In general, I welcome the Bill. I spoke about it when it was published but I was not involved on Committee Stage. It is all about what checks and balances are included in the Bill and at a level of principle, if we decide to give the Garda power to combat criminal gangs, once we have provided the constitutional protections required, we should leave it at that. There is no point in introducing provisions to allow the Garda to carry out surveillance on criminals and use the information gathered as evidence in court but then trammel them with many sub-clauses that if they err, they are tripped up.
The thrust of the Bill is to encroach on the constitutional rights of certain individuals. Whenever surveillance is allowed under law it encroaches on the right to privacy of the individuals being surveilled and often on that of their families and social contacts as well. It must be proportionate and necessary. It is proper that the Minister should decide the Garda cannot go on a fishing expedition and that surveillance is confined to the search for information to be used in evidence which cannot be acquired otherwise by the Garda. This is quite a severe restriction on the activity and I am not too sure how it will play out in practice. I am not sure it is practicable. Does it mean that if a sergeant in charge were to assign two gardaí to follow a particular vehicle around the town on a night the Garda resources to do so were available that a tracking device could not be used on that vehicle because the information could have been obtained through normal Garda activity? That is just an aside.
The safeguard that it must be a superior officer, a senior Revenue officer or a senior Army officer that instigates the surveillance in the first instance is appropriate, especially when the senior officer in question has to go to a District Court judge to get permission. The mechanism whereby the referee can review situations subsequently is also proper and proportionate and the safeguards are being provided.
The one area about which I have concern is the 72-hour provision, where recourse to a District Court judge is not required in certain situations of urgency. This certainly will be open to challenge. I appreciate that similar provisions are in place in other European jurisdictions but it is difficult in the first instance to envisage why it would be difficult as a matter of urgency to have recourse to a District Court judge. Even if it is, one could envisage a situation arising where a person was kidnapped and being held to ransom, a District Court judge could not be found and surveillance devices were used to gather information or tracking devices were used on certain vehicles.
I query the constitutionality of this provision. In analogous legislation, the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, there is recourse to a District Court judge and in the main provisions of this Bill there is recourse to a District Court judge. I can see why the Garda authorities would consider it necessary to have a period of 72 hours without recourse to a District Court judge but will the Minister re-examine this provision to ensure its constitutionality?
I do not know whether it was amended on Committee Stage but when I read the Bill originally the provision to surveil for a period of 72 hours could be done on the say so of a superintendent. At a minimum that should be a chief superintendent. Analogous provisions normally require the warrant of a chief superintendent rather than a superintendent. In so far as possible the Minister should proof this provision against constitutional challenge. There is no point in having provisions if subsequently they are attacked constitutionally and serious criminal activity goes unpunished because the law was flawed because we in these Houses did not do our job. The Minister must proof this constitutionally and that is a weakness in theBill.
I am not sure whether the ombudsman's office should be used. The use of a district justice and the referee system to subsequently assess the manner in which the Act is applied gives adequate constitutional provision. There is a mechanism for complainants through the referee system and this is analogous to the 1993 Act. The ombudsman's role is different and the office in the short time it has operated has been effective, but when something is working well, we should not load every task on top of it.
The provisions are adequate for the needs of the Bill to provide the constitutional safeguards necessary. The opening position is the House on the advice of the Minister is deciding to invade the constitutional rights of certain individuals, principally the right to privacy, and that must be balanced with a series of safeguards in order that this is only done in exceptional circumstances, where it is necessary and proportionate to do so. However, once the balance is struck, it is struck and the Minister has it right with the exception of the 72-hour provision where there is an element of doubt about whether the safeguards are sufficient.
