I was dealing with the prudent balance in this Bill between the rights of individuals to their privacy and the prevention of serious crime or breach of State security. If one were to analyse the Bill closely the rights of the individual would be well favoured by the pendulum on balance of equity and fairness as against the onus to prevent serious crime or breach of State security. I say this because there is an inbuilt mechanism in the Bill to ensure that any interception is carried out lawfully and for only the most serious and grave reasons in the interest either of State security or the prevention of serious crime — for example, the importation of illegal arms shipments, large consignments of drugs or to prevent the serious crimes of murder, kidnapping, etc.
The Bill also contains two major safeguards, first the continuous review of the operation of the Bill by a High Court judge who will have wideranging powers under section 8 and, second, the appointment of a complaints referee. The referee will also have wideranging powers and will be either a judge of the Circuit or District Court or a solicitor or barrister of at least ten years standing.
There may be a notion abroad that this Bill may easily allow for what we call interception of mail or packages or telephone tapping, but such interception can only be made by a very rigid and strict method. If it is a criminal matter the request of application must come through the Commissioner of the Garda Síochána. He makes the request to a senior official in the Department of Justice nominated for that purpose by the Minister before it is submitted to the Minister for his decision. The Minister obviously has the final decision. Right down the line from the Garda Commissioner, to the senior official nominated in the Department of Justice to the Minister himself, very strict guidelines are laid down and it is only in the hope of detecting a serious crime or in the prevention of a breach of national security that a warrant would be issued. In other words, warrants will not, as a result of the proposed legislation, issue for any frivolous reason. If the interception is for reasons of State security the application may be made either through the Garda Commissioner or a military officer, a colonel or higher rank, designated by the Minister for Defence and the application must be accompanied by a recommendation in writing by the Minister for Defence. The application must also be made in writing and must contain sufficient information to enable the Minister for Justice to determine whether the relevant conditions justifying the issue of a warrant are fulfilled.
This legislation allows for no short cuts or deviations. There are very stringent requirements in the Bill which must be complied with before an interception warrant is signed. It is of particular interest to me to note that this Bill provides that a High Court Judge, an independent official, will ensure that the workings of the Bill are constantly reviewed. The judge will have wideranging powers and his supervision will be both technical and tight, which must be welcomed. The High Court Judge will be appointed by the President of the High Court after consultation with the Minister for Justice. It must not go unnoticed that the High Court Judge, when appointed, will be precluded from being involved in any criminal decision and cannot sit on any criminal trial thereafter. To an extent, by his appointment, that High Court Judge is isolated from further criminal cases, in case he would have heard, learned or received any information which might prejudice a suspect before him.
I have touched on some of the main proposals in this Bill and it is important that some of the major aspects are covered in a more concise manner. The crucial aspect is that the interceptions referred to in the Bill can be authorised only — this is very important — for the purpose of criminal investigations or in the interests of the security of the State. Subsection (2) provides that an authorisation shall be given by warrants signed by the Minister. There is one exception; in the case of exceptional urgency the Minister may give the authorisation orally in the first instance, but it must be followed by a written warrant as soon as possible or practicable thereafter. Obviously, a case where the Minister will give such an oral decision to intercept either a telephone line or mail would be a serious matter that could affect either the security of the State or prevent a serious crime. The Bill ensures that the Minister when giving the authorisation can only do so when all the relevant conditions laid down in section 4 in the case of a warrant for the purpose of criminal investigation and in section 5 in the case of a warrant in the interests of the security of the State, are fulfilled and that there has been no contravention of the requirements of section 6 relating to the procedure for applications or authorisations. It is important that this aspect be noted.
The procedure, as I see it, is that initially a written request comes to the Minister through either the Garda Síochána or, possibly, a colonel in the Army and before the Minister takes a decision a senior official in the Department of Justice analyses the request and ascertains whether it is a suitable request or application for an interception warrant. Having done that, the Minister then has to satisfy himself, as a further element of security, that the warrant, when issued, is for serious and urgent requirements. It should also be noted when a warrant is issued that the natural life of this warrant is three months. However, under this Bill the Minister may extend the duration for a further period not exceeding three months, but the same conditions which applied to the issue of the authorisation will also apply to the extension.
The investigation must relate to a serious offence and the definition in the Minister's speech, and in the Bill, is that it must be one for which an adult would be liable to a term of imprisonment of at least five years, if convicted, in other words, if it involved loss of life, serious personal injury or serious loss or damage to property, etc. I envisage, apart from a subversive threat to the State, that in the case of arson, where a life is threatened, kidnapping, abduction of a child or something of that nature, the provisions in the Bill will be brought into play only for the most valid reasons and interfering with a telephone line or intercepting a mail package would be the responsibility of the Garda or the telecommunications section of the appropriate Department.
Apart from the Garda, I also envisage the involvement of the Army, possibly Customs and Excise officials — in cases where the importation of drugs is suspected — or, Navy personnel, with "the investigation of offences ... concerning a serious offence or a suspected serious offence" or the security of the State. The Minister has an obligation to look at all aspects of the request before he issues a warrant. It is also important to note that apart from that procedure — and this is very important — the High Court Judge, when appointed, will have full rights of access to any files should he so desire. He may review the operation of this legislation every six months or every year; he may decide to look at a case or at a plethora of cases and ask questions, see the files and ensure that the warrant, when issued, is necessary and has been issued only after the stringent regulations in this Bill are fully complied with.
Section 7 of the Bill deals with the procedure for terminating interceptions when they are no longer required. If the Garda Síochána or the military officer designated under section 6 considers that interceptions are no longer required, he will have a legal duty under this legislation to inform, without delay, the nominated officer of the Minister for Justice who, in turn, has a duty to inform the Minister of the position. The Minister has a duty to terminate such an interception forthwith.
Section 8 of the Bill deals with the appointment of the High Court Judge. If the judge investigates a particular case, he is obliged to make his report available to both Houses of the Oireachtas. Such a power will mean that this information will be made public, except it involves a breach of security, and there are provisions where some of this can be eliminated. By and large, the investigation by the High Court Judge and his report will be laid before both Houses of the Oireachtas.
It is important to emphasise the position of the complaints referee. He will have power to investigate a relevant authorisation, and to ensure that the original authorisation or warrant is valid, is properly obtained and will report back to the person who has complained to him. The referee will also have power to notify the applicant in writing of his conclusion, make a report of his findings to the Taoiseach and, if he thinks fit, to quash the authorisation and direct the destruction of any copy of any communications intercepted. This is another independent method by which an independent referee can ensure that there will be no breach of these regulations; it is another safeguard in this very precise and concise legislation.
This legislation must be broadly welcomed. It brings a statutory format to an ongoing situation where — and hopefully this Bill will become law in the not too distant future — we will have a statutory system which takes cognisance of the High Court and Supreme Court decisions. It has also taken cognisance of the well known case of Malonev. The Crown where as a result I understand of a criminal case being taken by Malone the police in England let it slip that there was an unlawful tap on his telephone. The upshot was that Malone took this case to the European Court of Human Rights and the long awaited decision of the European Court and the recommendations under what we now know as the Malone case have been taken into account by this Bill. This is very important. The court held that the tapping of Malone's telephone was in violation of Article 8 of the European Convention on Human Rights. I am of the view, and I think the Minister covered this point in his speech, that not alone did the current Department, the Ministers concerned and their staff deal with the Malone case, they went further because if we look closely at the provisions in the European Convention on Human Rights vis-a-vis the current proposed legislation, it is clear we have a much more tightly knit scene. In other words, we have built into this legislation better safeguards than were envisaged by the High Court, the Supreme Court or the European Court of Human Rights. This is welcome. Although it took the last three or four years for the Government to prepare this legislation, the wait was worthwhile having regard to the eventual outcome of this very technical, concise and rigid legislation that tries in a very prudent and sensible fashion to balance the rights of an individual and the rights of privacy against the duty of the Garda or the Army to protect citizens against any serious crime being committed or any security breach as far as the State is concerned.
I welcome this Bill and trust that it will get a speedy passage through this House.