I was surprised at why the amendment was necessary. If it were tabled by the Opposition, the Minister would say it is self-evident and not required in the Bill. I am not entirely clear on why it is necessary.
Criminal Justice (Surveillance) Bill 2009: Report and Finals Stages (Resumed).
It is for the avoidance of doubt.
Amendments Nos. 13 and 23 are related. Amendment No. 23 is an alternative to amendment No. 20. Also alternative to amendment No. 20 are amendments Nos. 21 and 22 and amendments Nos. 24 to 27, inclusive. Amendments Nos. 17 and 18 are related to amendments Nos. 24 and 25. Amendment No. 19 is related to amendment No. 26. Therefore, amendments Nos. 13 and 17 to 27, inclusive, may be discussed together by agreement.
I move amendment No. 13:
In page 7, line 34, after "place" to insert the following:
"and may authorise interference with private property for the purpose of installing or operating such surveillance device without the consent of the owner of such property".
As I understand it, we are not conferring powers of surveillance on the Garda. It already has that power. We are seeking to regulate it and make material so gathered admissible in evidence. The purpose of the Bill is to regulate surveillance, as distinct from authorising it. In that regard, I argued on Committee Stage that there is a lacuna in the Bill as it stands, in so far as while it regulates the act of surveillance and, to some extent, entry onto private property, it does not regulate interference with private property. I drew attention to the fact that the UK legislation, which I have glanced at since, expressly does so.
I do not know why it is not necessary for us to do it, which was the point of my intervention on the previous amendment. The Minister said it is for the avoidance of doubt, which I anticipated he might say, and I understand that. However, I would have thought that for the avoidance of doubt we would need to take care that the provision expressly regulates interference with property. We caught sight of a note prepared for the Minister for Government earlier, which drew attention to the problem of malicious damage. Notwithstanding that, we are not seeking to address it. I tried to address this on Committee Stage. I will not delay the House on it, but I thought for the avoidance of doubt the Minister should take it on board.
I have tabled a number of amendments. The first in my name in this grouping is amendment No. 17, which seeks to insert three additional points which would be required for the record of approval, namely, the grounds on which the approval was granted, the less intrusive or other means considered and determined insufficient and the efforts made to secure an emergency judicial hearing.
It does not take away from the intent. It is to make sure that consideration of alternative measures was given before approval was granted. We recognise the need for the Garda to be able to, on occasion, issue its own authorisation for surveillance in exceptional, urgent cases, but it is a major power to grant and, as such, the primary legislation underpinning it must contain safeguards. The three additional safeguards would not overburden anybody in granting an authorisation and writing up the record. We want to make sure that the Garda Síochána does not get into the habit of issuing its own authorisations unnecessarily and that the issuing garda must go through a number of steps.
Mr. Justice Morris and others have looked at the other areas where gardaí have issuing powers of similar gravity, such as the power to extend detention and issue search warrants in urgent circumstances. He was critical in his report of the practice of senior gardaí in these matters, and noted that they seemed to operate as little more than a rubber-stamp whenever a request was submitted by investigating officers. As we are discussing interfering with some fundamental rights and the right to privacy, it important that senior gardaí actively consider the merits of the request and whether the surveillance is truly necessary and proportionate.
Amendment No. 18 proposes an additional safeguard and to insert, in page 9, line 17, after the word "hours", the phrase "he or she will then produce a written record of the variation and the reasons for same". It is a matter of seconds, but we would ensure that the garda in question has sat and thought about the determination before making it. The advantages of that would then stand up in court.
Regarding amendment No. 19, as it stands unless a complaint is made there is no independent oversight of this significant garda power. As the nature of covert surveillance is secretive, in many cases a person will not know to complain, even if his or her rights are being abused by an unlawful use of this power. For this reason, there should be some type of independent oversight of this power. We are creating oversight with regard to many other issues and in this instance we seek to ensure that the designated judge has an oversight power.
Amendment No. 20 deals with tracking devices. The Human Rights Commission believes tracking devices should not be singled out and treated differently from other forms of surveillance.
Amendment No. 21 refers to section 8. Section 8(1) refers to a period of four months whereas the rest of the Bill refers to a period of three months. The amendment seeks to standardise this because I do not see why there should be a difference in the timeframe. Even though this section refers to tracking devices, three months is a sufficient period and the permission can be renewed thereafter if necessary, although obviously with the safeguards.
On amendment No. 22, it is not clear why paragraphs (b) and (c) are required. I suggest we should insert paragraph (a) with (b) and (c). It is welcome that gardaí requesting permission to use a tracking device have reasonable grounds for believing the device is proportionate to its objectives and used for the duration that is reasonably required. However, she or he should also have grounds for believing that it is the least intrusive means available. The amendment is proposed as a matter of ruling out whether there are other alternatives.
Amendment No. 24, in my name also, is similar to the amendment I proposed to section 7. While I will not go back over the issue again, the amendment seeks to ensure that the powers are conditional on ensuring a proper record is kept.
Amendment No. 25 is self-explanatory and seeks to add an additional safeguard. Amendment No. 26 is similar to what I have already argued in regard to amendment No. 19. Amendment No. 27 again seeks to standardise the period of months from four to three.
I welcome the Bill, which is essential in the current climate, particularly given the events of recent days when there has been slaughter on the Malahide Road and young men in their 20s have been shot down and murdered, and there have been other gangland killings, particularly on the northside of Dublin.
I strongly support amendments Nos. 13 and 19. However, we also have a duty, as legislators, to consider the amendments very closely. Amendment No. 13 in the name of Deputy Rabbitte states: "and may authorise interference with private property for the purpose of installing or operating such surveillance device without the consent of the owner of such property." There are serious issues at play here. I strongly believe this type of policing must be intelligence-led policing. The Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, is aware this is key in any strategy and knows we must have such policing if we are to tackle these issues. However, there are pitfalls of which we must be very careful, and issues of which we must remain conscious.
It is an issue I come across in my constituency. When people give me information about gangs, drugs or similar issues, they are very conscious when telling me the information that if there is any way it can be traced to them, their house, family or car will be burned out. This is the reality for many parents, particularly in very disadvantaged communities. I know many Deputies find at local clinics and during walkabouts in their constituencies that these are the kinds of issues which people whisper privately in one's ear, and the Deputies then pass on the information when meeting gardaí. However, ensuring our citizens are safe is the priority and must be an important part of the strategy.
A recent example which concerns the surveillance issue relates to amendment No. 13 and deals specifically with private property. We must be very careful, if private property is being used for intelligence observations of gangland figures, that those associated with that private property are not under threat themselves. In my constituency, gardaí often want to use schools as observation points for observing drug dealing. However, if the word goes out that the school or a particular classroom is being used by gardaí, that school will not last 24 hours without being burnt down. We have a duty to ensure the safety of our citizens at all times. I have direct experience of this. I know particular schools that turned down Garda requests in regard to surveillance because they were worried they would not have a school there when they came in on the Monday morning. This is a reality we must face and the people involved in justice and security issues must wake up to this situation.
Intelligence-led policing is the way to tackle gangland crime but there should never be a restriction of fair trial rights, which is not a contradiction. Trials are another way of tackling gangland crime, although this is often an issue people complain about, particularly those on the extreme right in this country. They say that those of us who jump up and down about human rights do not care about the human rights of the victims, which is rubbish. We are strongly in favour of the human rights of all our citizens and of having them treated on an equal basis. In this situation, the right to life takes priority, which is why I will be supporting the legislation. We cannot have young men in their 20s being shot down like dogs on the Malahide Road, as happened in recent days, and other incidents across the city, of which many Deputies have experience. There are those who advocate the role of the Special Criminal Court but this would do nothing whatsoever to tackle the problem of witness intimidation.
As I said, the key to the issue is good, intelligence-led policing and quality management of the Garda. I have seen excellent examples of good practice in regard to these issues. Where there is a good sergeant, a good drugs squad team and a good operation, much work can be done, much crime prevented and, more importantly, deaths can be prevented. There is not enough focus on preventing the loss of life. There is a big hurrah and reaction when somebody is shot down on a street but when it comes to trying to prevent this, not enough recognition is given to those involved, such as the gardaí involved in Operation Anvil, for example, who are preventing deaths, crimes and serious intimidation. It is an issue of which we should be very conscious and there are some fine examples of good practice in this regard. Surveillance is very important in preventing the loss of life and the sale of drugs.
While we are having this broad debate in regard to surveillance, I suggest there should be more surveillance of those involved in the purchase of drugs. We hear a lot of talk about those who distribute the drugs, which is important, but I am talking about the posh, middle class people who go looking for their little bit of cocaine on a Friday or Saturday night. They should be hammered because they are part of the problem, which is that there is a market for these drugs. Drug dealers do not make money unless there is a huge market. There is a reluctance with regard to certain people but they should be hammered. People in Irish life, including so-called celebrities who are involved in that trade and who sniff their bit of cocaine at the weekend, should be hammered and used as an example. It is very easy to get the young fellow from Coolock or the inner city and hammer him for doing something related to drugs. However, there are many people who are very well off, who have money and who generate a market for drugs and I have no mercy or sympathy for such people. I refer specifically to those involved in the music industry, the media, television and such people, whom we all know and some of whom joke or brag about it. That issue must be addressed. There is a market and I urge the Minister for Justice, Equality and Law Reform to hammer them.
Regarding gangs, communities alienated from the police and society must be turned around and won over from the point of view of the Garda. I recall when the late Tony Gregory was involved in the drugs issue in the north inner city. The Garda and especially the drugs squad should not seek the respect of the community, they must earn that respect and when they do so, they will have the full support of the community. That is a very important part of any strategy related to the broader debate. I welcome amendments Nos. 13 and 19.
I thank the Deputies for their remarks. I refer to Deputy McGrath's comments on hammering people who create a demand by taking recreational drugs. While I am inclined to agree with him, I do not wish to paint everyone with the same brush. He mentioned several professions.
Even Ministers were involved we are told.
It would be unfair to say that all members of the media or the music profession indulge. However, I agree with his overall sentiment that some people fuel demand and clearly people are filling that gap. It is the job of all of us to ensure that the proper legislation is in place and sufficient resources are given to the Garda, the Defence Forces, the Revenue Commissioners and the Customs and Excise to stamp it out as much as possible.
I refer to the proposed amendments of which there are several and I have a long explanatory note. It is best to stick to the note because it answers many of the questions raised. Some of these issues were raised on Committee Stage and were examined. I refer to amendment Nos. 13 and 23 moved by Deputy Rabbitte. We examined these and consulted with the Office of the Attorney General. The belief was the text in sections 5(7) and 8(5) is already broadly drafted and deliberately wide enough to encompass different places and ways in which surveillance may be initiated. To use the words "installing or operating a device", the term proposed in the amendment, would be more restrictive and could, therefore, have the inadvertent effect of narrowing the scope of the provision by suggesting an officer may only enter private property when he is installing or operating a device. Otherwise, by implication, if he wishes to do something other than install or operate, he would have no right of entry. This is the view of the Parliamentary Counsel.
Similarly, the definition of "place" in the interpretation section is sufficiently broad to include private property. A judge already has discretion under the Bill to attach conditions to the authorisation as does a senior officer who issues an approval under sections 7 or 8. Earlier, Deputy Ó Snodaigh referred to tracking devices and suggested that other than someone making a complaint there is no oversight for tracking devices. This is not correct and there is provision to have oversight of all surveillance including tracking devices and non-tracking devices in the legislation. This is covered in section 12.
The procedure governing the right of entry to a place, whether private property or otherwise, and the initiation of surveillance in whatever form would be the subject of conditions imposed by a judge when issuing an approval under sections 7 or 8. My view, supported by the Office of the Attorney General, is that the text is sufficiently broad and already encompasses the Deputy's two proposals.
I refer to Deputy Ó Snodaigh's amendments Nos. 17, 18, 24 and 25 which seek to provide for the inclusion of additional information in the written records of approval given by superior officers under sections 7 or 8 and to produce a written record of any variation to approvals given under the sections. Sections 7 and 8 already provide for approvals of surveillance in cases of urgency and for the use of tracking devices respectively. Judicial authorisation is not required. Instead a superior officer of the relevant agency must approve any such action. Under the legislation the officer must operate and determine whether it is necessary to use such instruments based on the criteria for a judge to give authorisation for a non-tracking device. He must then make a written record of the approval granted. It must provide details of the facts pertinent to the approval including such practical details as the type of device used, the subject of surveillance, the duration of the surveillance and any conditions attached. The written record is not intended as the basis on which to grant an approval. The justification for the request and the type of device envisaged will be included in the application for approval. Section 7 would only apply in cases of extreme urgency and in which it would be not operationally practical to apply for a judicial authorisation. I do not believe the additional information proposed by the Deputy is appropriate in this context.
With regard to written records and reports, provision is made in both sections for the superior officer granting the approval to make a report as soon as possible and, in any case, not later than seven days after the surveillance concerned has been completed, in which he or she must specify the grounds on which the approval was granted. This would, by its very nature, include details of any variation sought or granted and such a report must be made by a Garda officer of the rank of at least assistant commissioner, or a similar rank in the other two organisations.
I refer to Deputy Ó Snodaigh's amendments Nos. 19 and 26, which provide that reports made in the case of every approval granted under section 7 or 8 should also be made to the designated judge. The function of the designated judge is to keep under review the operations of sections 4 to 8. The judge may investigate any case in which an authorisation or approval has been granted, varied or renewed and, to this end, has access to all written records of approvals, reports and other relevant documents. I do not believe the requirement whereby a report of every approval granted should be furnished to the designated judge is appropriate nor do I believe it would be operationally efficient. The system for the review and the requirements to provide information to the designated judge, set out in section 13, are based on similar provisions in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. The legislation is based on the 1993 Act because it has been in operation for more than 15 years and the oversight provision is considered efficient and effective.
I refer to Deputy Ó Snodaigh's amendment No. 20, which provides for the deletion of section 8 dealing with tracking devices in its entirety. I further refer to amendment Nos. 21, 22 and 27 which propose to reduce the four month maximum duration provision to three months and to amend section 4(5)(a) which a device considered for use should be the least intrusive means available when making the application for the use of a tracking device.
The effect of amendment No. 20, that is, the deletion of section 8, would be to make the use of tracking devices by the Garda Síochána subject to judicial authorisation rather than the system of approval currently provided for in the Bill. The use of tracking devices is regarded as a less intrusive means of surveillance to other surveillance devices. Tracking devices are defined for the purposes of the Bill as devices which provide information regarding the location of a person, vehicle or thing. In providing for a system of approval rather than authorisation the Bill seeks to achieve a balance between the necessity for fast action in the placing of tracking devices and the provision of an effective regulatory framework for their use. It is subject to oversight as per section 13. Tracking devices monitor the movements of persons, vehicles or things. The opportunity for and timing of their placement is critical if they are to be used successfully. A tracking device can be attached to a package, for example, a suspected drugs shipment as it arrives in port or to a vehicle. In many cases its placement will be required at short notice otherwise the opportunity to prevent or solve a crime can be lost because the vehicle or package will have moved on. As with approval for surveillance in cases of urgency, it is imperative that the Bill provides for an efficient and practical system which can be used by the Garda Síochána and which does not result in unnecessary delay while a court application is being sought. Such a delay might hinder or jeopardise the investigation. As a counter-balance, the Bill provides for a stringent system of control for the use of tracking devices which includes rules on record keeping and reporting where such an approval is given.
In the case of amendments Nos. 21 and 27, I appreciate the Deputy's concerns about the period of four months but if considered necessary, the Minister may, by regulation, and in the interests of the protection of the privacy and other rights of a person and other issues such as the security of the State, be given the means to review that period of four months. We will keep this provision under review. The discussions with the Garda Síochána indicate that a period of four months is not unreasonable for the purpose and use of tracking devices. The use of a tracking device is regarded as a less intrusive means of surveillance than other surveillance devices and therefore it is not appropriate it should be included in the matters to which a superior officer would have regard when considering whether to grant an approval. While I understand some of the sentiments expressed by Members and while I understand the thinking behind Deputy Rabbitte's amendments, that he is trying to assist in suggesting that it be for the purpose of installing or operating, our strong advice is that if we are to restrict it to the issue of installing and operating, it would inadvertently restrict the Garda Síochána in the operation of the devices.
The purpose of my amendment No. 13 is not in any way to restrict the Garda Síochána in carrying out this function. On the contrary, what I have been seeking to do is to make clear for the avoidance of doubt that this particular issue would be protected. I will not press the issue but I am genuinely confused by the Minister's reply. The Minister says he is rejecting the amendment on advice that it would otherwise impede entry by a member of the Garda Síochána, a member of the Revenue Commissioners or a member of the Defence Forces. I find this difficult. It is plain to me that what is being authorised in subsection (7) is a person, accompanied by another person if necessary, to enter, if necessary by the use of reasonable force, any place for the purpose of initiating and carrying out the authorised surveillance. The language used in my amendment is "for the purpose of installing or operating such a surveillance". I do not know if there is a difference in terms of carrying out surveillance as distinct from operating surveillance. I am genuinely puzzled that this is the reason for rejecting the amendment. The British legislation is clear. If the Minister thinks he is secured against challenge on it, in respect of private property or damage to private property, I will take his word for it but I am unable to see what he has explained as being the reason for not accepting my amendment.
The provision "initiating or carrying out the authorised surveillance" is broadly drafted in order to catch every circumstance. If the words, "installing or operating" were to be included, my advice from the Garda Síochána is that this would be somewhat restrictive in operation. I ask the Deputy to agree that the way in which it has been drafted is better from a grammatical and linguistic point of view. The word, "installing" describes a particular action, whereas "initiating" may well be a broader action. I ask the Deputy to accede to my request.
I will do so.
Amendment No. 14 has already been discussed with amendment No. 12.
I move amendment No. 14:
In page 7, between lines 37 and 38, to insert the following:
"(9) Subject to any conditions imposed by the judge under subsection (5), an authorisation shall have effect both within the district court district to which the judge is assigned and in any other part of the State.”.
I move amendment No. 15:
In page 8, between lines 3 and 4, to insert the following:
"(3) The information on oath supporting the application shall include a copy of the written record of approval concerned, a summary of the results of the surveillance carried out and the reasons why varied or continued surveillance is required.".
This amendment is similar to my other amendments. It provides for an additional safeguard. I will not labour the point. The Minister does not as yet seem inclined to take on any of the additional safeguards we have suggested. I ask him to consider this amendment.
The amendment provides that the application to vary or renew an authorisation should be accompanied by a copy of a written record of approval, a summary of the result of the surveillance and the reason continued surveillance is required. However, section 6 deals with applications to vary or renew authorisations granted under section 5. It does not provide for the renewal of approvals granted in emergency situations under section 7 and where a written record of approval is made. Continuation of an approval granted under section 7 is provided for by the authorisation procedure of section 4(4) and the documentation to be provided is specified in that subsection on the basis that it is an authorisation following an emergency approval. Where an application is made for a variation or approval of the existing authorisation under section 6, it will be at the judge's discretion to request such information as he or she considers necessary. In practice the applicant will be obliged to disclose all relevant matters. I do not think this amendment is necessary.
Amendments Nos. 28, 31 and 57 are related and may be discussed together.
I move amendment No. 28:
In page 11, between lines 29 and 30, to insert the following:
"(12) All regulations made pursuant to subsection (11) shall require the prior approval of the Dáil.”.
I have proposed similar amendments to a number of justice Bills. The amendment will give greater scrutiny to the House when making or changing regulations. In a number of places this Bill gives the Minister power to make regulations. Amendments Nos. 28 and 31 seek to make those regulations subject to prior approval by the Dáil.
Amendment No. 57 proposes a more fundamental change to section 16. The amendment would substitute a paragraph so that regulations would not merely be laid before the Houses but would be subject to the prior approval of the relevant Oireachtas committee, currently the Select Committee on Justice, Equality, Defence and Women's Rights.
The amendments would make the Minister more accountable to the Houses of the Oireachtas. Given that the Minister usually has the support of Members on the Government side, this should not present a problem. However, the amendments would allow the House, on a regular basis, to review what is happening and ensure that regulations are proportionate.
There is considerable merit in amendment No. 28, not only for this Bill but for the manner in which the Executive treats the Legislature. In recent years, we have become accustomed to legislation by regulation. The power vested in Ministers has been expanded and developed in a way that was not intended by the Constitution.
This debate is broader than these amendments to the Bill. When a Minister is in office for the best part of 20 years, one can see how the Legislature can become an encumbrance or nuisance. We have legislation by regulation, which is wrong. I hope we will have a broader debate on this issue in the context of Dáil reform and the manner in which this Assembly is treated by the Executive. This is true of all Departments and not only of the Department of Justice, Equality and Law Reform. Regulations are introduced on a weekly basis which never come before the House and whose import is unknown until a problem arises. We then see that there has been no input whatsoever by the Legislature and matters are dealt with by way of Executive diktat and regulation.
This has been commented upon by the courts. Recently, we have seen how the courts are prepared to seek out the intention of the Legislature to determine what is meant by a particular piece of legislation, whether a subsection or section of an Act. The attention of the court is sometimes drawn to the intention of the legislators. This difficulty also applies to guillotined legislation. If Dáil Éireann is silent on a matter, it is difficult to determine what its intention was at any given time. This is what will happen to this and every other Bill passed between now and the end of this session because they will be enacted by way of guillotine and determined in some cases without any debate.
The same is true of regulations. The Minister knows the extent to which regulation is now used, compared to what was the case some decades ago. This is another feature of the arrogance of Ministers and their Departments. They seem to think they can proceed by way of regulation and the Dáil will remain in enforced silence on the matter. This applies to more than just today's legislation. It is a matter which needs to be adverted to in a serious way, perhaps by the Whips.
Deputy Flanagan is talking more broadly about the issue of how we address regulation. The provision in subsection 16(3) is the standard one used for all legislation. It states:
Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it has been made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
Deputy Flanagan claims that regulations are being used more and more. In fact, they are not. As a result of a number of court decisions, more and more Ministers err on the side of caution by introducing primary rather than secondary legislation. I can think of a case in point. Legislation relating to the retention of data will, I hope, soon be published. Originally, it was felt that would be done by regulation and that we had the power to do so. On the advice of the Attorney General, it was felt that we should introduce primary legislation. My experience in the past number of years is the opposite of what Deputy Flanagan says. Ministers are not using secondary legislation more and more. On marine matters, of which I have experience, for decades Governments of every colour used regulations at quick remove.
The courts stopped that.
The courts said regulation should not be used, particularly for serious issues. Government and the Legislature have responded to that.
I cannot accept the amendment. We should proceed on the basis of what we are doing currently in all legislation. In the context of Dáil reform we may find a better way of looking at regulations. Regulations often deal with fairly unimportant issues and facilitate legislation which has already been put in place and which is operating. I would worry that waiting for regulations might impede the implementation of legislation which we have already passed.
The courts would be happy if regulations were subject to some type of oversight and debate in the House rather than simply placed in the Oireachtas Library. The intention is not to delay. The Minister is correct that some of these amendments are not contentious. The amendment seeks to give more powers to the House. There is nothing to prevent a series of these regulations being made, given that a number of provisions in the Bill permit regulations to be made by the Minister. The Minister can schedule all of them together. It is similar to how the European scrutiny committee deals at present with approximately 400 European regulations, directives and so forth. Some of them go through with no major scrutiny by the committee but are agreed on the basis of the advice of the officials and the related documentation. At any stage, however, a member of the committee, or any Member of the House who attends the meeting, can call a halt and seek scrutiny or clarification of the measure. That is the type of system that should be in place given the number of regulations.
The Minister might be correct in terms of the weight of legislation versus regulation but virtually every recent legislative measure from the Department of Justice, Equality and Law Reform that has come before the House has given the Minister power to make regulations. These are important measures. Sometimes the teeth of the legislation can be contained in the regulations that are made afterwards, and we do not have an opportunity to review them in every case. That is the basis for proposing these amendments. It is not an effort to delay the legislation or to prevent the objective of the Bill coming into effect. In fact, the opposite is the case. It is to ensure that the collective wisdom of the House is brought to bear to ensure the best regulations are put in place.
Is the Deputy disposed to withdraw the amendment?
The Minister has indicated he will not accept it. I will withdraw it rather than delay proceedings.
I move amendment No. 29:
In page 11, line 36, after "prosecution" to insert the following:
", Garda Síochána Ombudsman investigation, civil case".
We discussed this amendment on Committee Stage. The amendment is to ensure that any Garda Síochána Ombudsman Commission investigation or civil case is taken into account when making these decisions. I mentioned a case on Committee Stage, which I will not outline in detail now, where the Garda Síochána Complaints Board destroyed all its records despite the fact that there was an outstanding civil case which was dependent on the records. When such a decision is made about material, there should be an effort to ensure that the information is not still required by, for example, the Garda Síochána Ombudsman Commission if it is carrying out an investigation. It is a matter of having a checklist before information is destroyed. There could be a civil case by an individual who has been subject to this type of surveillance and is dependent on the records to prove his or her case. We must ensure the legislation does not hamper justice being done.
Yes, we discussed this on Committee Stage and I brought forward an amendment to subsection (5). The subsection reads, "The Minister may authorise in writing the retention of any of the documents referred to in this section where he or she considers it necessary to do so having regard to .....(d) the interests of justice." That would be the criterion under which the documentation could be retained generally. We had a discussion about the Garda Síochána Ombudsman Commission earlier as to whether it should have surveillance powers. We drafted the provision in line with emerging human rights law internationally and believe it will cater for the situation outlined by the Deputy.
I move amendment No. 30:
In page 12, line 12, after "The" to insert "relevant".
This amendment provides that an authorisation for the retention of documents where it is considered necessary can be made by the relevant Minister rather than the Minister for Justice, Equality and Law Reform. This means, in effect, that Ministers for Justice, Equality and Law Reform, Finance and Defence will make decisions on retention.
I move amendment No. 32:
In page 12, between lines 39 and 40, to insert the following:
"(3) Notwithstanding section 13, the Minister may make regulations respecting the disclosure or non-disclosure, to the person who was its subject or other persons whose interests are materially affected by it, of the existence of an authorisation or an approval under section 7 or 8, provided that any disclosure authorised by such regulations is—
(a) consistent with the purposes for which the authorisation or approval concerned was issued or granted,
(b) consistent with the security of the State, the protection of persons’ privacy and other rights and the aims of preventing and detecting the commission of arrestable offences, and
(c) unlikely to hinder the investigation in the future of such offences.
(4) Any regulation made under subsection (3) may—
(a) require consultation by the Minister, in any particular case of disclosure, with such classes of persons as may be prescribed,
(b) prescribe categories of persons (other than the subjects of the authorisations or approvals) whose interests are materially affected by authorisations or approvals, to whom disclosure is to be made, and
(c) permit the imposition of terms and conditions limiting the extent or detail of disclosure as necessary, having regard to the matters referred to in subsection (3).”.
Section 10 provides for the restriction of disclosure of the existence of authorisations and other documents. The amendment provides for the making of ministerial regulations relating to the disclosure or non-disclosure of the existence of authorisations or approvals to the person who is the subject of the authorisation or approval or to other persons whose interests are materially affected by it in certain specified circumstances. Disclosure would be provided for only where it would be consistent with the purposes for which the authorisation or approval was issued, with the security of the State, with the protection of the person's privacy and other rights and where it would be unlikely to hinder the investigation. Any such regulations may require consultation by the Minister with relevant parties and may set out those categories of persons whose interests may be materially affected by the authorisations or approvals for surveillance. The regulations may also provide for the terms and conditions limiting the extent of disclosure.
This amendment takes account of European Court of Human Rights jurisprudence, which has found that a provision allowing disclosure in at least certain circumstances is required and that it is an important safeguard where an improper use of surveillance might occur. A proposal along these lines was suggested by the Irish Human Rights Commission in its observations on the Bill on the basis that it provides for the balance between the operational needs of the agencies involved in carrying out surveillance and the protection of the rights of the individual.
I commend the amendment to the House.
I understand the reason for the amendment. There are circumstances where such regulations would be not only important but also necessary in the context of certain types of surveillance and the protection of the individual. Is it the Minister's intention to introduce such regulations? It might not be, and this amendment might be no more than window dressing. He said the Minister may at some future date make regulations respecting the disclosure and non-disclosure. Is he in favour of such regulations?
I have no hard and fast views on it. We are providing for the power to do it. Obviously, we must wait and see how the legislation operates. The intention would be there if it was found necessary. There is no ulterior motive. We are providing for the power in the event of it appearing necessary in certain instances.
Amendment No. 35 is related to amendment No. 33. Amendments Nos. 33 and 35 may be discussed together.
I move amendment No. 33:
In page 13, line 11, to delete "applicant" and substitute the following:
"applicant, and any other person whose interests are materially affected by the relevant contravention,".
Section 11 provides for complaints procedures where a person who believes he or she might be the subject of an authorisation can apply to the complaints referee. As currently drafted, section 11(4) allows the referee, following an investigation which concludes that a relevant contravention has taken place, to notify the applicant of that conclusion. This amendment extends the notification procedure to include any other person whose interests are materially affected by the relevant contravention. This ensures that collateral subjects, that is, persons who have been monitored in the course of the surveillance operation directed at another person, will be also notified by the referee where there has been a relevant contravention.
Section 11 also provides for situations where the complaints referee, following an investigation into a complaint, is of the opinion that it would not be in the public interest to inform the applicant that there has been a relevant contravention. It allows the referee to decline to notify the applicant in those circumstances. The amendment provides that, following an investigation which results in the conclusion there has been a relevant contravention, the referee can decline to notify the applicant or the other person of that conclusion if he is of the view that it would not be in the public interest to do so. Again, both amendments take into account European Court of Human Rights jurisprudence in this regard.
Amendments Nos. 34 and 36 are related and may be discussed together.
I move amendment No. 34:
In page 13, to delete lines 28 to 37 and substitute the following:
"(6) In the circumstances referred to in subsection (4), the referee shall
(a) report the matter and any recommendation under subsection 5(b) to—
(i) an Garda Síochána Ombudsman Commission, in the case of a contravention by an Garda Síochána,
(ii) the Ombudsman for Defence Forces, in the case of a contravention by the Defence Forces,
(iii) the Office of the Ombudsman, in the case of a contravention by the Revenue Commissioners, and
(b) report the matter and any recommendation under subsection 5(b) to the judge designated under section 12.”.
This is to ensure that the referee shall, rather than "may", in the case of circumstances referred to in subsection (4), where the referee finds a material contravention, report on this, and shall do so to the relevant bodies. The Bill mentions the Garda Síochána Ombudsman Commission in the case of a contravention by a garda. We have an Ombudsman for the Defence Forces. In this case, if there were to be a contravention by members of the Defence Forces, it should be referred to that person. In the case of a contravention by the Revenue Commissioners, it should be referred to the Office of the Ombudsman. It is the intention that the relevant ombudsmen should be contacted when there is a contravention by a member of the Garda, the Defence Forces or the Revenue Commissioners. The amendment is also to ensure that the referee must — as in "shall" — make the report to those bodies. That is all.
Amendment No. 36 allows for the decision to be appealed to the District Court and gives the public an appeal mechanism which is available at the referee's decision, at a lower rather than a higher level in the courts. As far as I recall, that is the level of the designated judge. This keeps the process accessible to the public.
The Deputy's amendments propose to refer complaints in respect of the Defence Forces and the Revenue Commissioners to the Ombudsman for the Defence Forces and the Office of the Ombudsman, respectively. Concerning complaints made by the public in respect of the Garda, the section already provides that complaints regarding the Garda Síochána are referred by the complaints referee to the Garda Síochána Ombudsman Commission.
However, with regard to the Ombudsman for the Defence Forces, that ombudsman investigates complaints into internal matters by members and former members of the Defence Forces. It does not provide any remit with regard to complaints by members of the public and I do not believe it is the appropriate body in that context for the complaints referee to report to in respect of the Defence Forces.
Similarly, the Office of Ombudsman investigates complaints against administrative actions of Departments. The Ombudsman is empowered to make recommendations only. Her findings are not binding and, therefore, I believe it is more appropriate that any report regarding the Revenue Commissioners should be made to the Minister for Finance.
With regard to the Deputy's proposal to provide for appeals to the District Court, the complaints procedure in the Bill mirrors equivalent provisions in the Interception of Postal Packages and Telecommunications Messages Act 1993. The complaints referee will be the holder of the Office of Complaints Referee, under the interception legislation. In any event, I see no need to provide for a special appeals mechanism against a decision of the complaints referee. The making of an application to the complaints referee does not preclude the applicant from pursuing other legal remedies available.
I move amendment No. 35:
In page 13, to delete line 40 and substitute the following:
"(a) notify, under subsection (4)(a), the applicant or the other person, if any, of a conclusion”.
Amendments Nos. 37 and 47 are related and may be discussed together.
I move amendment No. 37:
In page 14, lines 20 to 21, to delete "The Referee may, on his or her own initiative, also investigate" and substitute the following:
"(11) The Referee—
(a) may, on his or her own initiative, and
(b) shall, where a case has been referred to him or her by the designated judge under section 12(8), investigate”.
Section 11(11) allows the complaints referee to investigate a relevant contravention in respect of the Bill, on his or her own initiative. Section 12 provides for the designation of a High Court judge to provide judicial oversight of the Bill. These amendments allow the designated judge in the course of an investigation under section 12(4) to refer a case for investigation to the complaints referee where he or she is of the opinion that it would be in the interests of justice to do so. They provide that where such a referral is made the referee must investigate the matter. The Bill allows the referee to report a matter to the designated judge. In this amendment, the referral by the designated judge to the referee was suggested by the Irish Human Rights Commission in that body's observations on the Bill. These amendments will build on the safeguards we already have in the Bill.
Amendment No. 38 was already discussed with amendment No. 1.
I move amendment No. 38:
In page 14, lines 27 and 28, to delete all words from and including
"Interception" in line 27 down to and including "1993;" in line 28 and substitute "Act of 1993;".
Amendments Nos. 39 and 40 are related and may be discussed together.
I move amendment No. 39:
In page 14, line 30, to delete "8” and substitute “9”.
This is to extend the appeal mechanism, namely, that the complaints referee shall be able to investigate and adjudicate on section 9 as well as on the other sections as provided for in the Bill. "Relevant contraventions" means a contravention of provisions of sections 4 to 8. It extends the meaning to deal with the retention of materials related to applications and report. Sin an méid.
Section 9 is a technical provision that provides for the retention of materials for three years, or until they are no longer required. I introduced amendments on Committee Stage which we believe will provide additional safeguards with regard to the destruction of this material.
The complaints referee and the designated judge have very specific remits within the legislation outside the core provisions of the Bill, sections 4 to 8, which will provide for a system of authorisation approval governing surveillance. The remit does not extend to a supervisory role with regard to the retention of documents and, therefore, I do not believe it is appropriate. We already have safeguards in the legislation, as amended on Committee Stage.
Amendments Nos. 41 to 45, inclusive, are related and may be discussed together.
I move amendment No. 41:
In page 14, between lines 43 and 44, to insert the following:
"(4) Reports under subsection(3)(b) shall include the following:
(i) the steps taken to keep the operation of the Act under review;
(ii) the number of individual files reviewed;
(iii) the volume of surveillance carried out;
(iv) whether mistakes were made in the carrying out of surveillance (such as the targeting of the wrong individual), the number and nature of these mistakes;
(v) the findings of an evaluation test measuring compliance with European Convention on Human Rights standards; and
(vi) any recommendations for legislative or practice changes that the designated judge considers necessary to safeguard against mistake and ensure full compliance in practice with ECHR standards.".
The changes proposed in amendments Nos. 41 to 45, inclusive, are based on a critique made of the oversight facility and are intended to try to ensure we have the best possible oversight. The Bill draws on the oversight model contained in the Interception of Postal Packages and Telecommunications Messages Act 1993, which I believe to be grossly inadequate. In a critique of that model in the context of an article on data retention, Mr. T. J. McIntyre, a lecturer in law at UCD, and chair of Digital Rights Ireland, stated:
This oversight mechanism has been almost entirely opaque from the outset. The annual reports of the designated judge since that position was created in 1993 have consisted every year of no more than a single line stating that the operation of the Act has been kept under review and its provisions are being complied with.
For example, there has been no discussion of what steps have been taken to keep the operation of the Act under review, whether individual files were reviewed, the volume of surveillance being carried out, whether mistakes were made in carrying out surveillance, such as the targeting of a wrong individual and, if so, what steps were taken to safeguard against such mistakes in future.
Amendment No. 42 seeks to ensure that one can complain to the complaints referee about more than the authorisations under section 7 on urgent cases involving the Garda that are only approvable under section 8. What if one wants to make a complaint about the conduct of the surveillance judicially approved under section 5 or varied thereafter?
Amendments Nos. 43 and 44 have been submitted on the back of the Irish Human Rights Commission's document presented to Deputies and seek to ensure that the report of the designated judge reveals more details. In this way, we would know whether the mechanisms were being overused. A proper facility must be provided in the House to afford us more details than have been suggested to date.
As I am unsure about the recommendation, I will revert on amendment No. 45.
What the Deputy is endeavouring to do in these amendments is to extend the functions of the designated judge under this section. A High Court judge is designated to oversee the operation of the Act's provisions and to make regular reports to the Taoiseach on related matters. To give the judge more powers would confuse the situation. The judge's oversight function is distinct from the function of the complaints referee. Allowing complaints to be made directly to the judge instead of the referee would serve to confuse the separate oversight procedures and lessen the safeguards provided.
The Deputy will note that I am amending the Bill to allow the designated judge to use his or her discretion to refer a matter to the complaints referee for investigation. This proposal was made by the Irish Human Rights Commission, IHRC, in its observations. Our amendment to section 11 will address the types of concern that the Deputy's amendments seek to address.
Regarding amendment No. 44, provision has already been made for the designated judge to have access to information and relevant documents upon request. This is in keeping with the role of the designated judge, which is to provide oversight of the system. The role is not intended to be one of ongoing continuous assessment. Therefore, the existing provisions are sufficient to meet the needs of the designated judge in the performance of his or her function.
Regarding the period in which a report is laid before the Houses, I remind the Deputy that provision is made for the Taoiseach, after consultation with the designated judge, to exclude matters from a report that the Taoiseach considers prejudicial to the security of the State. Sufficient time must be provided to allow proper consideration to be given to this matter. As such, the six-month period before the report is laid before the Houses is appropriate.
Will the Minister's amendment to section 11 place an obligation on the referee to report to the designated judge?
To which amendment is the Deputy referring?
There seems to be a shortcoming in this respect in that the designated judge may make a request for an investigation. Is the Minister stating that the referee will be obliged to communicate?
That is important.
I am not sure about the precedent, but I am curious about the Taoiseach's involvement. Is the lead Minister not the Minister for Justice, Equality and Law Reform, the relevant Ministers — the Ministers for Defence and, where the Revenue Commissioners are concerned, Finance — being the other Ministers in a less leading role? I note the Taoiseach's involvement. Has other legislation involved the Taoiseach in the submission of reports or in liaising with a designated judge? Should the lead Minister not be the one to communicate with the judge if, from time to time, communication was considered desirable? The Taoiseach's involvement is curious. There may be a simple answer, but is this the norm?
Due to the serious nature of the matter and particularly given the fact that three Ministers are involved, it was felt that the designated judge should liaise with the Taoiseach as the overall person with responsibility for the Government and the State's security. This provision elevates the seriousness of what we are doing in this legislation, namely, invasive surveillance of persons and private property. It gives the Taoiseach a key role in the issue's oversight.
I move amendment No. 47:
In page 15, between lines 17 and 18, to insert the following:
"(8) Where the designated judge investigates a case under subsection (4) and is of the opinion that it is in the interests of justice to do so, he or she may refer that case to the Referee for an investigation under section 11(11).”.
I move amendment No. 48:
In page 15, line 21, after "8,” to insert the following:
"including any information or documents obtained as a result of such surveillance,".
This is a technical amendment that makes clear that the word "information" includes information or documents obtained as a result of the surveillance.
I move amendment No. 50:
In page 16, to delete lines 1 and 2 and substitute the following:
""authorised person" means—
(a) a person referred to in section 62(4)(a) of the Garda Síochána Act 2005,
(b) the Minister for Defence,
(c) the Minister for Finance, and
(d) a person the disclosure to whom is—
(i) authorised by the Commissioner of the Garda Síochána, the Chief of Staff of the Defence Forces or a Revenue Commissioner, or
(ii) otherwise authorised by law;".
Authorised persons are currently defined as persons referred to in section 62(4)(a) of the Garda Síochána Act 2005. This amendment expands the list of authorised persons to whom information may be disclosed in order to include the Ministers for Defence and Finance, persons authorised by the Garda Commissioner, the Chief of Staff of the Defence Forces and the Revenue Commissioners.
As indicated on Committee Stage, the amendment also allows disclosure where it is otherwise authorised by law to ensure that the disclosure can also be made to the relevant law enforcement, defence and Revenue personnel or their equivalents in other jurisdictions. This may arise in respect of surveillance conducted in the context of international agreements entered into by the agencies in question.
May I move amendment No. 51 on behalf of Deputy Rabbitte? Perhaps the Minister might respond.
I can supply a response. Is moving the amendment allowable?
It must be formally moved.
May I move it on Deputy Rabbitte's behalf?
No. It must be moved by the Deputy. Unfortunately, it is his prerogative.
It might be recorded that we attempted to give our colleague a dig out.
I would like to allow the amendment, but I am afraid that I am constrained.
I am in the Chair's hands.
Amendments Nos. 52 and 54 are cognate and may be discussed together.
I move amendment No. 52:
In page 16, lines 26 and 27, to delete "are admissible" and substitute "may be admitted as evidence".
In the interests of accuracy on amendment No. 51, we asked the Parliamentary Counsel to look at it but our view was that we should leave the reference.
Amendment No. 52 is a technical amendment that is being made as a consequence of an amendment to section 14(1), which was agreed on Committee Stage.
Amendment No. 55 is related to amendment No. 53 and they may be discussed together by agreement.
I move amendment No. 53:
In page 16, between lines 35 and 36, to insert the following:
"(i) the rights of the community and of the victim (if any) of the crime being investigated;".
By moving this amendment, I am trying to strike a balance with the rights of the community and the victims of crime. We discussed this on Committee Stage and the Minister was of the view that it is adequately provided for as matters stand. I wanted, however, to be clear that where the court has a discretion to allow or exclude evidence, the rights of the defendant must be considered but so must the rights of society and the innocent victim. The Minister said he would consider that idea before Report Stage.
We looked at it and I appreciate what the Deputy wants to achieve here. We must, however, take into account the constitutional rights of citizens, the European Convention on Human Rights and privacy issues. Deputy Noonan rightly stated last night that there is a balance between protecting the rights of the wider community while defending the rights related to the privacy of particular individuals and we believe we have struck the right balance in the Bill. Sections 14(3) and 14(4) set out the criteria a judge must consider in deciding to admit evidence attained in circumstances where there has been an error or omission on the face of an authorisation or approval, or where there has been a failure to comply with a requirement of the authorisation or approval.
The proposed amendment provides that in addition to the criteria listed, the court should also have regard to the rights of the community and the victim, if any, of the crime being investigated when determining if evidence may be admitted. We have considered this amendment in consultation with the Attorney General and we have been advised that the Deputy's proposal would be inappropriate in this context. The court's primary concern in this instance is to decide if the evidence would be of use in the case to be tried. To introduce a third element with regard to the victim's rights at this point might prejudice the outcome and would be inappropriate in that respect.
The court must decide whether the action taken was in good faith and whether it was in the interests of justice to admit the evidence, having regard to certain matters — if the error was serious or merely technical, the nature of any rights infringed, any circumstances of urgency, the possible prejudicial effect of the information concerned and the probative or conclusive value of the information. The presiding judge in the decision on admission of evidence would take into account the rights of the community and the victim of the crime in question.
I move amendment No. 54:
In page 17, lines 3 and 4, to delete "are admissible" and substitute "may be admitted as evidence".
I thank Deputies for their assistance in the passing of this legislation. I thank the Labour Party for giving us the benefit of its previous legislation. This is an important piece of the jigsaw in the fight against crime.
On behalf of Fine Gael, I was pleased to facilitate the passage of this legislation. It was originally a "covert surveillance" Bill but the word "covert" was put to one side since publication.
When the Minister talks about pieces of the jigsaw, however, resources and enforcement are other important components. We can pass all the legislation the Government wants but until the legislation is accompanied by appropriate resources and enforcement practices, there will be a gap in the crack down on criminal gangs and the mayhem they perpetrate.
I agree with the sentiments expressed by the Minister and Deputy Flanagan. I will be glad to see the Bill enacted. The Minister has acknowledged its similarity to the Bill I published on behalf of the Labour Party out of the conviction that intelligence gathering by the Garda Síochána is the best way to deal with this phenomenon that is growing worse. I hope we will see results from the legislative changes we have made in the Bill which will allow material gathered to be admissible in court, hopefully leading to a higher rate of convictions of those serious criminals who are attacking our society.
Deputy Flanagan is right. The Department of Justice, Equality and Law Reform is continuing with the tradition of heavy legislative output, with significant numbers of new laws being enacted when the most important factor is the application of the law and its enforcement. It is no longer easy to point to major lacunae in the law as being the reason that these gangland figures still hold sway in some communities.
Whenever the Garda Síochána (Powers of Surveillance) Bill was published by the Labour Party, I published the Witness Protection Programme (No. 2) Bill to put the witness protection programme on a statutory footing, as was advised by the superior courts. That will hopefully make a contribution whereby some of the more serious gangland figures will be more likely to be put behind bars on the evidence of one of their own gang members. We have not progressed in that regard but I agree it is not a gap in the law generally that means we have such a problem in so many parts of the country. Much of the problem is driven by the drugs trade, which affects my part of Dublin very seriously. The entire west of Dublin is under enormous pressure owing to drug pushing. New gangs are emerging all the time and it is a very serious problem. My sympathy is with the Minister for Justice, Equality and Law Reform in seeking to contain the problem but it must be realised it is doing terrible damage to some of our communities. I hope the Bill we enact today will make a contribution towards better enforcement.
We have done a good day's work. We welcome the Bill despite our concerns. We tried, through our amendments, to have a better Bill. I hope the new powers will be used to good effect to ensure criminals are targeted and brought to justice within the boundaries set out in the legislation and that the legislation will be of benefit to An Garda and society as a whole. We set down in law the powers available to An Garda. I hope the concerns we raised will not prove to have been well founded. If they are, I hope we will deal with any shortfall as quickly as possible.
This Bill could be a useful tool in the fight against crime and, as Deputy Rabbitte stated, particularly in the fight against drug dealers, who seem to operate with impunity in some areas. The powers we have granted to An Garda can be used if the force is properly resourced to tackle major criminal gangs in this city and elsewhere throughout the State.