Criminal Justice (Terrorist Offences) Bill 2002: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
In page 51, before section 52, the following new section inserted:
52.—Section 38 of the Act of 1939 is amended by adding the following subsection:
‘(4) For the purposes of this Act, a Special Criminal Court is in existence if it has been established under this section and has at the relevant time not fewer than three members appointed under section 39.'.

Before dealing with this amendment, I will provide some background. As Deputies are aware, I obtained the approval of the Government last December for the establishment of an additional Special Criminal Court consisting of seven members. My objectives in this regard were twofold. First, dissident republican groups continue to pose a serious threat to the State. In this regard, I am determined to ensure that where persons who are intent on challenging the legitimacy and authority of the State are charged in regard to criminal offences, that such persons are brought swiftly to justice. In this context, the speedy resolution of trials before the Special Criminal Court will serve to demonstrate the State's resolve to deal seriously with any activity which is a threat to the State.

Second, I am also mindful of the need to avoid any difficulty or challenge on the basis that persons are being held on remand for lengthy periods of time pending trial. There are currently five cases before the Special Criminal Court and the earliest date available for a new trial is October 2005. Cases coming before that court can be complex and lengthy, as we have seen, and with only one court available, even one or two extra cases could greatly increase delays.

On 30 July 2004, in the case of Colm Maguirev. the Director of Public Prosecutions, the Supreme Court confirmed that, on application for bail, the question of whether a trial would take place is an admissible and important consideration. The court stated that if a long-deferred trial were in prospect, bail would be granted where otherwise it might be refused. As this House knows, following the referendum on bail, one of the grounds for refusal of bail, as a matter of constitutional and statute law, is where the prosecutor establishes there is a likelihood that, if admitted to bail, the accused is likely to commit a different serious offence.

That particular ground was introduced after a referendum, proposed by my predecessor, Nora Owen. However, the Colm Maguire case seems to indicate that this particular line of objection can itself be compromised if the State cannot provide an early date for trial. This presents a difficulty. For example, if a group of people is found in a paramilitary training camp and the Garda indicates to the court that it is objecting to bail on the basis that these were clearly paramilitary subversives intent on destabilising the State and carrying out serious crimes, it should not be the case that these legitimate objections to bail should be overturned by considerations such as the degree of delay in securing a Special Criminal Court trial by reason of that court's existing commitments.

These amendments do not in any sense indicate that I have flagged in my complete belief that the preferable form of trial for indictable offences is jury trial. I am presenting no qualification of that view. As long as there is a need for a Special Criminal Court, however, those who are brought before that court must be dealt with in a timely fashion. My objective is not to institutionalise the court or make it more permanent. On the contrary, the purpose of this legislation is to ensure that the injustice of delay to both prosecutor and accused in the criminal process is obviated to the greatest extent possible, even in the special circumstances where the provisions of the Constitution for the establishment of Special Criminal Courts have, unfortunately, been necessarily invoked.

There are some basic principles that must be considered in examining these amendments. First, in an ideal society, the normal rule of law should apply, namely, the process of trial by jury. This should be our objective. Unfortunately, however, we do not live in an ideal society but must contend with subversive elements and those who do not accept the rule of law within the State. In this situation, we must be prepared to ensure that the necessary measures are taken to accord with another basic principle, which is the safety of the public. This involves the establishment and continuation of the Special Criminal Courts.

So long as subversive elements threaten our society, I accept the need for such courts. I aim towards the situation where they will no longer be necessary and where normal jury trials will take place in all cases. However, such an eventuality is dependent on the ending of subversive activity within the State and the acceptance of the rule of law by all political and other organisations.

The second major principle to be considered is the fundamental provision that justice delayed is justice denied. If we must have Special Criminal Courts, there is an obligation on the State to ensure that those who are brought before such courts are dealt with as speedily, fairly and efficiently as possible. This necessitates the provision of trials within a reasonable time. If one Special Criminal Court is found inadequate to deal with cases in reasonable time, another must be established. If that is done, it must be properly underpinned in legislation. I support this amendment that underpins the principles I have outlined. However, I long for the day when there will be no need for Special Criminal Courts. In the meantime, however, we must ensure they operate fairly, efficiently and without undue delay.

This amendment gives rise to considerable concerns, already voiced on the Criminal Justice Bill 2004. The Minister for Justice, Equality and Law Reform justifies the establishment of a second Special Criminal Court on the basis that justice delayed is justice denied. Previous rulings on granting bail could be overturned if there was an inordinate delay in the provision of justice and a trial date being set in the Special Criminal Court. Will the Minister provide the House with statistics on how the Special Criminal Court has been used over recent years? Are there offences before the court which have nothing to do with emergencies or the scheduled offences in the Offences Against the State Act? Non-scheduled offences and those normally dealt with in the ordinary courts are being lumped into the jurisdiction of the Special Criminal Court. This information is required when examining whether the Special Criminal Court is operating in its remit or whether it has been unduly expanded to include a plethora of other offences.

Once the backlog of cases has been dealt with, will the Minister abolish the second Special Criminal Court? Otherwise there will be a recurring backlog because of the manner in which the legislation is applied and the court is operated. Non-scheduled offences can become the major part of the legislation. Deputy Jim O'Keeffe stated there was much subversive activity. It is ironic there is more subversive activity now than before the Good Friday Agreement. However, much of the subversive activity being dealt with by the courts and the Garda falls under the proceeds of crime legislation and the Criminal Assets Bureau. While some argue that such activity is another mechanism of usurping the authority of the State, it is covered by special powers legislation with accompanying investigative bodies. We must be careful to separate those two types of legislation.

The Good Friday Agreement contains an obligation for the review of all special powers legislation with a view to dismantling it. The British authorities abolished the Diplock courts under the Agreement. However, on our part there has been noquid pro quo.

This morning the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights heard representations from the Irish Council for Civil Liberties and Amnesty International on the Criminal Justice Bill 2004. Amnesty International is concerned with the bevy of provisions contained in this Bill that could be in breach of international requirements on human rights. If we introduce special powers legislation, safeguards must be put in place. There is no proposal in this legislation that the proposed second Special Criminal Court will be reviewed or abolished. When the Offences Against the State Act was amended after the 1998 Omagh bombing to provide extra powers for detention, a specific caveat was included that the provision was to be reviewed on an annual basis. However, what mechanisms will inform us that this second Special Criminal Court may become unnecessary? While the Minister claims he is establishing it to deal with the backlog of cases, no other reason has been given. More reasons and statistics must be given and a review mechanism must be put in place. Otherwise, we are being unfair and not entirely responsible in accepting this Bill.

On constituting a terrorist offence, this Bill includes everything, down to the kitchen sink. Schedule 2 would make one's hair turn grey, if it was not already so. Offences that may be considered terrorist and terrorist-linked activities include common law offences such as rape, manslaughter, assault causing harm, assault causing serious harm, poisoning and endangerment. Endangering traffic is also considered a terrorist offence. Malicious damage to railways, obstructing engines or carriages on railways are all considered terrorist offences. Our wonderful air force will be protected by the Schedule.

Will the Deputy stick to the amendment?

The Special Criminal Court will deal with many of these offences. Offences relating to firearms and other weapons are outlined in the Schedule, with reference to the Firearms Act 1925. Section 30 of that Act, dealing with the accommodation of firearms, requires amendment rather than the Criminal Justice Bill 2004. I say that jocosely, but having seen a presentation on the matter, the 1925 Act should be re-examined with a view to introducing further conditions. The Minister must give more information on the proposals for a second Special Criminal Court.

I welcome Deputy Jim O'Keeffe's support. Like him, I know that all lawyers share the view that the sooner we return to jury trial in all our cases, the better. It is an important constitutional right but one which the framers of the 1937 Constitution felt could be compromised if, due to the activities of others, the ordinary courts became inadequate for the proper discharge of criminal justice. It is not an unconstitutional or extra-constitutional power to look to what happens when a subversive and paramilitary threat appears which justifies the establishment of a Special Criminal Court.

Deputy Costello inquired if this is as a result of the backlog of cases and the placing of non-terrorist or subversive type of offences before the Special Criminal Court. All cases in the backlog are considered subversive type offences involving membership of illegal organisations, firearms and the like.

What about scheduled offences?

Organised crime type offences do not form part of the backlog. The Hederman committee reviewed the Special Criminal Court and came to the conclusion that the existence of the court was justified by subversive activity alone, that is, it was justified regardless of whether there was or was not some organised crime case which might or might not be sent to the Special Criminal Court.

Deputy Costello referred to the ingredients of the offences set out in Part 1 of Schedule 2. I refer the Deputy to section 4 which states

"terrorist activity" means an act that is committed in or outside that State and that -

(a) if committed in the State, would constitute an offence specified in Part 1 of Schedule 2, and

(b) is committed with the intention of—

(i) seriously intimidating a population,

(ii) unduly compelling a government or international organisation to perform or abstain from performing an act, or

(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a State or an international organisation;

Paragraph (b) is important too. I accept the Deputy’s point on the first part of the equation, the Schedule on page 88. However, one must take into account that the preconditions in section 4 paragraph (b) seriously restrict an apparently broad category of crimes to ones which have a terrorist function.

The other point one must bear in mind is that during the passage of this Bill, it was made very clear that the scope of terrorism was being further restricted to meet some of the criticisms made in this House on Second Stage. To prevent some of the cases mentioned on Second Stage, we, as promised, inserted into the legislation a provision stating that no offences could be proceeded with on an extra-territorial basis, or with an extra-territorial dimension, unless the Attorney General gave his consent to it. We spent a long time considering exactly how we would deal with the legitimate points raised on Second Stage in this House on that issue. This is formula we came up with in the end.

I take on board the point the Deputies made in regard to a second Special Criminal Court being established. However, a fair point to make is that if we establish a second Special Criminal Court and if the objective basis for its establishment continues, then nobody's rights will be interfered with by the fact that the trial it gives is speedier than otherwise. It does not dilute anybody's right. Nobody's rights are enhanced by the fact there is delay, while nobody's rights are interfered with by the fact that delay is removed.

I meant to compliment the Minister on the safeguards he included, particularly in regard to the Attorney General and the change in the definition. However, we have some problems with the proposal. If there was a review mechanism in the legislation, or something to say a second Special Criminal Court was established for a particular reason and that it will be done away with once that reason is removed, I presume the second Special Criminal Court would be able to deal with that pretty quickly and get rid of the backlog. If it does, should it not lapse or be abolished?

The definitions of terrorist activities the Minister mentioned are fairly esoteric. What does "seriously intimidating the population" mean? How does one seriously intimidate a population in a democracy? In certain jurisdictions, populations could be seriously intimidated. Perhaps the Minister will elaborate on that. Section 4(b)(ii) states: “unduly compelling a government or an international organisation to perform or abstain from performing an act”. This is weird and wonderful stuff. How does one unduly compel a government? Section 4(b)(iii) states: “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation”. Some people might feel some of our economic and social structures need to be somewhat destabilised and radically reformed. It is still very vague. The types of offences are extremely broad. That remains a concern.

These are matters which will be dealt with by a Special Criminal Court. Two decades ago, this legislation would have been regarded as emergency legislation but it is now becoming the norm in that it is being incorporated into our corpus of legislation. In our criminal justice legislation measures that would have been regarded with a jaundiced eye are now becoming quite normal. I have concerns about that and this legislation is one area in which these new measures are being introduced.

Seanad amendment agreed to.
Seanad amendment No. 2:
In page 51, before section 52, the following new section inserted:
53.—Section 49 of the Act of 1939 is amended by renumbering it as section 49(1) and adding the following subsections:
‘(2) A trial that is to be heard before a Special Criminal Court may be transferred by the Court, on its own motion or on the application of a triable person or the Director of Public Prosecutions, to another Special Criminal Court, but only if the first Court decides that it would be in the interests of justice to do so.
(3) In deciding whether it is in the interests of justice to transfer a trial, the Special Criminal Court may consider any factors it thinks relevant, including—
(a) whether the transfer would be in the interests of the expeditious administration of justice, and
(b) whether the transfer would prejudice the triable person or persons or the prosecution.
(4) A trial may be transferred under this section notwithstanding that an order has been made under subsection (1)(e) in relation to the triable person or persons.
(5) Where 2 or more triable person are to be tried jointly, the decision of the Special Criminal Court to transfer the trial applies in relation to all of them.
(6) Subsection (5) does not affect the right of a triable person to apply for a separate trial and, if the application is granted, then to apply for a transfer of that trial.
(7) The decision of a Special Criminal Court to transfer a trial is final and unappealable.
(8) In this section "triable person" means a person sent or sent forward for trial to, or charged before or transferred under this Act to, a Special Criminal Court.'.

This amendment is effectively to allow for the transference by a court on its own motion or on the application of a triable person or the Director of Public Prosecutions to another Special Criminal Court where only if the first court decides it would be in the interests of justice to do so. In other words, it will be open to any interested party, be it the defence, the prosecution or the court itself, to seek to have a trial transferred. The transfer will only happen if it is in the interests of justice to do so. The factors that can be taken into account are set out in subsection (3).

Subsection (4) states that a trial can be transferred under this section notwithstanding that an order has been made in relation to the triable person. Subsection (1)(e) provides that if one or more Special Criminal Courts are in existence, the DPP can apply to a court to have the trial before that court. Simply put, the fact the DPP has selected a particular court to hear the case does not prejudice the rights of an interested party to apply to have it transferred to another court.

I do not believe this provision could be characterised as in any way cutting across the rights of people. It is a fair provision and it is clear that nobody can forum shop and that the court from which the trial is to be transferred must come to the view that the request is being made in the interests of justice which would be served by the transference.

If we are to have a second Special Criminal Court, it makes sense to have practical arrangements applying in regard to the transfer of cases between the two courts. It is important that the necessary safeguards are included and I am glad they are. Whatever decisions ultimately emerge in regard to the listing of cases in the courts will be open to the possibility of the accused being heard and decisions being made in the interests of justice. From that point of view, I am happy to support these amendments.

I understand a transfer will take place only if there is a backlog in one court and a case needs to be listed in the other court. I refer to subsection (7). The decision of a Special Criminal Court to transfer a trial is primarily unappealable. If one of the two Special Criminal Courts decides to transfer a case to the other one, the other court has no choice but to accept. It cannot appeal to a higher authority. What would happen if the second court were not disposed to take a trial thus transferred to it? Why should the transferring court have full jurisdiction? If the second court cannot refuse, the first court could decide to transfer and get rid of all its cases or perhaps all its difficult cases. This seems to be somewhat one-sided.

I do not want any case to move like a ping-pong ball between two courts with both refusing it, which would fly in the face of everybody's concept of justice. For instance, at the moment cases are transferred between geographical locations under criminal justice law. It is not necessary to apply in Dublin to receive a case if it is to be moved from Donegal. It is generally presumed that the courts have a mutual respect for each other's decisions and if a court in Donegal were to decide to transfer a criminal case for trial in Dublin, a court in Dublin will not send it back on the basis that it was not asked. These decisions are not made lightly and members of the Judiciary respect each other's decisions. In these cases we do not have a regulator who arbitrates between two judges neither of whom wants to deal with the case. In general such a case is dealt with on a commonsense basis. If one court concludes it is in the interests of justice that it should not deal with a case and that another court should, all relevant issues would be ventilated before the first court and the case would not go into limbo between the two courts.

What is the thinking behind the proposal that the decision of the Special Criminal Court to transfer a trial is final and unappealable? When dealing with the administration of justice, one feels that any decision of a court in normal circumstances should be capable of being appealed and decided by another court. Why has such a decision been made final and unappealable?

The Deputy will remember that as a matter of ordinary criminal justice procedure, at the moment provision is made for the transfer of cases from one court to another on a geographical basis in Ireland. Exactly the same provision applies in respect of that. They are considered to be final and unappealable orders. We do not want cases going into limbo or hyperspace between two courts. However, saying that a decision is final and unappealable does not mean it can be made unlawfully. Somebody might be able to put together a case stating that it was an unlawful exercise in a particular case.

If a judge decided to transfer a case from A to B for some prejudicial purpose or arbitrary reason, such as he did not like people of a particular class, colour, religious belief, sexual orientation or whatever, and it was manifest from the order that he had moved a case from Donegal to Dublin on such an arbitrary and unconstitutional basis, the fact that the decision is final and unappealable does not preclude going to the High Court to have the order quashed on the basis that it should not have been made in the first place. However, this would need to be done by way of judicial review and would not be an appeal as of right internal to the procedure, which is the distinction.

Will the Minister answer my point about the second Special Criminal Court? Surely it would make sense to have a proper listing giving a balance between the two courts. The power is given in this legislation exclusively to a court to transfer to another court. The power is not given to that court to have any say in the matter, regardless of how unfair it might be or what its workload might be.

As I said, that is the case for geographical transfers. If it were a case of "out of the frying pan into the fire" with, for example, a case going from a court with no delay to one with a substantial delay, the first court should make the inquiry as to whether it is in the interests of justice and whether an early trial is likely to occur if the decision is made. The court would ask the parties to the case whether they are satisfied that if the case were transferred it would result in an earlier trial or whatever the point at issue might be. When given this function of not making an order unless it is in the interests of justice to do so, the members of the Judiciary would make precisely this kind of inquiry of the person requesting the change. Presumably in an adversarial system such as ours, if the Director of Public Prosecutions requested a transfer, the accused person could point to the likelihood of only getting a trial in six months' time instead of the following week. If the court asked counsel for the Director of Public Prosecutions and was advised this would be so, in all probability it would not be in the interests of justice to transfer it to the second court unless some radically different supervening reason could justify such a delay.

This provision is not unconventional. Where we provide for a transfer of a case from one court to another, the application and all the interests of justice issues are addressed in the first court and the second court is presumed to pay respect to the decision of the first court. If the decision were made improperly as a matter of law, while judicial review would be an option, an internal mechanism of appeal as of right is not provided in these cases as some certainty is needed. We cannot have cases lodged in some form of hyperspace between two courts.

The Minister's response does not explain the matter. While I do not want to labour the point, the first court can transfer a case if it decides it would be in the interests of justice. However, the first court will be the only court consulted on the matter. How will the first court decide? Will it play tick-tack with the second court? Nothing in the Bill allows it to do so. Only the first court can do so and this decision is unappealable. This could result in considerable friction between the two Special Criminal Courts.

Subsection 3 of the amendment states:

In deciding whether it is in the interests of justice to transfer a trial, the Special Criminal Court may consider any factors it thinks relevant, including—

(a) whether the transfer would be in the interests of the expeditious administration of justice, and

(b) whether the transfer would prejudice the triable person or persons or the prosecution.

All those issues must be considered, including expeditiousness. These are the issues capable of being viewed by the court where they are relevant. To provide otherwise would be to introduce a new mechanism of some kind of consultation and statutory uncertainty while two sets of judges consider a matter in two different locations, which would not be satisfactory and cause delay.

I am just trying to be helpful.

Seanad amendment put and declared carried.
Seanad amendment No. 3:
In page 55, before section 59 and Part 7 of the Bill, the following new section inserted:
"PART 7
COMMUNICATIONS DATA
59.—(1) In this Part—
‘Act of 1993' means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;
‘aggregated data' means data that cannot be related to individual subscribers or users;
‘data' means communications data;
‘data retention request' means a request made undersection 61 for the retention of traffic data or location data or both;
‘designated judge' means the person designated under section 8 of the Act of 1993;
‘Directive' means Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and protection of privacy in the electronic communications sector;
‘disclosure request' means a request undersection 62 for the disclosure of traffic data or location data retained in accordance with section 61(5);
‘Garda Commissioner' means the Commissioner of the Garda Síochána;
‘processing' has the same meaning as in the Data Protection Acts 1988 and 2003;
‘Referee' means the holder of the office of Complaints Referee under the Act of 1993;
‘service provider' means a person who is engaged in the provision of a publicly available electronic communications service by means of fixed line or mobile telephones.
(2) A word or expression that is used but not defined in this Part and is defined in the Directive has the same meaning in this Part as in the Directive.

I wish to give some background to this set of amendments, as they were not present when the Bill was passed by this House. The data retention amendments, which are set out in amendments Nos. 3 to 9, inclusive, and their timing represent a response to a confluence of circumstances.

In January of this year, the Data Protection Commissioner, a statutory officer who is independent of the Minister for Justice, Equality and Law Reform, issued enforcement notices to telecommunications companies, directing them to erase telecommunications data as soon as it was six months old. As the notices were due to come into operation on 1 May 2005, a rapid response to them was essential. One of the reasons given by the Data Protection Commissioner for the notices was that he did not consider that there had been adequate legislative underpinning of the existing directives, which had been issued by my colleague, the Minister for Communications, Marine and Natural Resources.

The importance of data information in fighting crime, including terrorist crime, and in safeguarding the security of the State cannot be underestimated. I do not refer to issues of a "big brother" nature, but to criminal matters such as nuisance calls. Data information can be used to determine where a particular person was at a certain time, for example, or whether a prosecution witness is being truthful about when he or she received a telephone call that may be relevant to the facts at issue in a given case. Such information may be of use to the defence side of a case as well as the prosecution.

When the Data Protection Commissioner issued the enforcement notices, I decided that I could not allow the Garda Síochána or anybody else to lose access to data information as soon as it was six months old. As it would not have been practical to prepare a separate Bill and to guide it through both Houses by 1 May next, I decided to add the necessary provisions to the Criminal Justice (Terrorist Offences) Bill 2002 while it was before the Seanad.

Deputies may be aware that an EU framework decision on data retention was published last year following the terrorist bombings in Madrid. The decision, which arose from a declaration on combating terrorism, instructed the European Council to adopt an instrument on data retention by June 2005. The framework decision, which was a response to the declaration, encountered some technical difficulties during the negotiations on it. It is doubtful, regardless of whether the framework decision or an alternative instrument is eventually agreed, that it will be possible to adopt any instrument by June of this year. It is normal to await agreement on such international instruments before preparing implementing legislation.

If the Data Protection Commissioner had not acted as he did and if the EU had not encountered the difficulties I have mentioned, different options would have been open to me. It is like standing with one's feet in different boats which are beginning to move apart — one will eventually have to make a decision. In this case, I would have had to decide whether to legislate on a domestic or a European basis. In the circumstances, I had to act quickly. I had no choice but to legislate at this time, given the possible delay in obtaining agreement on an EU instrument and the timing of the enforcement notices issued by the Data Protection Commissioner, who is entitled to withdraw the notices he has served. I understand he stated his intention to withdraw the notices if I were to publish legislation, which is passed by the Oireachtas, to put this matter on a statutory basis.

The necessity for this legislation was reinforced by the recent decision of the Court of Criminal Appeal in the case of Murphyv. Attorney General. The legal advice available to me on the implications of the judgment is that primary legislation on data retention, with statutory safeguards, is necessary. Incidentally, the court’s judgment fully vindicated the use of communications data in the investigation of crime.

I emphasise two points before I outline my proposals. This legislation is concerned with data information such as the telephone number phoned, the time at which a call was made or the duration of a call. It is not concerned with the content of the call, which is dealt with in separate legislation from 1993. Section 60 clearly sets out the parameters of my proposals to ensure that there cannot be ambiguity on this point. The proposals are temporary measures for inclusion in this Bill as a matter of urgency, for the reasons I have outlined. As soon as an EU instrument is agreed, I intend to replace it with more comprehensive legislation that will take into account the provisions of the instrument.

Some people might wonder why I am making these proposals or why I am waiting for the EU to take a view on the matter. It is possible for somebody living in a certain jurisdiction to subscribe to a telephone service coming from another jurisdiction. That might not be as obvious in this country as it is elsewhere because we are on the north-west periphery of the European Union. A person living in County Louth could subscribe to a UK telephone service or a person living in Newry could subscribe to a telephone service in the Republic of Ireland. It is obvious that there are places across Europe in which it is possible, under free trade rules, to subscribe to and use a service which is provided outside one's jurisdiction.

There is a case for having the same minimum rules and parameters in respect of this issue across the EU. It is not the case that the EU is engaging in gratuitous meddlesome activity. It is not a case of integration or harmonisation for its own sake. There will be certain implications if a telephone company in one EU member state is required to store data and to make that available for retrieval at a later stage, at its own expense, while another member state is indifferent to the matter and decides not to bother with it. The timing of the legislation will depend on when agreement is reached on an EU instrument, as well as on its complexity. As things stand, it is likely to involve a unanimous decision of the 25 member states, although I am not certain. In arriving at an agreement, the speed of the train will be determined by the speed of the slowest carriage.

I preface my explanation of the data retention provisions by further emphasising that they place no more obligations on communications service providers than the current provisions. However, I am incorporating into data retention for the first time important safeguards which will ensure that the system cannot be misused in any way. As things stand, service providers which receive directions are obliged to retain telephony data for three years, under directions issued by the then Minister for Public Enterprise in April 2002. It was intended that the directions would be temporary and would be replaced by primary legislation, as I now propose.

Section 61 of the Bill gives the Garda Commissioner the power to ask a service provider to retain communications data "for a period of 3 years". Under section 61(1), the data will be retained for the purposes of:

(a) the prevention, detection, investigation or prosecution of crime (including but not limited to terrorist offences), or

(b) the safeguarding of the security of the State.

Section 62 states that the data can be accessed in circumstances similar to those inserted in the Postal and Telecommunications Services Act 1983 by the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. Under section 62(2), if the data are required for the purposes mentioned in section 61(1), an application for access to the data must be made in writing by "a member of the Garda Síochána not below the rank of chief superintendent". The data will then be disclosed to that officer. Alternatively, section 62(3) allows for the application to be made by "an officer of the Permanent Defence Force not below the rank of colonel" when the data are required for the purpose of safeguarding the security of the State.

Sections 63 to 65 introduce for the first time the safeguards I mentioned some moments ago. The sections extend to data retention provisions the safeguards already in existence under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, which ensure the integrity of the interception of communications. I refer to matters such as telephone tapping, to use a colloquialism. As a result of this legislation, data retention provisions will be kept under review for the first time by the same judge of the High Court who keeps the interception provisions under review under existing legislation. The judge will also have the power to ascertain whether the Garda and the Defence Forces are complying with the data retention provisions. He or she can include in a report to the Taoiseach such matters relating to data retention as he or she considers appropriate.

Similarly, the existing arrangements relating to complaints referees, who are appointed under the 1993 Act, will apply in respect of data retention. The scope of the functions will be extended to include data retention provisions. Any person who believes that data relating to him or her that is in the possession of a service provider may have been accessed by the Garda or the Defence Forces can apply to the referee for an investigation. The referee can investigate whether a disclosure has been made and, if so, whether any provisions of section 62 have been contravened. If the referee concludes that there has been a contravention of section 62, he or she must notify the applicant and report his or her findings to the Taoiseach. The referee may also order the destruction of the relevant data and recommend the payment of compensation to the applicant.

I sum up the data retention provisions in amendments Nos. 3 to 9, which constitute the new Part 7 of the Bill, by stressing the importance of communications data in the continuing fight against terrorist crime. I do not want to refer to current investigations or investigations of relatively recent origin. Every Member knows that telecommunications data do not apply simply to big brother circumstances but also to personal tragedy and, therefore, there should be a coherent legislative basis therefor. If I simply made provisions underpinning the present regime without providing further protections, Deputies on both sides of the House would obviously ask why it is right to allow a High Court judge to keep an eye on what the Minister for Justice, Equality and Law Reform is doing regarding phone tapping to determine the content of communications while there is absolutely no supervision to determine whether chief superintendents of the Garda Síochána who are looking for data are abusing their power. This is a fairly cogent argument and it had to be met head-on. In any event, our obligations under the European Convention on Human Rights might well require us to extend that kind of independent supervisory mechanism from phone tapping to data communication-type circumstances.

I must accept that the proposals are modest in that they do no more than effectively continue the present procedures and provide legal certainty. In that sense, they do not extend Garda powers beyond their present scope but, in view of the sensitivity of the subject, they provide strict new safeguards to ensure the proper and safe operation of the system.

On phone tapping and intervention to open postal packages, the relevant power is vested in me. I must operate on the basis of a public servant who is the authorised officer under the legislation. It is not proposed to vest the power under discussion in the Minister for Justice, Equality and Law Reform under the new provision. This is for a very good reason. In the case of a ring buying and selling hot cars, for example, the volume of applications could be substantial. It would be incorrect to contend that the Minister for Justice, Equality and Law Reform could spend his day authorising follow-on applications for data. I would do nothing else if I were to do that kind of work and I would not be able to supervise in any way. It is sensible to vest the power in senior Garda officers and it would be fanciful to suggest a Minister could discharge the function.

Regardless of who discharges the function, there is no argument against putting in place the same supervisory mechanisms. These mechanisms are such that a judge of the superior courts can vet what is happening every year and check by way of audit that there are good reasons for each action to be taken, and that somebody who believes his data were accessed improperly can go to an independent referee, make a complaint and, only if it is found that his data were accessed improperly, be informed of that fact, after which the independent referee can order the destruction of the data in question and propose compensation for the victim of the abuse of the power.

It would be in everybody's interest if a Europe-wide system were adopted as soon as possible because, as the Minister stated, communications systems are generally international. Such a system has not yet been put in place and, therefore, I appreciate the need to deal with the current set of circumstances.

I accept the need for these amendments and the only issues about which I want to raise concern are the adequacy of the safeguards. I recollect a time when the phone tapping system was abused. It was not abused openly and directly by the Garda Síochána but by the then Government. This strengthens my resolve to ensure that any system put in place, which would be underpinned by statute, would provide full and adequate safeguards. I appreciate the need for access to data but I would prefer if it were not achieved directly through the initiative of a senior member of the Garda Síochána. I would prefer if there were an independent body to which the Garda could make an application. I understand the practical difficulties that exist. Will the Minister outline the consideration that has been given to establishing such a body?

Many people would like to ensure that in the fight against crime access to data by senior members of the Garda would be possible, but they would also like to be satisfied that there are sufficient safeguards to ensure that any such power could not be abused in any circumstances.

This is a fairly far-reaching measure and I understand the Minister's reasons for introducing it and particularly for ensuring that it is not abused. As we know, existing powers allow for interception, collection and the use of telecommunications data and other forms of data. However, a broader range of powers is being provided for and there seem to be very few safeguards. Section 61(1) states:

Subject to subsections (2) and (4), the Garda Commissioner may request a service provider to retain, for a period of 3 years, traffic data or location data or both for the purposes of—

(a) the prevention, detection, investigation or prosecution of crime (including but not limited to terrorist offences), or . . .

Prevention of crime is not very well defined and could lead to what is very much characterised as a trawling exercise. The definition is very broad and open to abuse. It could be argued that there is a big brother element. The power to deal with this matter rests with the Garda, the Defence Forces and the service providers and there is no monitoring body directly involved. There is no independent mechanism or forum to deal with the matter. What is the position on a service provider who decides to interfere with the general information that is collected, bearing in mind that we are not talking about interfering with the substance of the material at this point? What controls are there on a service provider once it has retrieved the data retained for three years and which it knows to be sensitive because the Garda or Defence Forces have contacted it? There is always fierce competition within the business community and a great deal of sensitive data passes through electronic and telecommunications networks. Newspapers thrive on private matters and make scandals out of people's lives. How can we control the service providers? What provision is there in this legislation to monitor them?

Monitoring takes place only if there is a complaint and complaints arise only when something goes wrong. How are we to know whether something is going wrong if there is no independent mechanism to monitor the service providers' retention of the data? Will it be stored in such a way that we can be sure it is safe? The Minister has secure accommodation for firearms but what about the data kept for three years? Given that everybody knows it is significant information, it is important to ensure it is safely stored.

I note the role of the Taoiseach in the matter but why has the Minister decided that the report of the findings of a complaint procedure would come to the Taoiseach, although one of the duties of the judge is to the Taoiseach or to the Minister? Would it not be better to give an annual report on how this operates? The Minister could report to the House on how data collection and retention mechanisms operate so that we could see what type of applications come from the Defence Forces, their number and statistics, and what applications come from the data, with statistics on that and how the service provider deals with the applications. We would see what mechanisms for secure safeguarding are in place, how many complaints there are and how many are vexatious or frivolous. What constitutes such a complaint? If one thinks that someone has been interfering with one's data, one is surely entitled to complain but the referee can unilaterally determine it to be frivolous or vexatious.

I have many concerns about this legislation. The Minister indicated that he intended to review it and introduce a more comprehensive Bill when the EU directive is available for implementation. It would be useful to know how long this legislation will remain in place in its present form.

The Minister says he did not have much influence in the matter but this material should have been before us on Second Stage for a proper debate and the Oireachtas Committee on Justice, Equality, Defence and Women's Rights could have teased it out at an oral hearing. In that way we could have examined the provisions to see whether they are commensurate with our other international commitments and civil liberties and so on. Will the Minister provide more information and will he consider putting further safeguards in place?

I have already made clear my views on the repressive emergency legislation, the Offences against the State Act, and the European Arrest Warrant Act. We opposed this Bill on Second and Report Stages because it is repugnant to the principles of human rights and fundamental freedoms. Unfortunately, the amendments before us do nothing to alter this view.

I particularly oppose the new section which the Minister has introduced concerning traffic data retention. This is not only because it infringes the right to privacy, has fundamental and significant human rights implications and the Human Rights Commission has not had an opportunity to give its opinion on this and other amendments, but also because it is another instance of the Government making an illegal practice legal retrospectively, similar to the Health (Amendment) (No.2) Bill. I oppose it because of the manner in which the Minister is inserting these sections into this legislation by stealth at a late stage, which is anti-democratic.

My office never received the amendments and on inquiry was initially told that they would be published only this morning. That was misinformation. They were not available electronically. They were not in the internal mail this morning and I was informed that they were not circulated at all. They had got stuck in the General Office whose staff did not seem to be aware they had them. I cannot speak for other Deputies but I had only two hours in which to peruse these proposals. Human error or not, this is not acceptable. The debate should at the very least have been postponed on that basis as well as on the basis of my other points.

The first legislative programme of this Government contained a promise to introduce a communications data retention Bill to oblige licensed operators to retain records of communications data for a specified period necessitated by the terms of the EU telecommunications directive. It is listed as No. 63 in the legislative programme published on 25 January last. When my colleague, Deputy Morgan, yesterday asked the Tánaiste about the status of that Bill and when it would be published, she replied it was already in the Seanad. While her reply was somewhat incoherent, I can only take it that there is no communications data retention Bill apart from these amendments.

The Minister, who knows these measures are controversial and, some would say, illegal, wants to limit democratic debate on them as much as possible. It is his standard practice to use amendments to introduce one Bill inside another. I asked him a question on the data retention Bill on 6 March 2003 because the impending legislation was a controversial matter and had been opposed by human rights advocates across Europe. The Minister replied that he intended to publish the Bill in 2003 but I have not seen it. I am not certain whether this series of amendments is in effect that Bill.

The Minister also said that the legislation would be subject to the normal rigours of passage through the Oireachtas, including Committee Stage scrutiny. The Minister misled the Dáil and possibly also the Seanad and the public in this regard. I do not accept his reason for introducing these amendments at this stage. The safeguards in which he places great faith are not adequate.

The Bill does not provide for any punishment for somebody who misuses this. There is compensation but no punishment. These sections should not form part of the Bill but should be resubmitted for proper public scrutiny.

A debate should be held, as originally promised, on a separate communications data retention Bill. If the Minister does not withdraw amendments Nos. 3 to 10, this debate is similar to many other debates in that this legislation is a farce, like other legislation brought forward by this Minister.

Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.