because, although there is logic in it, one is dealing with situations where the complaints referee has found that there was a breach of the Act, which specifically states that the Minister, the person who authorised the breach, is liable to pay compensation in the amount that the complaints referee determines.
In assessing the damages the complaints referee would take into account the fact that newspapers and others might get hold of this improperly obtained information and publish it. If my telephone is improperly tapped and I receive compensation and subsequently the information is published, I do not think the complaints referee would be disposed to give me any extra compensation. The compensation is levied against the Minister for Justice, the person who authorised the improper tap, and the complaints referee is the person who decides the level of compensation. He decides the amount payable by the person who originated the illegality and I do not think he will give more compensation just because somebody publishes the information. However, if the information was libellous then the complainant would have cause for a separate action against anybody who published that information. I see no merit in giving the complainant the right to go back to the complaints referee because somebody has decided to publish the information. I would imagine that by the time the complaints referee has concluded his investigation of something that has already happened, publication will already have taken place and the complaints referee will take that into account in assessing the level of compensation.
(Carlow-Kilkenny): Compensation of, say, £5,000 would be only a drop in the ocean compared to the damage that could be done to a person as a result of a report in the paper, not libellous perhaps. The mere fact that my telephone was tapped might result in half the people in the country concluding that there must be something to it, that my telephone would not have been tapped if there had not been something going on. One would get nothing from a newspaper afterwards because one probably could not prove libel. That damage would be much more serious and could arise because of the original illegal tapping. I would ask the Minister to see if there is some way to prevent the media from using information obtained in such a way. If a person is lucky enough to be libelled properly he can get good compensation, but a person's character could be severely damaged by a casual report in a newspaper that leaves him with no means of redress. I will not press this to a vote, but I think it should be included as a protection. I would ask the Minister to look at this with his advisers to see if something can be done.
I will bear in mind what Deputy Browne has said. Section 12 of the Bill obliges the Minister to ensure that arrangements exist to keep disclosure of information obtained as a result of tapping a telephone to a minimum. That may meet Deputy Browne's point to some extent. However, the complaints referee is to assess damages in regard to illegal taps. Almost invariably by the time the referee investigates and assesses damages, any reporting that is going to be done as a result of those taps will have been done and the complaints referee will take that into account in assessing damages. It must also be borne in mind that where a newspaper publishes information provided anonymously, the newspaper is innocent because they will not know if a tap is illegal. A tap can be illegal for a number of reasons, for example, the statutory procedure not being followed, and the media could not be expected to know that. Therefore the chances of a referee deciding that they should pay compensation for something that was innocently done would be slim. The fact of publication will be taken into account by the referee when assessing damages. I will, however, bear in mind what the Deputy said.
If compensation is assessed by a referee, does that preclude an individual whose privacy has been invaded from seeking civil damages against the State? The points I made earlier about judges in relation to criminal trials and so on equally apply to the person who may be the referee. Since compensation and the calculation of it is involved, I think there is greater justification for having somebody with legal expertise. If a judge of the Circuit Court or District Court were to act as referee would he exclude himself from any subsequent trial that might take place in relation to these matters? Will the same assurances be given?
Yes, they should exclude themselves from any subsequent trial because nobody could be independent and objective when they have considered a case from two points of view.
In regard to the question of an individual being precluded from taking an action, the answer is no. In the 1985 Bill there was a total exclusion on anybody taking civil action. It was found by the courts in the case of Geraldine Kennedy and Bruce Arnold that one of the unenumerated personal rights in the Constitution was a right to privacy, the right not to have one's private telephone conversations intercepted illegally. We therefore took out the absolute exclusion because we felt it would be unconstitutional; it would remove a right which the Supreme Court decided exists under the Irish Constitution, although not explicitly. In practice if a person's telephone is illegally tapped and that person receives compensation and subsequently takes a case, that would be taken into account in the ultimate assessment of damages. A person is not totally precluded from taking a civil action. A person whose telephone has been illegally tapped has the right to take a constitutional action regarding invasion of privacy.
Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10.
Amendment No. 8 in the name of the Minister has already been discussed with amendment No. 7.
I move amendment No. 8:
In page 12, subsection (1) (b), lines 41 and 42, to delete "Minister for Tourism, Transport and Communications" and substitute "Minister for Transport, Energy and Communications".
Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
The Minister has accepted the time of 12 months, but is it generally the case with official information such as this that it is kept for only three years? For example, following a hearing by the referee, if a person takes a constitutional case for damages, which can take a considerable length of time to go to trial, will three years be sufficient? Is it necessary to have a time limit? I do not wish to make changes for the sake of making them, but is there a need for a time limit of three years?
I will note what Deputy Harney has said. My information is that the three year limit was inserted in order that documents would be retained to facilitate any investigation by the designated judge or any subsequent complaint to the complaints referee. I note that there is no time limit within which a person can have a complaint investigated by the complaints referee. However, Deputy Harney will be aware that the normal period under the Statute of Limitations for taking a civil action is three years. I assume, therefore, that while there is no actual time limit for making a complaint to the complaints referee, that if a person went to him six or seven years later they would be told that all official documents had been destroyed and that the matter cannot be investigated. In effect, they would be precluded from investigating the matter although by law, they would not be precluded from doing so. The procedure is similar to that which applies to a civil action under the Statute of Limitations.
In the Kennedy-Arnold case it was three or more years later before they became aware that their telephones had been tapped. If information is held for only three years there is no way of verifying the matter and a referee could not investigate a case when the three year period has lapsed. For example, if my telephone is tapped today and I do not discover that for four or five years and then go to the referee, the documentation will have been destroyed. That would hamper the referee in investigating the matter. I am not saying that he will not be able to verify whether my phone was tapped, but he may need to see transcripts to know if the tapping was valid. Will the Minister examine this matter before Report Stage? If he discovers that there is no necessity for the three year time limit, he should delete it.
(Carlow-Kilkenny): If a designated judge makes a report stating that my phone was illegally tapped, will he communicate with me in that regard?
Deputy Browne has asked some good questions today, as always. If a designated judge discovers that a telephone is being illegally tapped he will not communicate with the person involved because his job is not to act as a referee between the public and the State. His task is to oversee the operation of the Act. The designated judge will state in his report that X number of telephones were illegally tapped. He may state the individual cases and the reason he believes those telephones were tapped. However, complaints should be made to the complaints referee.
(Carlow-Kilkenny): How will a person know he or she has grounds for going to the referee?
If a person is suspicious, he or she should make a complaint.
That is true. If people are suspicious they should make a complaint. If the complaints referee discovers that a person's telephone is being tapped and that the tapping has been properly authorised, he will inform that person that there has been no breach of the provisions of the Act. He will not state that the person's telephone has been tapped. On the other hand, if he discovers that a telephone is being illegally tapped and that there is a breach of the provisions of the Act, he will communicate with the person involved.
(Carlow-Kilkenny): Perhaps I am not listening to the Minister, but to appeal to a referee one must suspect that one's telephone is being tapped. Is there no way a person can be informed if their telephone is being illegally tapped? Will such information be published?
No.
(Carlow-Kilkenny): Is there any advantage in having this massive security system in operation when one could be kicked to death, as it were, and not made aware of it?
As Deputy Harney stated, if people are suspicious they should make a complaint to the referee. We are appointing a referee so that people do not have to initiate lengthy court proceedings to find out if their telephones are being tapped. The existence of the referee's office will be public knowledge and people may write to him if they are concerned about anything. Even if people are not concerned they can write to the referee and he will inform them if the Act is being breached.
That is reasonable, but difficult to justify, having regard to the Minister's comments on an earlier section. It seems reasonable that the designated person overseeing the implementation of the Act would not write to inform you that your rights are being infringed. However, there should be a balance between that and expecting everybody to write to the referee. I would be concerned that we might have a great deal of vexatious complaints. I support complaints procedures and the independent investigation of genuine complaints, but very often when we set up a vague procedure such as this we cause a volume of vexatious complaints to be made. The referee might be snowed under with complaints from all types of semi-criminals.
I hope, because of the safeguards we are putting in place, that many people will not see a need to write to the referee but will be aware that if a respectable, independent person is overseeing the implementation of the legislation there is little chance of their telephone being tapped or their postal packages being intercepted. Therefore, it should not be necessary for people to write to the referee to find out if their telephones are being tapped.
However, I would like to be assured that every criminal does not engage the referee in unnecessary investigations because they have a vexatious complaint. I do not know the answer to this problem. We need a referee and a complaints procedure, but I would draw the Minister's attention to that matter. As the Minister is aware, many vexatious complaints are made to the Garda Complaints Board at present, which involve an enormous amount of Garda time. I have not put down an amendment in this regard. I do not know if it is possible to cover this matter by way of an amendment, as the Ombudsman's office deals with many such complaints. Complaints to the Ombudsman's office are generally genuine but people involved in crime and who come into contact with the Garda Síochána often feel aggrieved because they have been caught and feel the necessity to make a complaint. If they could, they would go not only to the highest court in the land but to European courts or elsewhere with their complaints. This is a delaying tactic, an excuse or a way of preventing a trial proceeding. If a person is the subject of telephone tapping and may be aware of it because he or she is involved in a particular criminal activity, could that person delay a criminal investigation on the basis that a complaint was before the complaints referee? There would be no confirmation that such a person's telephone was tapped, but could a trial be delayed if one suspected that one's phone was being tapped or that one's privacy was being interferred with when one's case was before the referee? Would the Minister comment on that?
A trial or a Garda investigation could not be delayed because the referee will simply check whether the provisions of the Act have been complied with. If there is a tap in place he must check whether it is properly authorised. If, for example, the Minister or the Department of Justice have made some technical error in procedure, a person would then be informed that their phone has been illegally tapped and that would certainly interfere with the investigation. Therefore, there is an onus on the Minister for Justice and particularly the nominated officer in the Minister's Department who will make a recommendation to the Minister.
In relation to vexatious and frivolous complaints, I take the Deputy's point not only in relation to criminals but also cranks who, unfortunately, are not an unknown phenomena here. In regard to how the complaints referee will operate the legislation, that will be a matter for him. The Deputy will understand we cannot detail how every person appointed to operate legislation will do this. I would direct the Deputy's attention to section 9 (4) which states specifically:
Where an application is made under this section [that is an application to the complaints referee] (other than one appearing to the referee to be frivolous or vexatious)...
We are writing it into the law that the referee is under no obligation to investigate complaints which appear to him to be frivolous or vexatious. That is the most we can do. We depend on the good sense of the referee thereafter.
Question put and agreed to.
Section 12 agreed to.
SECTION 13.
I move amendment No.9:
In page 14, between lines 29 and 30, to insert the following subsection:
"(1) The Act of 1983 is hereby amended by—
(a) the insertion of the following definitions in section 2:
‘"communication" means a postal packet or a telecommunication message including a message reproduced by electro-magnetic radiation including fibre-optics, microwave or radio;
"interception" means an act that consists of the opening, attempted opening or use of technology to establish the contents of a postal packet addressed to any person or the delaying or detaining of any such postal packet or the doing of anything to prevent its due delivery or the authorising, suffering or permitting of another person (who is not the person to whom the postal packet is addressed) to do so;', and
(b) the insertion in section 84 (1) (a) after ‘attempts to open' of ‘or uses technology to establish the contents of'.".
Acting Chairman
This amendment has already been discussed with amendment No. 1. Is the Deputy pressing her amendment?
I am.
Before we proceed, would it be in order for me to respond to Deputy Harney?
Acting Chairman
If the Minister would be brief.
This is legislation which regulates the powers of the Minister for Justice to authorise interceptions that would otherwise be illegal under the 1983 Act. The changes proposed by Deputy Harney would be changes to the fundamental legislation, namely, the 1983 Act. While it would be unusual to change the basic legislation by putting amendments to it into regulatory legislation such as this, there is a precedent for this. I have no objection in principle to using this legislation as a vehicle to change the basic Act. However, the basic Act is a matter for the Department of Transport, Energy and Communications. If the Deputy's proposals were being brought through this House, for instance, by way of amendment to the 1983 Act, it would be a matter for the Minister for Transport, Energy and Communications.
When this matter was originally raised during the Seanad debate we consulted the Department of Transport, Energy and Communications, An Bord Telecom and An Post to discuss the desirability of those amendments. At the time there were objections to them within the Department of Transport, Energy and Communications. In light of the debate that took place, I instructed my officials to get back to the Department of Transport, Energy and Communications, An Bord Telecom and An Post to see whether, in light of the new arguments being made in the debate before Easter, they would reconsider the position. I am still awaiting a response to this. I have no objection in principle to using the Bill as a vehicle in this way but I must have the authority of the Department directly concerned. I have no objection to Deputy Harney pressing the amendment at this stage but I have insisted that they do respond to my officials between now and Report Stage. On Report Stage we will be in a position to say whether we are accepting the amendment and if not, why not.
On a point if order, the Minister has been very reasonable in his attitude. Ideally, I would prefer to amend the main Act but we will not get an opportunity to do that. Therefore, we are required to use whatever legislative opportunities that are available to us. In the light of what the Minister has said I will not press my amendment.
(Carlow-Kilkenny): Subsection (b) of section 13 is very important because it is preparing for the future. We do not know what will happen in the future. In years to come, a person may be able to tap into a computer and the information will appear immediately. We must prepare for the advance of technology so that we will not be required to readjust this legislation at a future time.
Amendment, by leave, withdrawn.
Section 13 agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
Whenever I see a reference to the Official Secrets Act I become concerned. Would the Minister explain the implications of this section?
This section repeals section 18 of the Official Secrets Act, 1963. Section 18, which reproduces section 4 of the Official Secrets Act, 1920, empowers the Minister for Justice by warrant to require the production to him of telegrams sent to or received from places outside the State. The power under this section is very wide, the only condition being that the Minister should be of the opinion that a production to him of telegrams to or from places outside the State is "expedient in the interests of the State". This power has never been used so far as it is remembered in the Department of Justice. The Bill is a convenient occasion to abolish it. After the repeal of section 18 the authorisation of the interception of telegrams will be carried out as provided for in this Bill.
Question put and agreed to.
SECTION 15.
I move amendment No. 10:
In page 15, lines 27 and 28, to delete "Minister for Tourism, Transport and Communications" and substitute "Minister for Transport, Energy and Communications".
Acting Chairman
This amendment has already been discussed with amendment No. 7.
Amendment agreed to.
Sections 15 and 16, inclusive, agreed to.
Title agreed to.
Acting Chairman
When is it proposed to take Report Stage?
On Tuesday next, 11 May 1993.
Report Stage ordered for Tuesday, 11 May 1993.