Before we proceed, I would remind the House that amendments Nos. 7, 8, 29, 30, 31 and 32 are out of order as they do not arise out of Committee Stage proceedings. I would also remind the House that Senators may only speak once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Amendments Nos. 1 and 17 are related and both may be discussed together.
Interception of Postal Packets and Telecommunications Messages (Regulation) Bill, 1992: Report and Final Stages.
I move amendment No. 1:
In page 4, line 1, after "person" to insert "or the ascertainment of the contents of the postal packet without opening it (by electronic means or otherwise)".
This amendment is a repetition of a Committee Stage amendment. We have tabled it again because the Minister promised to come back to us on it. He said he would consider the general principle behind it. Essentially we are trying to make provision for a set of circumstances where, by using appropriate imaging technology, it is possible to ascertain the contents of a letter without opening the envelope. There are many methods of doing that and these methods are used in many areas of life, for example in medicine through imaging, ultra sound, etc., and in criminal investigations. It is possible to see what is going on at the other side of the wall if one uses the appropriate technology. I await the Minister's response and I hope he will accept the idea behind the amendment.
I second the amendment. We must keep up with technology. The Bill should deal with all the possibilities presented by technology with regard to obtaining information through imaging, etc.
As I undertook to do on Committee Stage, I considered this question in the interim. First, amending the definition of "interception" in section 1 of this Bill as proposed in amendment No. 1 would in itself achieve nothing because what the Bill does is to regulate the power of the Minister for Justice to authorise interceptions. It is section 84 of the 1983 Act that contains the prohibition of the opening, etc., of postal packets. Amendment No. 1, therefore, would prohibit nothing.
Even amendment No. 17 to section 84 of the 1983 Act will achieve nothing as far as this Bill is concerned. The amendment could, solely in the context of the 1983 Act, make it an offence to ascertain the contents of a postal package without opening it. That is as far as it would go because of the definition of interception in the Bill.
Paragraph (a) (ii) of the definition limits the meaning of interception for the purposes of the powers of the Minister for Justice under this Bill to interceptions that, apart from a direction by the Minister for Communications to An Post under section 110 of the 1983 Act, would constitute an offence of unlawful interception under that Act.
The way in which the power of the Minister for Communications to issue such a direction is related to the power of the Minister for Justice to issue a warrant for interception is covered in section 3. The effect of paragraph (a) (ii) of the definition of interception is to exclude from the Bill interceptions which would not in any case require a direction by the Minister for Communications and hence a warrant by the Minister for Justice. An example would be the opening of an undeliverable letter.
The effect of what I have just said is that the amendments, as proposed, would be outside the scope of this Bill. The implications of the amendment would be for the 1983 Act and would more properly fall to be considered in that context. For any such amendment to have an effect on this Bill, it would have to be inserted into the 1983 Act in such a way as either to relate to directions by the Minister for Communications or to amend a substantive law as to privacy generally in relation to postal packets. There is no occasion to amend the law in either of those ways.
Finally, interception of a postal packet means more than just opening it. It also means delaying or obtaining the postal packet. The person to whom the warrant is addressed could properly delay or detain a postal packet for a reasonable period if this was necessary in order to comply with the warrant, but anybody else who delayed or detained it would be guilty of an offence under section 84 of the 1983 Act unless the case fell within one of the exceptions provided for in that Act.
It appears that it is possible to scan the contents of a letter using appropriate technology and to be within the law; this appears to be a relatively minor offence. I thought the purpose behind this Bill was to exclude the possibility of that happening. There seems to be a way round what the Bill sets out to do. I wonder if this Bill is a mirage, a Bill by mirrors almost.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 4, line 14, after "of" where it secondly occurs, to insert "the contents or existence of".
This amendment seeks to make illegal the recording of the sequence of telephone numbers which are dialled. While that may not be as good as telephone tapping, if one knows the numbers dialled, it provides very useful information and violates an individuals privacy. We are seeking to outlaw that except in the circumstances provided for in the Bill. It is like having access to somebody's diary. If you know the names and the telephone numbers in a diary or have access to the numbers dialled on a particular phone, they will tell you quite a lot of private information about the individual. It should not be possible to obtain that information under the provisions of this Bill.
I second the amendment.
I said on Committee Stage that this amendment might not be necessary. Having examined it further, I can confirm that it is unnecessary and in any case, as submitted, it would not achieve the desired objective.
Any amendments that may have been necessary to achieve the objectives of the amendment would have to be made not to the definition of "interception" in section 1 of this Bill, but to that of "interception" in section 98 (b) of the 1983 Act as that subsection is to be replaced under section 13 (3) of this Bill.
It is section 98 that creates the offence of unauthorised interception. What the Bill does is regulate the power of the Minister for Justice to authorise interception. Therefore the amendment would prohibit nothing. Indeed, in principle the points made in the debate in regard to amendments Nos. 1 and 17 about the definition of "interception" as it relates to postal packets could also be made on this amendment as it relates to telecommunications.
The amendment refers to two matters: firstly, the contents of a telecommunications message and, secondly the existence of such a message. I will deal with these separately. Take the first, that is, the contents. Under section 98 of the 1983 Act as it is to be amended by section 13 (3) of this Bill, it will be an offence to intercept a telecommunications message and intercept will mean listening to or recording the message "in the course of its transmission" that is to say between the point where the words are spoken by one party to the conversation and the point where they are heard by the other party. The Bill is not concerned with listening in without mechanical means to other people's telephone conversations any more than it is concerned with ordinary eavesdropping on conversations not carried on by telephone.
It is important to bear in mind that the scope of the offence is in any case limited, as I have mentioned. I see no reason to extend the scope, and since the amendment is not related to section 98 of the Act the amendment would not have any effect. Moreover, even if a similar amendment were put down to section 98, this would still make no difference. Both provisions speak of listening to or recording "a telecommunications message". The amendment merely changes this to listening to or recording "the contents of" such a message. This amounts to the same thing, in my opinion.
The other matter to which the amendment relates is the existence of a telecommunications message. What I have just said applies generally to the question of existence also except, of course, that there is no question of listening to its existence. That would be a nonsense. In particular, the offence of recording a message applies only to doing so "in the course of its transmission" in the sense that I have mentioned. The question of recording in other ways the fact that telecommunications messages took place — that is, metering, is dealt with in the new subsection (2) (a) which is to be inserted in section 98 of the 1983 Act by section 13 (2) of this Bill. Metering consists of the use of a device which registers the numbers dialled on a particular telephone and the time and duration of each call. This process is mainly used by Bord Telecom for the purpose of ensuring that subscribers are correctly charged, but the information obtained from it is on occasion disclosed to the Garda to assist them in criminal investigation.
Section 13 (2) puts the disclosure of metering information and any other information relating to the use of the telecommunications service on a statutory basis. In the normal way, to disclose such information will be an offence again very much in keeping with the apparent intent of the amendment. There are exceptions, which are set out in section 13. It will be noted that these include (1) for the prevention or detection of crime or for the purpose of any criminal proceedings and (2) in the interests of the security of the State.
To sum up, therefore, the Postal and Telecommunications Services Act as to be amended by this Bill prohibits the disclosure of a telecommunications message which has been intercepted without authority in the course of its transmission. To go further would be outside the scope of this Bill.
Amendment, by leave, withdrawn.
Amendment No. 6 is consequential on amendment No. 3 and both may be discussed together.
I move amendment No. 3:
In page 4, between lines 23 and 24, to insert:
"or
(c) an act—
(i) that consists of the use of apparatus for wireless telegraphy (within the meaning of the Wireless Telegraphy Acts, 1926 to 1988) or any other device, to record a spoken communication between persons, and
(ii) that, if done otherwise than in pursuance of an authorisation, constitues an offence under section 2A of the Wireless Telegraphy Act, 1926 (inserted by section 2),".
This is another amendment the Minister promised to have a look at. It is a very important amendment. It deals with the bugging of personal conversations and also, to some extent, the recording of telephone conversations without the consent or awareness of one of the people making the call. It is very important that some control should now be introduced in relation to people's capacity to bug conversations. I dwelt on this at some length on Committee Stage. These phenomena seem to occur primarily in the business world where people who are involved in business dealings seem to feel in some circumstances that it is necessary to record conversations. That is done most of the time without the awareness or knowledge of one of the parties.
It is unacceptable that it should be possible for somebody to record a telephone conversation by simply pressing a button. There are people, including myself, who make remarks they would not want taken out of context and perhaps transmitted verbatim. They would not want a recording of their remarks made available to outsiders not involved in the conversation. These remarks are made on the understanding that they will not be recorded. There is quite a sharp difference between this type of activity and an exchange of letters. When people write to one another it is done on the basis that the written word remains. I do not see any problem where conversations are held on the basis that that they are being recorded. Sometimes that happends in the case of press interviews. The journalist asks if one minds if the conversation is recorded. One makes one's comments in the context of the interview being recorded and transcripts being used and so on. Other than that, recording should not be allowed and it is very important that some move should now be made to prohibit it.
I understand that in some of the states of the United States there is a restriction on the recording of telephone conservations using answering machines. I am not quite sure what the situation is in relation to the use of bugging devices. There have been a number of unsavoury incidents in relation to this matter in this country. I do not want to dwell on them at this stage. I also understand that there have been quite a number of these incidents in the business world as well.
I second the amendment. We should have controls in the area of recording conversations. Industrial espionage has now been developed to a fine art. Most people are aware of this but it is not often discussed. There should be some controls over interfering with what most people regard as a private conversation. For a third party to have access to that without the knowledge of one of the persons involved is unacceptable. I support the amendment.
I wish to comment in relation to the unfair advantage some people have in business as a result of using these types of devices. I made the suggestion last week that the fax machine was an efficient way to conduct business. As far as I can ascertain it is practically impossible for a fax machine to be interfered with in any way. The only way I could find was if a camera were to be positioned over a fax machine the messages could be recorded and the information could be transmitted or videotaped and held for future viewing. That augurs well for fax machines. They should be used as much as possible, particularly in the world of business and in relation to matters pertaining to the Stock Exchange where financial deals involving enormous sums of money are transacted on a daily basis.
In order to close off the loopholes in the bugging of information, chief executives could carry on conversations on fax machines without anyone knowing the content of them. They would be relayed at practically the same speed as one would carry on a conversation on one's telephone.
Senator Cassidy has made a very interesting point. He is right to be concerned about the fax machine. As we all know, the fax machine is a marvellous invention and the possession of such a machine is practically a sine qua non for any successful business or professional operator. It has facilitated things we did not envisage when the machine was invented — for example, the Government's programme of decentralisation has been made much easier. It was facilitated by the existence of such devices as the fax machine.
As Senator Cassidy has rightly said, it is not technically possible to extrapolate information from a fax machine unless one had a camera, which would presumably be hidden in the immediate vicinity of the machine. In relation to the installation of that type of device without the consent of the owner of the fax machine, I will deal with that in my reply.
The amendments in the name of Senator Upton replace an amendment on Committee Stage which I undertook to have another look at. While these amendments are more detailed than the Committee Stage amendments, they essentially attempt to achieve the same result, that is, to introduce into this Bill the concept of making it an offence to eavesdrop on people's conversations by means of any type of device, whether or not attached to a telephone.
In so far as the amendments could relate to telephone conversations, the intent of the amendments would be covered in section 98 of the 1983 Act, which prohibits interception of telecommunications. However, the definition of "interception" in that Act is being amended in this Bill to make it clear that "interception" means interception of the message in the course of its transmission and also that interception is not illegal where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording. The Senator was concerned about that matter, but that is the legal position. That this is entirely reasonable is clear when it is considered that section 98 (2) of the 1983 Act allows, for example, for interception by the Garda of a complaint by a person receiving calls of "an obscene, menacing or similar character". This provision would not cover, for example, calls involving fraudulent proposals or false pretences where one of the parties to such calls might wish to have them listened to by the Garda. The revised definition of "interception" closes off that weakness.
Before leaving the subject of devices and telephones, I would mention that under section 98 (4) (a) of the 1983 Act the Minister for Communications may make regulations prohibiting the provision or operation of overhearing facilities in relation to any apparatus connected to the Bord Telecom network otherwise than in accordance with such conditions as he or she considers to be reasonable and prescribes in the regulations. My understanding is that those regulations have not yet been made. Perhaps now would be the time to consider making them.
With regards to other forms of bugs and devices used to monitor conversations, as I said, under no stretch of the imagination could they be classified as postal packets or telecommunications and are, therefore, outside the strict scope of this Bill. However, even if they were within the scope of this Bill I could not undertake to deal with the subject in this Bill as to do so would delay the Bill further to an unacceptable extent. Despite the additional material introduced in these new amendments, they do not by any stretch of the imagination cover all the types of situations that would need to be covered. One would have to set out clearly what type of behaviour it was intended to criminalise. There would be exceptions — for example, to catch a blackmailer. There would have to be provisions relating to who could use such eavesdropping devices and who could not use them; in what circumstances they could be used; their use by the Garda in the investigation of a crime; various definitions and so on. In fact, the subject would warrant a Bill of its own if it were ever decided to tackle it legislatively.
While there is no suitable statute law controlling the use or abuse of bugging devices, the circumstances in which they are used — for example, if trespass were involved, or if the information were used, for example, in blackmail — could give rise to litigation. The constitutional right to privacy with regard to telephone conversations has been dealt with in the Kennedy-Arnold case and it could well be that what the court held in that case could be extrapolated to include intrusions into privacy by means of bugging devices. That could also apply to Senator Cassidy's point about the fax machine. In any event the amendments would be inoperative because, as I explained in relation to amendment No. 2, in order to extend the scope of the meaning of "interception" it would be necessary to amend section 98 of the 1983 Act in the manner described in the debate on amendment No. 2, not section 1 of this Bill.
I could not undertake to include in this Bill any provisions in relation to listening devices which are not included under the general heading of telecommunications. To say that, however, is not to say that there is no need for such legislation and that it will not have to be considered.
I am a little encouraged by the Minister's last few sentences. In the meantime the moral of the story would be: whatever you say, say nothing. I am also reminded of "Washington Behind Closed Doors" when "President Monckton" was dealing with the man who was about to be appointed ambassador to one of those South American countries. They had to go out into a very large park to discuss the finer details of which South American country he would be appointed to. It finally came down to some preference his wife had with regard to the climate.
In relation to the capacity of the Minister for Communications to make regulations about telephone answering machines and so on, the sooner that is done the better, because I understand there are people who hold conversations and if the going is not to their satisfaction they make statements such as "Do you realise that this conversation has been recorded and could be used against you?" Something needs to be done to control this type of activity. As far as this Bill is concerned, what has happened is a lost opportunity.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 4, line 32, after "telegram" to insert "and also includes a message propagated by electro-magnetic radiation including fibre-optics, microwave or radio".
This amendment was one which the Minister said he would consider. It is basically a technical amendment. It deals with differing methods of transmitting messages — electro-magnetic radiation, fibre optics, microwave radio, etc. What we are primarily concerned with here is that some of that technology would not be covered adequately in the Bill. What we were trying to do was to see if our concerns were legitimate when looked at from a technical point of view. I am interested in what the Minister has to say. It is purely a technical amendment.
I second the amendment.
Senator Upton's excellent contributions on Committee Stage gave us a lot of work. As the result of the amendment he put down on Committee Stage, we consulted with the Department of Communications, who in turn consulted with An Bord Telecom. The information we have received is that the matters which Senator Upton wishes to have included are included and, therefore, that the amendment is unnecessary.
Senators will note that the term "telecommunications" is not defined in the Bill. It is described as having the meaning it has in the 1983 Act; however, it is not defined in the 1983 Act either. Senator Upton was quite right to point that out the last day. To get an idea of its meaning one has to go back to the Telegraph Act, 1869, which defines "telegram" as meaning "any message or other communication for transmission by telegraph". The term "telegraph" is defined in the same Act as including any apparatus for transmitting messages or communications by way of electrical signals. That definition is understood to be wide enough to include a system of electrical signals with or without wires. The fact that a particular method of telegraph or telecommunications was not invented, or even contemplated, at the time when the definition was enacted in 1869 does not prevent that method from falling within the terms of the definition, or, in the case of telecommunications, its meaning. This understanding of the meaning of the term "telegraph" is based largely on case law. The fact that "telecommunications" itself is not defined means that the meaning is not restricted in any way. We were afraid to define it in case we would restrict the very wide definition it has been given in court cases which have taken place since the term was first defined statutorily in 1869.
I thank the Minister and the technical staff in the Department of Communications who researched the matter and provided the answer.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 4, line 35, to delete "aged 21 years or over" and substitute "of full age".
This is a minor amendment which seeks to change the definition of a responsible person from "aged 21 years or over" to "of full age". The last day we discussed this Bill I gave the main reasons I am in favour of this change — essentially they relate to the fact that people are granted a vote at 18 years of age and so on. I wonder why an anomaly exists whereby it is necessary for people to be over 21 years of age before the provisions in this part of the Bill apply to them.
I second the amendment. At one stage when one reached the age of 21 one got the key of the door; it was referred to as the age of maturity, but that is now an outdated concept. The "21 years" provision should be amended.
I am curious in relation to the age of 21 years because I understand that the age of majority is now 18 for all purposes. Perhaps the Minister, in his reply, would clarify the position. I clearly understand the tenet and concept of Senator Upton's proposed amendment. I would like to have this matter cleared up because my view is that the age of majority is now 18 years for all purposes, including contractural purposes.
Basically it makes no difference whether the expression "of full age" or "aged 21 years or over" is used. The net effect is more or less the same and whichever term is used it would have no adverse effect on any individual. However, stating the age has advantages and, for that reason, it would not make sense to accept the amendment.
The essential point is that paragraph (a) of the definition of "serious offence" defines the offence and not the person. The reference to 21 years has the merit of making it clear that what is being referred to is an offence which if committed by a 30-year old could, on first conviction, be punishable with imprisonment of five years or more.
The stated age of 21 is not sacrosanct. Any other age over 21 could be specified and it would make the same point. However, while not directly related to the former age of majority, "21 years" has the advantage of being convenient and obvious. It simply refers to a national offender aged 21 years or over.
I also referred on Committee Stage to section 2 (3) of the Age of Majority Act, 1985, which provides that in any statutory provision passed or made before the commencement of that Act, a reference to 21 years of age has the effect as if it were a reference to full age — in other words, 18 years of age. There are exceptions. Among references to 21 years of age not affected is any statutory provision relating to prisons, to St. Patrick's Institution or to any other place for the custody of persons.
Under section 13 of the Criminal Justice Act, 1960, a person aged between 16 and 21 may be sentenced to be detained in St. Patrick's Institution in lieu of a term of imprisonment. To use the term "full age" in our definition could conflict with any future change in the law that may state that 18 or 19-year olds could never be imprisoned. As it is, it leaves out of account the restrictions on imprisonment in the case of young offenders. Therefore, while, as I have said, it is not a major point, the balance of convenience and clarity clearly lies with retaining the phrase "aged 21 years or over". That was also realised in the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, where the definition of "serious offence" means "an offence for which a person aged 21 or over, of full capacity and not previously convicted, may be punished for a term of five years." Nothing has changed since 1987 to warrant a move away from that form of words.
To sum up, whether the phrase "aged 21 years or over" or "of full age" is included in the definition is essentially a drafting point and, where there is no difference to any person whichever formula is used, the balance should lie with the phase which provides for greater clarity as to its meaning. In this case the balance lies with "aged 21 years or over".
I thank the Minister for his very comprehensive reply. This is hardly an issue that is going to set the world on fire. I am happy enough with the Minister's reply and I do not wish to press the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 5, between lines 4 and 5, to insert the following:
"2. — The Wireless Telegraphy Act, 1926 is hereby amended by the insertion of the following:
2A. — A person who uses apparatus for wireless telegraphy or any other device to record a spoken communication between persons shall be guilty of an offence, and shall be liable on summary conviction to a fine of £1,000 or to imprisonment for a term of 12 months or to both such fine and such imprisonment; unless either:
(a) the recording was done with the consent of the parties to the communication; or
(b) no reasonable expectation of privacy attached to the communication; or
(c) the recording was made pursuant to an authorisation under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1992.'.".
Amendment No. 6 seeks to make it an offence to eavesdrop on conversations using various technical devices and so on. I do not want to go through the arguments again as the Minister has dealt with this matter.
Amendment, by leave, withdrawn.
Amendments Nos. 7 and 8 are out of order.
Amendments Nos. 7 and 8 not moved.
I move amendment No. 9:
In page 5, between lines 4 and 5, to insert the following:
"5.—No interception shall be lawful unless carried out under and in accordance with an authorisation under this Act.".
Amendment No. 9 is in many ways the most important amendment to this Bill. Section 84 (1) and (2) of the 1983 Act provides for interceptions to be made under a number of different headings. Some of these are perfectly acceptable, such as interceptions which would have to be carried out for the maintenance of the system and so on, but the section also provides for other interceptions carried out under lawful authority. The difficulty arises because "lawful authority" is not defined in the 1983 Act and I am concerned that the term "lawful authority" could be used as a way of getting around all the provisions of the Bill. Interceptions of telephone messages and so on could be made under the notion of lawful authority as contained in the 1983 Bill.
I would never underestimate the dexterity of certain elements in the system who are very wise — indeed, we are only too familiar with their wisdom as portrayed in "Yes, Minister". We may have created a delightful camouflage in this Bill by providing all sorts of restrictions in terms of who can do what. There is a whole series of procedures to be followed such as ministerial authorisation and so on. In many ways it could all be just a bottle of smoke and may be quite harmless and irrelevant if the lawful authority provision in the 1983 Act provides a way of getting around the provisions of this Bill. That is my main concern.
I anticipate the Minister will reply by saying that what we have specified here is very restrictive. In many ways I accept that but the basic reason the amendment has been put down is to deal with the question of lawful authority which is not defined in the 1983 Act. I wonder whether it would be possible for somebody in the system who wants to intercept phone messages to circumvent all the provisions of this Bill on the basis of the lawful authority clause? I would be very interested in what the Minister has to say by way of reply.
I second the amendment. I consider this to be perhaps one of the most important amendments. The Bill was introduced as a result of concerns expressed about abuses that took place in the past through improper interception of messages. It is important that when introducing legislation we ensure that the loopholes are closed and that there is no means whereby people, by some device, can circumvent the lawful authority.
I would like to hear the Minister's reply as to the interpretation of lawful authority in the 1983 Act, how it is to be defined and whether it would be possible to deal with this matter without infringing on the legislation. To ensure that there is not a repeat of the event that occurred in the past we should conform to the specifics of this legislation. Authorisation should be given purely and simply under the terms of this Bill rather than by some wider and vaguer authority. Privacy is very important and should not be infringed upon except for very good reason and under statutory provision. For those reasons I consider this amendment very important.
This amendment is unnecessary because the 1983 Act clearly sets out the areas of exception. It reminds me of the old Latin maxim inclusion unius, exclusio alterius, which means that if you specifically include one thing you are excluding others. Perhaps this amendment is more applicable to the 1983 Act.
I support the amendment. It would improve the Act by ensuring that it operates in the way that is intended. It would also ensure that there would be no means of getting around the provisions of the legislation.
The contribution of my colleague, Senator O'Donovan, illustrates the value of a classical education. In relation to Senator Costello's query, my understanding is that unauthorised interceptions are unlawful unless they fall within the exceptions set down specifically in the 1983 Act, which is linked to this legislation. I do not know what Senator Neville was talking about when he said that some method had been suggested of getting around the 1983 Act. I did not hear any such suggestion.
I was talking about this Bill.
This amendment was debated on Committee Stage and I felt at the time it was unnecessary but well intentioned. Sections 84 and 98 of the Postal and Telecommunications Services Act, 1983, make it an offence to intercept postal packets and telecommunications messages. Therefore, all such interceptions are unlawful apart from when they are carried out under one of the exceptions referred to in those sections. The principal exception is where the interception is carried out in pursuance of a direction issued by the Minister for Communications under section 110 of the 1983 Act. Under that section one of the directions which the Minister may issue to either An Post or Bord Telecom is "to do (or refrain from doing) anything which he may specify from time to time as necessary in the national interest".
Section 3 of this Bill provides the link between the 1983 Act and this legislation. That section provides that a direction by the Minister for Communications, if it is one requiring an interception, shall be given or remain in force only if and for so long as there is in force an authorisation by the Minister for Justice applying to the interception. Therefore, in the context of interceptions carried out under warrant for the prevention of crime or in the interests of State security, the amendment is unnecessary.
The other exceptions to the prohibition of interceptions in sections 84 and 98 of the 1983 Act include such matters as interception for the purpose of an investigation by a member of the Garda Síochána of obscene or menacing telecommunications messages, but all these exceptions are irrelevant for the purpose of this Bill and of the amendment.
Subparagraph (ii) of paragraph (a) relating to postal packets and paragraph (b) relating to telecommunications messages, in the definitions of interception, restrict the interceptions to which the Bill will apply to those which require a direction by the Minister for Communications and hence an authorisation by the Minister for Justice. Accordingly, the amendment is unnecessary as regards interceptions under authorisation by the Minister for Justice and is irrelevant to other interceptions.
A statement to the effect that interceptions are permitted in the national interest is a very vague statement. There is no definition of lawful activity. There is provision in the 1983 Act for other lawful activity as a basis for interceptions. I still believe that there is a way around this Bill.
Is amendment No. 9 being pressed?
Yes.
Amendment put.
The Seanad divided: Tá, 13; Níl, 26.
Tá
- Costello, Joe.
- Harte, John.
- Hourigan, Richard V.
- Jackman, Mary.
- McDonald, Charlie.
- McMahon, Larry.
- Naughten, Liam.
- Neville, Daniel.
- O'Reilly, Joe.
- Raftery, Tom.
- Ross, Shane P.N.
- Ryan, John.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Cassidy, Donie.
- Conroy, Richard.
- Dardis, John.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Rory.
- Lanigan, Michael.
- McGowan, Paddy.
- McKenna, Tony.
- Mooney, Paschal.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Ryan, Eoin David.
- Wright, G.V.
Tellers: Tá, Senators Upton and Costello; Níl, Senators E. Ryan and Fitzgerald.
Amendment declared lost.
Amendments Nos. 10, 11 and 12 are related and may be discussed together.
I move amendment No. 10:
In page 5, line 5, to delete "Minister" and substitute "High Court".
This amendment provides that the High Court would give the authorisation for the various interceptions. We do not have any great problem Minister giving authorisation for interceptions in the case of criminal investigations. That is reasonable and we have no objection to it. We do not have any real problems with matters that relate to the interest of the security of the State; it is not our ambition to make the State insecure. However, difficulties arise in relation to what the Minister's concept of the interest of the security of the State might be. I understand that this Bill arises from one Minister's concept of what the security of the State was at a certain stage in our history. It is a matter of historical fact which give rise to the concern I am expressing here. I would like to think that a third party would be involved who might not be as potentially biased as a Minister can be in relation to the concept of the security of the State. In that context, it is more appropriate, that these matters should be decided by the High Court rather than by a Minister. This Bill arises out of an abuse of what the concepts of the interests of the security of the State were. It is for those reasons we are moving this amendment.
I second the amendment. To take up the last point made by Senator Upton, this Bill arose out of what might be described as an abuse of power by a previous Minister's interpretation of what was the security of the Cabinet at least, if not the security of the State. The provision in the Bill specifically writes into law that a Minister shall interpret and be responsible for allowing an interception to take place on the grounds of the security of the State. It is similar to what we are describing in the previous amendment. It is very vaguely defined.
There is the national interest, the security of the State and lawful authority. These matters are subject to interpretation and different definitions but they are not specifically defined in the legislation. What might be one Minister's interpretation of security, depending on a perception or paranoia at the time, as we had in the not to distant past, would not necessarily be another's. It is very important that we have an independent third party who will have the opportunity of looking at the reasons for interfering with the individual citizen's privacy, whether it is in the interest of an alleged criminal offence or whether it is within this very woolly concept of the security of the State.
"Security" is a very broad term and it is certainly the broadest of terms in the vocabulary of the Department of Justice. I am experienced in recognising the use of that terminology. It is used to cover a multitude of areas to which it may not be necessarily related and that may not be relevant to the extension of the term. I am concerned that we would not have an independent third party for defining security. This amendment suggests one mechanism, there could be another. We would like the Minister to allay our fears in relation to this section.
I oppose the amendment. The concept of getting the High Court involved in what is basically investigation is an encroachment on the separation of powers concept enshrined in our Constitution. That is a dangerous position. Second, inbuilt in this legislation are very stringent and defined requirements which must be complied with, including the appointment of a complaints referee and the eventual appeal to the High Court if it is deemed necessary. In other words, there are many hurdles to get over before any slip up can be made in relation to this legislation. The Bill clearly sets out very strict, stringent rules that must be complied with before an authorisation is made. To involve the High Court at that stage of the investigation would be imprudent and improper. I think the courts themselves would be loth to get involved.
I agree with the spirit of the amendment which has been put down because of recent experience. As we outlined in great detail on Second Stage, there were concerns with previous Ministers in this area. However, I agree with Senator O'Donovan. I do not think the High Court is the institution to get involved in any investigation as the final arbitrator of justice when evidence is presented to them. I do not think the High Court should be asked to decide whether investigations should take place. They should be separate from investigating any issues. It is a police matter; it is a matter for somebody other than our courts.
As Senator O'Donovan said, we must have regard for the concept of separation of powers. The power to investigate crime and the right to protect the security of the State is very much an executive function. My interpretation of this Bill is that it puts on a statutory basis the practice which exists under which the Minister for Justice may authorise interception of telecommunications messages. It not only puts it on a statutory basis but it controls it and brings in some very new safeguards to restrict in every possible way the exercise of that power by the Minister. The task of deciding whether a communication should be intercepted in particular circumstances or whether the security of the State is endangered is essentially an executive function. It has been regarded as such by every Government since the foundation of the State. The Minister will have the advice and recommendation of a nominated officer of his Department to assist him in making his decision. A judge would not have such assistance.
It would be most undesirable and, in my opinion, unconstitutional to involve the Judiciary directly in secret operations in relation to the investigation of crime or the security of the State. The more logical and reasonable approach is to have the authorisation issued by a member of the Executive and to have the oversight of the system carried out by a member of the Judiciary. This approach is fully in accordance with the relevant articles in the European Convention on Human Rights, as held in the Malone case and other cases. In the Malone case the court held that the tapping of Malone's telephone was in violation of article 8 of the European Convention on Human Rights, in that the interference was not "in accordance with the law". In order to comply with that Convention, the conditions for the authorisation of interceptions should be laid down by law. It is not sufficient that they should be the subject of undertakings by the Executive. That is precisely what we are doing here. We are laying them down in law and controlling them.
The European Council of Human Rights also held in the Malone case that there had been a violation of Article 8 of the Convention in another respect. This was on account of the process known as "metering", which consists of the use of a device which registers the numbers dialled on a particular telephone and the time and duration of each call. This process was designed mainly for the purposes of ensuring that subscribers were correctly charged, investigating complaints and the like; but the Post Office did on occasion provide the police with information obtained from metering when this was necessary for police inquiries in relation to serious crime. The court held that the existence of this practice, unregulated by law, constituted a violation of Article 8 of the European Convention on Human Rights.
There is one other provision in the European Convention on Human Rights, Article 13, that I should mention in this context because it, like Article 8, is directly relevant to the Bill. Article 13 reads as follows:
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before the national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Malone submitted that no remedy was available for the of Article 8 of which he complained and that consequently there had also been a violation of Article 13; but the court held that, having regard to its decision on Article 8, it was not necessary to rule on the issue of Article 13.
The present Bill takes full account of the requirements of the provisions of the Convention on Human Rights. First, it sets out in detail the conditions under which the power of the Minister for Justice to authorise interceptions is to be exercised and it regulates the procedure for the issue of authorisations. As a result, interceptions will be carried out only "in accordance with law", in the sense in which that phrase was interpreted by the court and, of course, only to the extent permitted by Article 8. Second, it ensures that information obtained from metering is not disclosed save as permitted by Article 8. Third, it provides for "an effective remedy before a national authority", as required by Article 13, for a person whose rights under Article 8 are violated.
Amendment No. 11 would give the Minister power to authorise an extension to the period for which an authorisation given by the High Court is in force. It is consequential on amendment No. 10 and is therefore also unacceptable.
Amendment No. 12 does not make sense in the context of amendment No. 10. If, as proposed in amendment No. 12, the High Court was to give the authorisation, how could the Minister consult the High Court before it gave the authoritsation? The purpose of the provision allowing the Minister to consult the designated judge before deciding whether to give or extend a particular authorisation is sensible. He can consult the judge where he is doubtful about a particular authorisation or where, for example, the judge has made some comment in one of his reports, the Minister might want a point clarified. As I said, it is sensible and I see no reason to change it.
Amendment, by leave, withdrawn.
Amendments Nos. 11 and 12 not moved.
I move amendment No. 13:
In page 6, between lines 16 and 17, to insert the following:
"3.— Where an authorisation ceases to be in force, the person whose communications were intercepted under the authorisation shall be informed by the Minister of the fact of the authorisation unless the Minister considers that to do so would jeopardise a criminal investigation or prosecution or the security of the State.".
We had a fairly good discussion on this the last day. There is not a great deal I want to add to what I said the last day except to again point out the general principle behind this amendment. As I understand it, it was suggested in the course of a judgment in a European Human rights case involving a gentleman called Klass in Germany in the last few years. That is the basic reason why we tabled this amendment so that the concepts which are being suggested as worthwhile and suitable for inclusion in legislation by the European Court of Human Rights should be embodied in this Bill. There is a notable contrast between the manner and the degree to which concepts and notions emanating from the European Court of Human Rights are incorporated in law arising from the Department of Health and law which arises from the Department of Justice. That is very clear, particularly in relation to the Mental Treatment Acts and so on which are presently being discussed in the form of a Green or a White Paper.
I second this amendment to allow the Minister to speak.
I oppose this amendment. It is totally unnecessary and would run against the total concept of this Bill. These are interceptions in extreme cases where, for example, the security of the State is at risk. If, for example, in the normal course of investigating a crime, the Garda have somebody under investigation and it goes on for six or eight months and they cannot pin the crime on him, do the Garda then go along and say "Look, we have been following you for the last six or eight months." Once an authorisation has been made, once the proper channels have been gone through, there should be no duty on the Minister to go back to the person whose telephone has been tapped lawfully, and say "Look, this has gone on and we are now ceasing." It would be foolish to include the amendment in the Bill because it would run counter to the thrust of this legislation.
I fully agree with Senator O'Donovan's last point. To do as the amendment suggests would run totally counter to the whole purposes and thrust of the legislation. As I understand it, the basis of the legislation is that nobody has the right to find out whether or not his phone is being tapped, but everybody has a right to find out whether or not there has been a contravention of the Act in his particular case. I would be seriously concerned if this amendment were to be taken on board. I would be seriously concerned that it would create such a weakness in the system of interceptions that the legislation would be made practically inoperative because it would seriously weaken the whole thrust and content of the legislation if such an amendment were to be taken on board. There is no injustice to the person whose communications were intercepted in this way in not readily knowing whether or not there was an authorisation.
The Bill provides the specific remedy of a complaints referee to which any person who feels his phone is being tapped may complain. The complaints referee will investigate the situation. If the authorisation has been given and if the complaints referee finds that the authorisation was proper, then the authorisation will be upheld and nothing will be said. If the complaints referee finds that an authorisation has been given and it not properly given, that there is a and the complaints referee is an obligation not only to report to the person who made the complaint but also to submit a report to the Taoiseach. Among the matters he may do then is to recommend the award of compensation, which will have to be paid by the Minister for Justice. If the referee concludes that there was no contravention of the specified provisions of the Act relating to a relevant authorisation, he will notify the complainant to this effect. In other words, he may find that his phone is being tapped but it is being properly tapped. Then he will notify him, not that his phone is being tapped but that there is no contravention of the Act.
Finally, and this is a very important point also, any authorisation given under this Bill will be given in the knowledge that that authorisation can come under the scrutiny of an independent judicial authority of high standing. That is the surest guarantee that authorisations given under the legislation will, almost invariably now, be proper.
There are one or two points I want to make particularly in response to what Senator O'Donovan said. There is an exclusion clause at the end of this amendment which seeks to provide that the person shall be informed by the Minister of the fact of the authorisation unless the Minister considers that to do so would jeopardise a criminal investigation or prosecution or the security of the State. I cannot see how this would make the criminal investigation and prosecution of criminals inoperative once that exclusion provision is contained there. I do not think the Minister dwelt at all on that aspect of the amendment in the course of his contribution. This amendment arises from an idea which came initially from the European Court of Human Rights.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 6, between lines 21 and 22, to insert the following:
"4.—A person who carries out an interception in accordance with this Act shall not be guilty of an offence under any of the following provisions:
(a) sections 50, 51, 53 and 62 of the Post Office Act, 1908;
(b) section 3 (3) of the Wireless Telegraphy Act, 1926;
(c) sections 37 and 99 of the Act of 1983; or
(d) section 3 (1) of the Broadcasting and Wireless Telegraphy Act, 1988.".
Amendment No. 14 was tabled the last day and we had a considerable discussion on it. During the debate the Minister said that he would come back to the House after he had considered this amendment. It simply seeks to provide protection for people who carry out lawful phone tappings and indeed mail interceptions as well under a variety of Acts — the Post Office Act, 1908, the Wireless Telegraphy Act, 1926 and so on. It is simply tabled to ensure that people who carry out that type of function under those various Acts would not be at risk of being prosecuted in the context of this Bill.
I second the amendment.
I have now had the opportunity since Committee Stage of examining the provisions referred to in the Senator's amendments and I have concluded that the amendment is not really necessary. A person who acts lawfully on foot of a warrant for interception issued by the Minister for Justice could not be charged with any of the specified offences. He is, after all, acting lawfully. However, should he exceed the authority given to him in the warrant, for example, after intercepting a postal packet he then fraudulently retains it, I can see no reason why he should be immune from prosecution which would be the case if the amendment were accepted.
I want to add, for the record, that section 50 of the Post Office Act, 1908 was repealed by the Larceny Act, 1990.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 8, between lines 8 and 9, to insert the following:
"6.—The implementation of an authorisation shall intrude on the communications of the person concerned only to the minimum extent necessary to achieve the object of the authorisation.".
This amendment seeks to provide that the degree of intrusion in the communications of the person concerned in an investigation should be kept to the minimum extent necessary to achieve the objective of the authorisation. I hope the Minister will accept this amendment. I cannot see any difficulty about it. It is fairly straightforward and is a basic commonsense type of an amendment.
I second the amendment.
This amendment, while it is well intentioned, is somewhat aspirational. The Bill is designed in such a way that the substance of the amendment is achieved. For example, and these examples are not exhaustive by any means, a warrant has a duration of only three months, unless extended, when all the original reasons for the authorisation being granted must still exist if it is to be extended. Under section 7, the Commissioner or Army officer can have interceptions stopped before the three months are up where they are no longer required. Also, the designated judge, under section 8 (6), can cause the Minister to cancel an authorisation where he considers it should not have been given or because of circumstances that have arisen since it was given. Section 12 deals exclusively with restrictions of disclosure of the existence of authorisations and of the contents of any communications intercepted.
It is also relevant that interceptions can only be authorised for the purpose of criminal investigation and in the interests of the security of the State. The Minister cannot give an authorisation unless he considers that the conditions specified in sections 4 and 5, and they are pretty specific, stand fulfilled and that there has not been a contravention of section 6 in relation to the proposed interception. These are very stringent requirements which will have the effect of ensuring that the implementation of authorisations will not be intrusive and of course, as with all other aspects of the legislation, the designated judge will be in a position to ascertain that the conditions are being complied with at all times.
Therefore, it is fair to say that the intent behind the amendment is well catered for. I agree with the spirit of the amendment but I think it is catered for in so far as legally and technologically we can cater for it.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 8, between lines 8 and 9, to insert the following:
"7.—For the purpose of ensuring fairness in criminal prosecutions, communications between a person and his or her lawyer which are relevant to any criminal matter or offence in respect of which that person has been, is being or may be investigated or prosecuted, shall not be intercepted by the Garda Síochána; and copies of such communications shall not be made available to any person involved in the investigation or prosecution, and shall be destroyed upon their nature becoming known.".
I understand this principle was suggested in the European Court of Human Rights case, Malone v. the United Kingdom. It is also in accordance with any notions of due processes of law and a right to a fair trial. It is important that the prosecution should not be in a position to have access to client/lawyer conversations. That is fairly well understood at present.
I hope the Minister will be able to agree to this amendment given that the type of principles which are involved are those I have said. It would be quite unfair if it were possible for the State to intercept conversations which were taking place between a lawyer and his client in relation to criminal proceedings. I was always under the impression that those type of conversations were privileged when they took place in the lawyer's chambers or office or wherever else. The moral of this would be for somebody who is involved in a criminal investigation when they are talking to their lawyer to take themselves to his or her office or chambers or wherever they have their meetings, rather than to start ringing them up and discussing these matters over the phone with them.
In seconding the amendment I would like to agree with Senator Upton that we must always protect the confidentiality of a client with his lawyer. I am sure Senator O'Donovan, as a lawyer, will agree with this as well. It has been a bedrock of our criminal justice system that the conversations and communications between the lawyer, the representative in court, and the person charged be totally confidential. This excellent amendment will cover that and I support it.
I oppose this amendment subject to the Minister's reply. In this type of interception, whether by phone or package or whatever, the authorisation, particularly in regard to the phone call will go through Bord Telecom to the Garda. I cannot envisage a situation where the concern of Senator Upton would be justified. I cannot envisage a situation where the Garda will be involved or where the solicitor-client privilege will be broken as there are very strict and confined limitations to the lawful interception envisaged here.
This amendment proposes in a different format an amendment tabled on Committee Stage. I am opposing the amendment for a number of reasons. First, it is unclear in its intentions and in some respects it is unworkable. It is unclear in that it would appear to prohibit the Garda from intercepting communications between a lawyer and another person, but that is in any case prohibited under the 1983 Act. If it is intended to prohibit such communications under warrant, that is not stated; and in any case it is not the Garda Síochána who do the actual interception when a warrant is in force. Also the amendment states that communications between persons and lawyers relevant to any criminal matter or offence in respect of which the person has been, is being or may be investigated or prosecuted shall not be intercepted. How can it be known in advance that these conditions can be complied with?
However, by highlighting inadequacies in the amendment I do not want to give the impression that I would be prepared to accept this intention even if it were technically in order. I would be opposed to granting any category of persons the type of privilege suggested by the amendment. It would be invidious and discriminatory to make exceptions.
If a warrant was issued to intercept the telecommunications of, for example, a suspected subversive or criminal, all his phone calls would be intercepted. It would not be possible to avoid intercepting the irrelevant or even personal calls to his lawyer or otherwise. All irrelevant material would be destroyed. Of course it could be that the apparently innocent call, or even totally innocent call, could give the vital clue for which the Garda are waiting to prevent or solve a crime.
On section 12 of the Bill, which is relevant to the last part of the amendment, the Minister has a statutory duty to limit to the absolute minimum the disclosure of the fact that an authorisation has been given and the contents of any communication intercepted pursuant to such an authorisation. He must also ensure that copies of any such communication are not made to any extent more than necessary and that they are destroyed as soon as their retention is no longer necessary.
Amendment, by leave, withdrawn.
Amendment No. 17 not moved.
An Leas-Chathaoirleach
Amendments Nos. 18, 19, 20 and 21 are all related and all may be discussed together.
I move amendment No. 18:
In page 9, line 9, to delete "President of the High Court" and substitute "Chief Justice".
These amendments relate to the role of judges and so on in the review of the operation of the Act. We suggest that the Chief Justice should be primarily involved in this review process. In addition, consultation with the Minister should not be necessary, nor is it desirable that judges should have to consult with Ministers; there is meant to be a separation between judicial and the legislative functions and so between judges and politicians. The more hands off the relationship is between them, the better.
Amendment No. 21 seeks to give judges some security of tenure. During the last debate on this Bill the Minister spoke of the difficulties which might arise when we suggested that the term of office of judges on this review process should be five years. We have now sought to remove by a restructuring of the amendment those difficulties which the Minister outlined on Committee Stage.
I second the amendment.
There is good reason why a Supreme Court judge should not be appointed to act as the judicial review person or whatever in this legislation. The reason is that there are five Supreme Court judges who will adjudicate on an appeal from the Central Criminal Court on a point of law or otherwise. I remember debating this on Committee Stage. If the President of the High Court decides to appoint one of the High Court judges as the review judge or the person to deal with these aspects, then in essence this judge is being sidelined because he or she would be prohibited from dealing with any criminal case where the knowledge they may acquire as a result of a particular interception might cause a conflict of interest. Consequently, if one were to appoint a Supreme Court judge — and I accept that when this Interpretation Act was first proposed a Supreme Court judge appointment was envisaged — it would mean that a High Court judge might have to step aside in a particular criminal appeal and if a Supreme Court judge had to take the same action in a serious criminal case it would mean that the full Supreme Court would not be entitled to sit. This is a serious reason why this amendment is not feasible in reality.
Senator O'Donovan has anticipated what I have to say. The invariable and desirable practice is that when there is an appeal on a criminal matter from the Court of Criminal Appeal to the Supreme Court, which is the direct chain of appeal in those cases, the full Supreme Court, will hear the appeal. There are circumstances in which three Supreme Court judges can sit as the Supreme Court on appeal, but in criminal cases it is almost invariably five. That has been the practice since the foundation of the State.
Therefore in those circumstances a Supreme Court judge could not be invited to carry out this task. Having regard to the duties which have been imposed on the designated judge under section 8 there could be no question of the judge being invited to act or to take any part in any criminal trial or in any appeal from a criminal trial. That is because the nature of the information concerning persons believed to be criminals or engaging in criminal activities which might come to the notice of the judge.
In the context of the designated judge being a judge of the High Court, it is appropriate that the President of the High Court invite him to undertake the duties specified in section 8. That is because of the duties of the President of the High Court in the allocation of business among High Court judges. I can see no reason, given the nature of the duties that the judge will be taking up, why the President of the High Court should not consult with the Minister. The judge will be designated by the Government after his name is brought forward by the Minister. The President of the High Court only has to consult with the Minister; it will be the decision of the Minister whom to invite. The Minister has no right to overrule the decision of the President of the High Court.
It would be inappropriate to specifically designate a judge for a fixed term such as five years. He will hold office in accordance with the terms of his designation and this could be for a term which is suitable to him. Five years might not suit everybody.
Amendment No. 21 does not make sense in the context of the other three amendments we are discussing which refer to a judge of the Supreme Court. If the judge appointed here were a judge of the Supreme Court the knowledge of the matters which would be investigated pursuant to an authorisation would exclude him from sitting as part of the Supreme Court to which an appeal would we made arising from a criminal court. There are only five Supreme Court judges and we have regarded it as desirable and necessary that, all five Supreme Court judges should sit as the appellate court or Court of Criminal Appeal in criminal cases.
Amendment, by leave, withdrawn.
Amendments Nos. 19 to 21, inclusive, not moved.
I move amendment No. 22:
In page 10, to delete lines 9 to 16.
This amendment proposes to delete a catch-all exemption clause. I will not bother reiterating the arguments which I made the last day, but this type of thinking process is an undesirable part of this Bill and of a series of other Acts as well. In many ways it gives carte blanche to many people to do whatever they like and then to be excluded from various processes of redress. There are similar clauses in the Electoral Act and in other Acts as well.
An Leas-Chathaoirleach
As the amendment has not been seconded, it falls.
Amendment declared lost.
An Leas-Chathaoirleach
Amendments Nos. 23, 24, 25 and 26 are related and may be discussed together.
I move amendment No. 23:
In page 10, line 22, after "Circuit Court," to insert "or, if no such judge is available and willing to serve,".
The central part of this series of amendments is amendment No. 26. The other amendments are relatively minor in terms of their possible impact and significance; they deal with the different types of judges which should review cases and cover the question of the availability of Circuit Court judges. If no Circuit Court judge is available, then a District Court judge should be available.
The nub of the matter is the question of practising barristers being in a position to adjudicate on these cases. I have no objection to practising barristers adjudicating on these cases, but I am concerned about the possibility that the practising barrister may be a member of a political party adjudicating on a matter of considerable political sensitivity. I do not pretend that we do not have political hacks in our own party who are barristers. We have a plentiful supply of them, and a plentiful supply of solicitors as well. If our party were a football team we would probably transfer some of these out and buy in other types of players but that is not relevant to this Bill.
My point is to ask how such an individual could be credible as a referee. A referee should not only be fair but should be seen to be fair and his or her impartiality should be beyond question. One does not find a Cork referee refereering the Munster final between Cork and Limerick and I do not doubt that certain Cork referees if given the job would be perfectly fair. I also do not doubt that there are certain political hacks who are also barristers or solicitors, and who, if asked to adjudicate, would be perfectly fair. The fact that they are known to be hacks takes away a certain amount of credibility from them. People will not accept the decisions of such people regardless of whether they are fair or not and it is highly undesirable that that situation could arise.
It is for those reasons that we are suggesting that the referee may not be a member of a political party or a person who has been a member at any time within the previous five years. That is a minimum requirement to ensure confidence in the judgment of the referee and to make him acceptable to the general public. Any other provision would not make impartiality a reasonable expectation.
It is important not only that a judgment should be fair but that it should be acceptable to people who feel they have been wronged. If somebody feels they have been wronged by a Minister of a political party other than their own, and if the referee of that dispute happens also to be a member of the same political party as the Minister who made the decision, credibility is unacceptably drained. I would apply those principles to our own party no less than to other parties.
An Leas-Chathaoirleach
We are taking amendment No. 23 now but we are discussing amendments Nos. 23, 24, 25 and 26 together.
I second the amendment. The appointment of a referee is an important aspect of this Bill. It is crucial in order to achieve credibility for the procedure that the referee be of the status of a Circuit Court judge or a judge of the District Court. We know from the history of this State that a person otherwise appointed is likely to be a member of a political party or being rewarded for supporting a party. That has been tradition and practice through the years of this State.
Fine Gael have many more of them than we have.
Fine Gael have many more lawyers.
I stated this as a fact. If Senator Honan wants to politicise it——
A few examples would beef up the conversation.
I could name examples; do not draw me out.
It is important that a referee appointed under this section of the Bill should have public credibility. I did not second the first part of the amendment because I want the referee to be of the status of a judge; to appoint a referee of lower status reduces the status and credibility of the position with those for whom they will undertake investigations.
I have no doubt if barristers or solicitors are appointed to this position that it will be as a reward for support of a political party. They will then have to judge whether the decision of a Minister whom they support is fair, honest and objective. I am asking for face credibility on this issue and people accept judges impartiality, no matter what political party they came from. Once judges go on the bench there is an assumption that they make independent and objective judgments. For the sake of status and face credibility this amendment should be accepted.
I oppose the amendment and disagree with the sentiments that have been expressed on it. I am disappointed in Senator Upton, many of whose past arguments I have been in sympathy with. His statement is an example of the way in which Irish people do themselves down and politicians are not an exception. What is needed here is a statement of the flag we sail under. We should be proud to be Labour, Fianna Fáil or Fine Gael politicians and not tolerate this situation in which people declare they have not been a member of a political party for five years; they are entitled to be party supporters for the past 20 or 30 years.
There is a need for transparency and as Senator Neville rightly says, well known supporters and active members of various political parties have been promoted to the bench and thereafter have been regarded as impartial. We would have a healthier political society if we were prepared to declare our political allegiances, have them know and then take on responsibilities as judges have done so well.
I concur with the sentiments expressed by Senator Conroy in this matter. A solicitor of ten years standing can be appointed as a district judge and a solicitor-barrister of 12 years standing can be appointed to the High Court. If that is the case I cannot see why a judge with ten years' experience, whether of the District or Circuit Court, emanating from either branch of the lawyer's profession, cannot act as a referee in this instance. That is an unjustified aspersion on my profession.
Sometimes in this House we hear praise for the Judiciary from all sides and at other times snide remarks are made alleging political hackery. I am aware in my life as a lawyer of three or four appointments in Munster where the person appointed was known to be of a different political persuasion than the appointing Minister. I do not think political appointments are made at the rate at which we are to believe. In this House one cannot praise judges from the Supreme Court down saying they are doing an excellent job, and on another occasion say that some of them are political hacks. Those two descriptions are not compatible.
It should also be borne in mind that for a barrister at junior counsel level with a good practice appointment as a circuit judge is a backward step from a financial point of view. In many instances practising lawyers who could do much better financially on their own have accepted appointments to the High Court and Circuit Court. We have an excellent Judiciary and I refute remarks made occasionally in this House and in the Dáil that judges may be political hacks.
I want to refer to a point Minister O'Dea made in his reply on Committee Stage. A person in public life acquires vast experience — we all come from different professions — by becoming involved in environment debates, finance debates, etc. A public representative such as a Senator, TD or county councillor has a greater diversity of experience than a barrister who has specialised in certain actions such as road traffic accidents and is adept at estimating how much a broken leg is worth or the appropriate compensation for a scar on the face of a 19 year old girl. In that tunnel vision situation there is no opportunity for breadth of experience. However, we must not criticise the legal profession. Public representatives acquire much experience; in my three years in the House I have gained experience in areas other than my own, as I am sure have other Senators. Currently even in large legal practices, with 14 or 15 solicitors, persons tend to specialise. If one brings a conveyancing problem or a case of defamation or libel to a probate expert he will not have a clue because for the last ten or 15 years he has specialised in probate and is probably doing an excellent job as such.
I stand by our Judiciary, who have acquired broad experience from their public offices. In my experience of courts right up to the Supreme Court I have yet to be convinced that political hacks occupy judicial positions.
If this amendment were accepted the position in this country would be as follows: a barrister of 12 years' standing and a member of a political party could be appointed as a member of the Supreme Court but could not be appointed as a complaints referee. There would be nothing to debar a person appointed a member of the Supreme Court from being appointed Chief Justice immediately if there were a vacancy in that office. There is the even more ridiculous possibility that a person of at least 12 years' standing at the Bar who is a member of a political party could be appointed Chief Justice of this country, but yet would not be eligible for appointment as a complaints referee under this legislation.
I find that absolutely incomprehensible. I am not belittling the position of complaints referee or diminishing its function or importance. The referee will be of considerable importance but I do not think referee status should be equated to that of Chief Justice. If a person is not prohibited by membership of a political party from being appointed Chief Justice I cannot see how on a point of logic, equity or justice a person could be debarred from being appointed complaints referee for the purposes of this legislation. The role of the referee will be important. Under the terms of his office he will have similar status to a judge. However, it is a different role. It is one of investigating complaints and would be suited to the categories of persons specified in section 9 (2) (b).
The person who will be appointed to be the complaints referee will be appointed for a term of five years and will then be eligible for reappointment. Therefore it will not be a question of employing a person or a different person every time a complaint is made to investigate that complaint. The person who accepts appointment to the office of referee will have to be prepared to take on a fairly long term commitment. Any time within that period of five years, or maybe longer, he will have to be in a position to carry out an investigation. Of course, it remains to be seen how many investigations will be necessary as that cannot be predicted at present.
Given the long term commitment of the job, it is only right that the Taoiseach be not too restricted in whom he can appoint. It will be important to get the right person with the necessary legal experience who can make the commitment in advance to the job. That person might well be a judge of the Circuit or District Court. All paragraph (b) of subsection (2) does is to give the Taoiseach great options when making the appointment.
I would like to emphasise that the complaints referee should be a suitably qualified person with the necessary experience. The suitable qualification is a legal qualification and the necessary experience would be experience over an extended period as a practising barrister or solicitor. To exclude those categories from the persons who could be appointed a complaints referee would narrow the field to a considerable extent, as would any proposal to exclude circuit and district judges who are persons with the necessary legal qualifications and experience. Indeed the qualifications and experience required for appointment as District and Circuit Court judges are similar to those required for appointment as complaints referee. As I have said, the referee will have the same status as a judge. He will be independent in the exercise of his functions and may be removed from office only for stated mis-behaviour or incapacity on resolutions passed by both Houses of the Oireachtas. In England a tribunal performs the type of functions which it is proposed to give to the referee and it does not seem to have caused any problems or controversy there that the tribunal consists of barristers, solicitors or advocates of at least ten years' standing.
I am happy that the position of complaints referee should be held by a person belonging to one of the categories provided. It is possible that the inclusion of the judges has given rise to a belief that the barrister or solicitor would not have the same status when acting as the referee. Of course, nothing could be further from the truth. I have no doubt that whoever is appointed will carry out his or her duties in a fair and impartial manner and with a level of competence that could only be achieved from the legal qualifications and experience required for the job.
The effect of amendments Nos. 23 and 24 would be that a complaints referee, if not a judge, could be considered by public opinion to be second best, someone who is hardly worthy of the job and who was only appointed because one of those persons who should have been the referee could not and would not accept the appointment. That would be a totally unacceptable situation, as would trying to debar members or former members of fairly recent vintage of political parties from the job of complaints referee. Professional people are often asked by the State to perform particular functions, to accept appointments and to give advice commensurate with their professional qualifications and experience, and it would be deeply offensive to such persons to suggest that that advice etc. would be covered by a particular political leaning or belief. I have no doubt that the complaints referee, whoever he or she might be, will act in a totally professional manner and to attempt to suggest otherwise is to attempt to undermine confidence in the complaints procedure before it even gets started.
Finally, the designated judge will be able to review the operation of the complaints procedure and to report to the Taoiseach on the manner in which complaints were handled either generally or in relation to specific cases. That is the ultimate guarantee that the complaints procedure will be operated in a proper, reasonable and fair manner. As I said, the essential point is the qualification and experience of the person who will apply appointed and those attributes will apply equally to all the persons who could be appointed, whether judge, barrister or solicitor.
An Leas-Chathaoirleach
As it is now 6 p.m., in accordance with the order of the Seanad today I must now put the following question: "That the Bill be received for final consideration, without amendment, and that the Bill do now pass."
Question put.
The Seanad divided: Tá, 24; Níl, 12.
Tá
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Conroy, Richard.
- Dardis, John.
- Doherty, Seán.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Rory.
- Lanigan, Michael.
- McCarthy, Seán.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Donovan, Denis A.
- Ryan, Eoin David.
- Wright, G.V.
Níl
- Hourigan, Richard V.
- Jackman, Mary.
- Kennedy, Patrick.
- McDonald, Charlie.
- McMahon, Larry.
- Naughten, Liam.
- Neville, Daniel.
- O'Reilly, Joe.
- O'Toole, Joe.
- Raftery, Tom.
- Ross, Shane P.N.
- Upton, Pat.
Tellers: Tá, Senators E. Ryan and Fitzgerald; Níl, Senators Neville and McMahon.
Question declared carried.
An Leas-Chathaoirleach
When is it proposed to sit again?
Tomorrow at 10.30 a.m.