I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy John Curran.
SECTION 1.
Criminal Justice (Surveillance) Bill 2009: Committee and Remaining Stages.
I move amendment No. 1:
In page 4, line 31, after "of" to insert "chief".
As the Minister of State will know, we on this side of the House support this Bill but our intention with this amendment and others is to ensure the legislation is immune from challenge. As there is an interference with the right to privacy, it is all the more important the Bill should be drafted in such a way as to minimise the possibility of challenge and there should be adequate safeguards in place to ensure that is the case. That is required under the provisions of Article 8 of the Convention of Human Rights whose criteria are reflected in our law.
This amendment provides that under the definition of superior officer it would not be merely a "member" of the Garda Síochána but a chief superintendent who would grant the authorisation. Nobody below the rank of chief superintendent could do so. The amendment was drafted as a constructive suggestion to enhance the legitimacy of the interference with the right to privacy which is central to this Bill.
I thank Senator Regan for his comments today and on Second Stage, and for broadly supporting this legislation. The definition of superior officer in context, as currently drafted, provides for the person to be a member of the rank of at least superintendent in the case of the Garda Síochána. To clarify this for the Senator, it is not merely a "member" of the Garda Síochána. The legislation, as drafted, is——
Yes, I see that. The rank stated is of superintendent.
The Bill governs the use of surveillance, not only by the Garda Síochána but also by members of the Defence Forces and officers of the Revenue Commissioners. It is intended in the Bill that members of an equivalent level of authority in each of these State agencies would apply to the court for authorisations to carry out surveillance and to grant approvals both in cases of urgency and for the use of tracking devices. Although in some cases a member of the rank of superintendent may be directly involved in the surveillance operation, it is envisaged that another member of the force would be designated to undertake the surveillance by the superintendent to whom the authorisation is issued or who grants the approval.
I do not believe it is necessary or appropriate in the case of the Garda Síochána to provide that it must be an officer of a higher rank who makes an application or grants an approval, nor do I think that is practical. It is my view that the competence and experience which attaches to the rank of Garda superintendent means that this is an appropriate grade for it and is an equivalence to the rank and grade in the Defence Forces and the Revenue Commissioners of colonel and principal officer, respectively, who deal with authorisations and approvals. I believe that a Garda superintendent is of a sufficiently high authority to undertake this role, while at the same time being sufficiently close to the operational side of the work of preventing, detecting and investigating a crime, and for that reason I do not propose to accept this amendment.
I thank the Leas-Chathaoirleach for allowing me to speak and I apologise for not speaking earlier on the Bill. I support Senator Regan's amendment. I heard the Minister of State's reply but, given the level of power we grant to superior officers in sections 7 and 8 of this Bill, it is critical we ensure there is a sufficient level of safeguard present to ensure there is no abuse of the power of surveillance.
As I stated on Second Stage, I broadly welcome the Bill. Section 3, in particular, sets out a very important principle to which we shall come. However, it is vital to ensure we do not create powers that are so wide they may be abused. We can all think of instances where covert surveillance powers used by the State might be abused. Senator Regan's amendment would ensure an extra level of safeguard would be in place in that it would require a chief superintendent rather than a superintendent to authorise the placing of tracking devices under section 8 or, in circumstances of urgency, to authorise surveillance under section 7. That is particularly important.
We have seen a great deal of case law emerging on search warrant provisions and provisions in different pieces of legislation that allow searches to be carried out and search warrants to be issued, usually by a chief superintendent. There have been a large number of challenges on the basis of the exercise of these powers by superior officers in the Garda. We must be wary about allowing too broad a power to superior officers in this legislation. I absolutely support Senator Regan's amendment and believe it would strengthen the Bill, as my amendments seek to do at a later stage.
I thank Senator Bacik for her support for this legislation. I considered the matter but was conscious of the balance to be struck in what is practical and achievable. On the advice available, I believe the rank of superintendent has sufficient capacity and authority and, therefore, I will not accept the amendment.
I apologise for trespassing again. I wish to make one specific point to the Minister of State that I raised on Second Stage. I mentioned we already have powers to issue search warrants and have provided for superior officers in certain legislation, in respect of urgent circumstances, and so on. It is interesting that in 2006 the Criminal Justice Bill, as it then was, in what I believe was its original 2004 format, sought in its section 5 to extend a general power to Garda superintendents to issue search warrants in respect of all arrestable offences. There was a good deal of outcry about extending that general power, not only in the context of specific offences such as drug trafficking or offences against the State, but, as this Bill would do, to all arrestable offences.
Regarding section 5, I checked extensively through the Dáil debates and, as far as I can see, this provision was withdrawn by the Minister on Report Stage in 2006. The final version of the Criminal Justice Act 2006 does not allow for the issuing by Garda superintendents of search warrants. I am concerned that in that context perhaps we are giving too much power to Garda superintendents in this legislation. There is not only the power to have surveillance going on, about which arguments have been made in respect of breach of the right to privacy, but also the power to authorise entry to homes, which particularly concerns me. "Place" in the Bill includes a dwelling and thereby allows the power to authorise entry to people's homes in order to place or withdraw tracking or surveillance devices. That is an extremely powerful weapon, as one might term it, in the armoury of State investigation of potential offences. I urge that we be cautious and ensure there are sufficient safeguards in place and that the inviolability of citizens' dwellings will not be unduly breached, particularly under sections 7 and 8 where no judicial authorisation is required. This is also Senator Regan's concern, in that superintendents should not have too broad a power where there is no judicial authorisation. In light of the withdrawal by a former Minister of the proposed section 5 of what is now the Criminal Justice Act 2006, why is such a broad power for superintendents included in this Bill?
I am advised that, from an operational and practical point of view, the rank of Garda superintendent is appropriate and would have sufficient authority. We should not consider the matter in isolation. Apart from the person making the application, a number of other checks and balances exist throughout. The superior officer making the application must have reasonable grounds and so forth in the reporting and all that goes with it. My advice is that the rank of Garda superintendent is appropriate and practical from an operational point of view. Considering the operation of the provision, decisions and access are sometimes important, as decisions may need to be made in relatively short periods.
Amendment put and declared lost.
Section 1 agreed to.
Section 2 agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
As I stated on Second Stage, I support the prohibition on carrying out surveillance except in accordance with a valid authorisation or an approval. This is an important cornerstone of the Bill and is one of the reasons for which the legislation has received a broad welcome from civil liberties groups. It states that surveillance shall only be carried out in accordance with the procedures set out in the Bill. I do not want to be on record as only objecting to aspects of the Bill. I welcome this provision, since it sets out in a concise way a statutory framework for the carrying out of covert surveillance.
Question put and agreed to.
SECTION 4.
I move amendment No. 2:
In page 6, subsection (1)(b), line 11, after “or” to insert the following:
"to investigate and/or gather intelligence on gangland crime, or".
This section sets out the Bill's purpose. The background to this and other legislation that we are considering this week is that gangland crime is out of control and that the Government is not succeeding with current resources, legislative or otherwise, in resolving or minimising the carnage being created by criminal gangs in different communities.
The phrase "for the purpose of preventing the commission of arrestable offences" is quite specific in its intent, although I appreciate it does not refer to a specific arrestable offence. My amendment suggests that there is a logic in having available covert surveillance of the type envisaged in the Bill to investigate and-or gather intelligence on gangland crime in general so that the information is available to the Garda Síochána, providing it with better understanding, knowledge and expertise in tackling the problem, which is broader than specific offences. It is a systems failure in the law and order regime that we try to ensure exists in society. Therefore, there is a logic in broadening the purpose of the Bill and scope of the authority that it provides to conduct this type of investigative and intelligence gathering exercise.
This amendment might be justified. Given the provisions on judicial and police co-operation with other EU member states, such an amendment might be necessary to allow our authorities to co-operate with other member states in carrying out covert surveillance when requested. This matter is provided for in the Schengen Information System II, to which we will become participants. I propose my amendment against this background.
I agree with Senator Regan, in that a specific purpose of this kind would be useful, particularly as the legislation is being introduced with the express purpose of dealing with organised crime. I told the Senator that I am not sure about whether the word "gangland" is the most appropriate for use in criminal legislation. We all know what it means, but it has a tabloid or, unfortunately, sensationalising effect, despite the grubby and sordid nature of the crime, which has led to dreadful and tragic deaths. A specific purpose to investigate and-or gather intelligence on organised crime, a better way of putting it, would be useful because this is the political reason for the legislation's introduction.
The practice in the Criminal Justice Acts 2006 and 2007 of using valid and justified concerns about organised crime to widen nets is unfortunate, as laws that have changed criminal procedures for all types of offence have been introduced. Under this Bill, arrestable offences are not confined to organised or gang crime only. The criminal courts are showing flaws in the 2006 and 2007 legislation. We must be cautious about the scope of legislation such as this Bill being overly broad. In terms of gangland or organised crime, a more specific purpose would be helpful for the Garda, since investigating and-or gathering intelligence on that type of crime is what the Bill was meant to be concerned with.
Section 4 provides the circumstances under which an authorisation may be sought. Subsection 1 deals with applications made by members of An Garda Síochána. The applicant must have reasonable grounds for believing that the surveillance is necessary for obtaining information about the commission of an arrestable offence, for the prevention of arrestable offences or for maintaining the security of the State. The Bill provides for a member of An Garda Síochána to apply for an authorisation for surveillance with respect to the investigation or prevention of arrestable offences. This sufficiently captures the gangland crime-type offences mentioned. For this reason, I do not propose to accept the amendment.
Amendment put and declared lost.
Question proposed: "That section 4 stand part of the Bill."
Broad purposes are provided in section 4(1). It is a critical section because it provides for the application for authorisation to a judge. The purpose for which the application may be made is broad, namely, "as part of an operation or investigation being conducted by the Garda Síochána concerning an arrestable offence" or "preventing the commission of arrestable offences".
I wish to address the broader purpose outlined in section 4(1)(c) on surveillance being sought to be authorised, namely, “maintaining the security of the State”. This is also provided for under section 4(2) in respect of superior officers in the Defence Forces. I wish to put on record the necessity of ensuring judicial authorisation where such a sensitive purpose is cited as the reason for seeking authorisation for surveillance devices. We are all familiar with the history of the use of political bugging, and not just in this country. In the well known Kennedy case, the right to privacy was discussed by the courts in the context of bugging. In Britain it became public knowledge, after the event, that a good deal of bugging had been carried out on persons who were simply involved in legitimate civic protests. The bugging was authorised under the very vague heading of “maintaining the security of the state”. I am not arguing against it but simply saying I am glad judicial approval is necessary under section 4, particularly where that purpose is cited. This is why I have tabled amendments to sections 7 and 8. It is partly because it is rather dangerous to grant the power to a superior officer in the Garda or Defence Forces for the aforesaid purpose without there being very tight safeguards in place.
Question put and agreed to.
SECTION 5.
I move amendment No. 3:
In page 7, subsection (4), line 21, to delete "privilege" and substitute the following:
"legal professional privilege or any other privilege recognised by law".
This is an issue of language. Section 5(4) states, "The judge shall not issue an authorisation if he or she is satisfied that the surveillance being sought to be authorised is likely to relate primarily to communications protected by privilege". This should be more specific, particularly in regard to legal professional privilege. That is the essential intent of the Bill. It would be preferable to state "legal professional privilege or any other privilege recognised by law". I have followed the argument of the Minister of State on this issue. It has been indicated in the Lower House that what I propose is what was intended. The framing of the provision as I suggest would be preferable.
While the use of the term "privilege" generally refers to legal professional privilege, there are other types recognised by law, for example, discussions at Cabinet and sacerdotal privilege. The current wording incorporates all forms of privilege recognised by law. While I appreciate the Senator's motives, I do not believe his amendment is necessary and I do not propose to accept it.
Amendment put and declared lost.
I move amendment No. 4:
In page 7, subsection (7), line 38, after "place" to insert "and to interfere with that place".
Whenever this type of legislation is challenged, it will be done forensically. It is vital that this provision be carefully crafted. Section 5(7) states: "An authorisation may authorise the superior officer named in it, or any member of the Garda Síochána . . . accompanied by any other person whom he or she considers necessary, to enter, if necessary by the use of reasonable force, any place ["any place" is defined as a dwelling, building, vessel etc.] for the purposes of initiating or carrying out the authorised surveillance, and withdrawing the authorised surveillance device, without the consent of a person who owns or is in charge of the place". While one is authorised to enter the place "for the purposes of initiating or carrying out the authorised surveillance, and withdrawing the authorised surveillance device, without the consent of a person who owns or is in charge of the place", is a refinement of the language required to cover both entry to the place and the interference therewith in the placing of bugging equipment or whatever equipment is required to carry out surveillance? Is there wording missing? My amendment gives authorisation to enter a place for the purpose of surveillance and to interfere with that place – essentially a property – for the purpose of installing surveillance equipment.
I support the amendment. Senator Regan has identified a real problem with the provision. As I stated, section 5(7) is very important because it is the one that authorises entry to a place, including a dwelling. To put it bluntly, it allows the State to bug people's homes. Doing so is subject to judicial authorisation in the context of sections 4 and 5. Very well-developed case law on search warrants, which is the only real parallel we have in this jurisdiction, demonstrates the courts have applied the law on search warrants to ensure minimal interference with the right of citizens to the inviolability of their dwelling in the carrying out of any search.
I declare an interest in that I am a practising criminal lawyer who has represented people who have been subjected to Garda searches. Such searches can involve large numbers of gardaí and can be extremely intimidating to people in the home, particularly if there are children present. The courts, in recognising the encroachments on people's rights and liberties that searches involve, have ensured very strong judicial supervision of the way searches are carried out.
Section 5(7) is very vaguely drafted in terms of what it allows officers of the State to do on entry to a home. One assumes that because they want to place a covert surveillance device, they will not do so when people are in the home. The procedure will be different to the application of search warrant powers in that, quite often, search warrants are used to search homes when people are present. I presume the real application of this subsection would involve gardaí entering a home when somebody is absent therefrom in order to place a device covertly and exiting without leaving any sign of their having been there. In this were not the objective, the very purpose of the provision would be undermined.
There is nothing in the subsection that guides gardaí on the entry to a premises. It does not determine how long they may stay or the interference allowed. Senator Regan's amendment is the minimum that is required. I am trying to anticipate case law that might arise in connection with circumstances where gardaí stay in a home for a certain period and where there is more than minimal interference with the home in the placing or withdrawal of surveillance devices. Is there a requirement for a code of practice? If it is not in the legislation, there should be more detail on what officers of the Garda, Defence Forces and Revenue Commissioners are authorised to do while in a premises.
Subsection (6) provides that a judge may impose conditions and that the authorisation must specify "particulars of the surveillance device that is authorised to be used" and "the conditions (if any) subject to which the authorisation is issued". At the commencement of the application of this legislation, a judge might be rather unclear as to the sorts of conditions he could impose. He would very much be guided by what the Garda says about how surveillance devices may be placed. It may be difficult for judges to have adequate levels of supervision over the placing and withdrawal of devices if they are not given clearer guidance on what they may authorise. This amendment is designed to strengthen rather than undermine the legislation.
Section 5(7) already provides that an authorisation or approval may authorise a member of the Garda Síochána, the Defence Forces or the Revenue Commissioners to enter any place if necessary by use of reasonable force for the purpose of initiating or carrying out surveillance and withdrawing a surveillance device without the consent of a person who owns it or is in charge of the place. The Senator's proposal provides that the authorisation provision would also authorise interference with that place. The present text is broadly drafted and deliberately wide to encompass all the different ways in which surveillance may be initiated and carried out.
The definition of place in the interpretation section is also broadly drafted as the Senator rightly pointed out. I believe it already encompasses the Senator's concerns. We cannot consider one section in isolation and Senator Bacik rightly went on to acknowledge that a judge already has discretion under the Bill to attach conditions to the authorisation. The procedure governing the right of entry into a place and the initiation of surveillance in whatever format would be subject to any conditions considered appropriate by the judicial authority in respect of the surveillance and for that reason I do not propose to accept the amendment.
The Minister of State is being very polite in his rejection of all these amendments, including this one and presumably those that are yet to be discussed. He should, however, reflect on the suggestions from this side of the House. We support the Bill and are trying to be constructive. Some reflection on this and other amendments is warranted. I invite the Minster of State to consider this type of amendment which is designed very specifically to improve and strengthen the Bill. On the basis of that reflection the Minister of State could introduce amendments on Report Stage.
Amendment put and declared lost.
Section 5 agreed to.
Section 6 agreed to.
SECTION 7.
I move amendment No. 5:
In page 9, subsection (8), line 26, after "granted." to insert the following:
"Where the surveillance is to be carried out at or in a private dwelling, it shall not be carried out for more than 24 hours from the time at which the approval is granted.".
It might be helpful if I address amendments Nos. 6 and 7 with this amendment because they are all related and amendments Nos. 6 and 7 are already grouped together.
Is that agreed? Agreed.
Sections 4 and 5 provide for judicial authorisation for surveillance which we have all welcomed with the statutory framework and the criteria and so on, albeit that some of us on this side of the House think the criteria could be tighter and judges given more guidance on granting authorisations. My concerns, however, are strongest in respect of sections 7 and 8 because these provide for surveillance and tracking devices to be placed without judicial authorisation but instead by the superior officers of the Garda, Defence Forces or the Revenue Commissioners. Section 7 at least provides that this can be done only in urgent cases and section 7(2) provides three criteria for urgency which is important. It is also important to note there is a time limit of 72 hours from the time when approval is granted under subsection (8). There is a distinction between this sort of approval for surveillance and the sort of authorisation a judge can grant under sections 4 and 5.
I did not table an amendment on subsection (2) but I do have a slight concern about it. The first two criteria of urgency are straightforward and we are familiar with them from the bail laws, that a person might abscond for the purpose of avoiding justice or would commit an arrestable offence or where information is likely to be destroyed. Those are very clear and logical cases for urgency. I have some concern, however, about the broadness of the third condition under subsection (2)(c) where “the security of the State would be likely to be compromised”, particularly because this applies also to officers of the Revenue Commissioners even though under section 4(3) State security is excluded as a ground on which a Revenue officer can apply for authorisation. That seems to be beyond the function of Revenue officers. It would be highly unlikely in practice that a senior Revenue officer would be issuing authorisation in a case of urgency under section 7 because he or she felt the security of the State was likely to be compromised. Is it an oversight that subsection (2) gives them this power?
Amendment No. 5 is designed to create another level of safeguard and to insert a new clause into subsection (8). It is important the time period is shorter where a judicial authorisation is granted. I am concerned that "place" here includes dwelling place and I do not see why 72 hours is needed where a dwelling place is concerned. I have proposed an amendment to the effect that where the surveillance is to be carried out at or in a private dwelling, it shall not be carried out for more than 24 hours from the time when the approval is granted. My rationale is that it would always be possible in practice to get a judge within 24 hours. I can accept there are circumstances in which a superior officer or a superintendent might have to grant the authorisation urgently in respect of private homes. I am not saying they cannot do it but that a more confined time limit should apply where the surveillance is to be carried out in a private home.
Section 7 allows superior officers to authorise the entry into private homes for the placing of covert devices and for continuing covert surveillance for 72 hours which is quite a long time in people's private lives and homes. My amendments Nos. 6 and 7 give effect to that. I apologise for the typographical error there because the phrase should read "or as the case may be 24 hours". That is to give effect to amendment No. 5 and provide for it in subsection (10). I would be grateful for the Minister of State's considered view of the proposal to have some more confined provision in section 7 where the private dwelling is concerned.
Several other safeguards are absent. There is no provision, for example, in section 7 that the member of the Garda, Defence Forces or Revenue Commissioners would be independent of the investigation. There is case law on this in other jurisdictions. There should be a concern that a Garda superintendent who is leading an investigation would also be the person who authorises the surveillance and the placing of the device and entry into the person's home. In the absence of that safeguard and the provision to enter private homes and place surveillance there, we should be wary of allowing non-judicial authorisation for any longer than is absolutely necessary and I am not sure it is absolutely necessary for 72 hours. I am not wedded to the 24-hour limit. I put it in because I think from experience it might take 24 hours to get a District Court judge but a judge should always be available. Some period shorter than 72 hours would be an important principle to reflect the constitutional significance attached to the dwelling in our legislation.
I support this amendment because distinguishing the dwelling or home would be proportional to the constitutional protections afforded in Article 40.5 and the inviolability of the dwelling. I commend the amendment.
I acknowledge the typo and I got the drift from the other two amendments that they were all related. I gave this matter some thought from a practical point of view because I had listened to the previous debate.
The amendment deals with where an approval is given in an urgent situation by a superior officer where there is insufficient time to apply to the District Court for an authorisation. The amendment calls for the period for which the urgent surveillance would be approved to be confined to 24 hours where the surveillance to be carried out is in a private dwelling. The situations which amount to urgency in the context of surveillance are strictly defined in the Bill. As Senator Bacik stated, they are situations where it is believed that in the normal circumstances the court would grant an authorisation but that particular urgent circumstances are present which require immediate action to initiate the surveillance. These include that the subject of the surveillance might abscond, obstruct the course of justice or commit an arrestable offence; that information or evidence may be destroyed or lost; or that the security of the State is likely to be affected. Approved surveillance in cases of urgency is limited in the Bill to a period of no longer than 72 hours. Any surveillance for longer than 72 hours must be authorised by a judge. There is no possibility for renewal of the 72 hour period; a court authorisation is mandatory if the surveillance is to be continued.
The ability to initiate surveillance immediately in cases of urgency is critical for the investigation and prevention of offences. A number of safeguards underpin the Bill which recognise the privacy rights of the individual and take account of constitutional rights and rights under the European Convention on Human Rights. The constitutional position on the inviolability of the dwelling is clear in that the dwelling is inviolable save in accordance with the law. In the Bill, we are setting out statutory provisions which ground entry onto private property for the purposes of surveillance.
In urgent situations, the limitation of approvals to 72 hours has been given careful consideration and has been included on the advice of the Attorney General and the views of the Garda Síochána and other agencies concerned. They agree that a minimum period of 72 hours is necessary for the initiation and carrying out of surveillance and for the withdrawal of surveillance devices where the surveillance is not to be continued.
In dealing with the type of gangland crime at which this legislation is directed and in a situation of urgency, the officers concerned may not be in a position to determine whether a building or other location constitutes a private dwelling. Moving from place to place is a characteristic of this class of criminal, using a variety of properties which may have the appearance of a dwelling but may not in fact be so. The 72 hour period is sufficiently strict while being effective.
To enable urgent surveillance to be carried out through two separate regimes, one for a dwelling and one for other locations in situations where quick action is required, would, from an operational point of view, be very difficult for the agencies concerned and it is on the advice of the Attorney General and discussions with the Garda Síochána that I will not be accepting the amendment.
I am grateful to the Minister of State for his considered response and for the information on the Attorney General's advice and that there are certain operational reasons for the need for a specific time period. The reason for distinguishing a dwelling is not something I have plucked from the air. I accept that sometimes it can be difficult to ascertain whether it is a dwelling but "dwelling" is a legal term used throughout criminal justice legislation and in the constitution as it distinguishes a dwelling from other types of buildings. Case law on search warrants indicates that one can distinguish searches of a dwelling from other types of search of property. The distinction is already there and I am simply seeking to give effect to it in this Bill. I urge the Minister of State to place some distinction to provide an added level of safeguard for the dwelling. It would not be that difficult to do so as I am not suggesting a different procedure but a shorter time limit.
I should have mentioned another matter with regard to section 7(3) to which the Minister of State referred, which provides that the superior officer shall approve the carrying out of such surveillance only if he or she is satisfied that there are reasonable grounds for believing that an authorisation would be issued under section 5 and that the conditions of urgency apply. I wish to express a little caution on this; according to the Bill the superior officer could, although constitutional issues might be raised, be involved in the investigation directly. Is it a sufficient safeguard that he or she would have what seems to me to be the semi-judicial function of being satisfied there are reasonable grounds for believing an authorisation would be issued by a judge? Will the Minister of State consider further making a distinction of some kind where the authorisation or approval relates to a dwelling?
The advice received and concern raised from an operational point of view was that where decisions needed to be made in real time with a degree of urgency, it would not always be possible in a practical manner to determine whether a property was somebody's dwelling. With regard to the more fundamental point on 24 hours or 72 hours, the provision is based on the very strong advice of the Attorney General and, from an operational point of view, from the Garda Síochána.
In those 24 hours one would have access to the building and I presume there would be analysis of why one is going into that building. One would have background information prior to entering any building to install equipment for covert surveillance. However, having entered the building and having full knowledge of what it looks like, in the 24-hour period during which one has installed the equipment one would be in a position to ascertain whether it was a dwelling in the legal sense of the term. I do not understand the difficulties to which the Minister of State referred as the Garda would have actual knowledge of the building having had access to it.
It might be difficult to determine in the 24 hours whether the building was a dwelling and may not be as easy as Senator Regan suggests. I wish to point out that it is not an automatic 72 hours, it is up to 72 hours and there are grounds on which the decision is made. This is also to allow for the withdrawal of the device.
I am grateful to Senator Regan for making the very obvious point that 24 hours would be enough time to ascertain whether the premises was a dwelling. The Minister of State's point on the maximum period reminds me of the old saying that housework expands to fill the time available. I do not know whether the Minister of State is familiar with that. Similarly, where there is a power to use surveillance for up to 72 hours, I suspect that the maximum period would almost invariably be used. There is no requirement for any extra authorisation. I am trying to remember the new provisions with regard to detention powers; after the first 12 hours there must be further authorisation and again after another 12 hours up to a maximum of 72 hours. Had I thought of it, I could have tabled an alternative amendment to require a review of the time period after 24 hours and at that point the superior officer could further authorise up to a maximum of 72 hours where a dwelling was concerned. This would have been a relevant safeguard, and there is a precedent with regard to detention powers, because 72 hours is quite a lengthy period to have one's home under surveillance and we must keep this practical reality in mind as we debate the Bill.
The 72 hours was the subject of some considerable discussion. It will be used only in very extreme circumstances and will not be the norm. It is not possible to extend the period beyond 72 hours in this process; it requires judicial input. From that point of view I cannot accept the amendment because the provision is based on the strong advice of the Attorney General's office and the Garda Síochána.
Amendment put and declared lost.
I move amendment No. 6:
In page 9, subsection (9), line 29, after "hours" to insert ", or, as the case may be, 12 hours".
Amendment put and declared lost.
I move amendment No. 7:
In page 9, subsection (10)(a), line 32, after “hours” to insert “or, as the case may be, 12 hours,”.
Amendment put and declared lost.
Section 7 agreed to.
SECTION 8.
Amendments Nos. 8, 10 and 11 are cognate. Amendment No. 12 is related. Amendments Nos. 8, 10, 11 and 12 may be discussed together. Is that agreed?Agreed.
I move amendment No. 8:
In page 10, subsection (1), line 17, to delete "superior officer" and substitute "Judge of the District Court".
This amendment concerns tracking devices and the judicial supervision or authorisation I suggest should be applicable in this case. I return to the European Convention on Human Rights, which has held that privacy issues arise where there is a systematic or permanent record of activities carried out by an individual, even in a public place. The tracking of the location of a person, vehicle or thing and the recording of data relating to that person or thing amounts to an interference with the right to privacy within the meaning of the convention. That interference can be justified where it is authorised by law, as we know, as long as there are adequate safeguards. There is a very important case concerning surveillance, that is, Klass v. Germany, and it is acknowledged that abuse of surveillance is quite easy and that it is desirable to have judicial control in authorising such surveillance. The question is whether there are adequate safeguards in this Bill to justify the procedure envisaged here.
These amendments propose that judicial authorisation would be required, as in the case of surveillance per se, but this is another type of surveillance and should be subject to judicial authorisation. It is included in this Bill, with the objective of being able to use information gathered in this way in a court as evidence, and in that light the same safeguards should be incorporated into the acquiring of such information to make it legitimate and ensure it is not subject to judicial challenge, or at least it is less likely, if subjected to such a challenge, to be found to be unlawful.
I support this amendment, which is a corollary to my amendment. Section 8 appears to provide for a bypass to judicial procedure. Reading the Bill carefully, it is clear in section 1 that tracking devices are a type of surveillance type with a more limited function, because they are only used for the purpose of providing information regarding location. Location and movement are measured by tracking devices, whereas surveillance devices more broadly cover the content of conversations and of monitoring activity.
Tracking devices are a type of surveillance device, therefore, a garda, Revenue or Army officer who wishes to mount a tracking device in somebody's home or another place can do so by applying to a judge under section 4(5) for authorisation. I would be grateful for the Minister of State's clarification on whether an application for authorisation covers tracking and surveillance devices.
The primary procedure under this Bill, if one reads section 3, 4 and 5, is that somebody who wants to plant a surveillance or tracking device must go to a judge. Section 7 states in circumstances of urgency where a person wants to plant a surveillance device but does not have time to go to a judge, he or she can go to his or her superior officer. Section 8 provides a rather extraordinary bypass mechanism, where one bypasses the judicial authorisation procedure provided for in sections 4 and 5 where one wants a more limited tracking device to be placed, rather than the broader definition of surveillance device.
Why include tracking devices within the ambit of surveillance devices if one can go straight to a superior officer? There is no requirement that there be circumstances of urgency. I suggested an amendment where one could operate section 8 where there were circumstances of urgency. Senator Regan's approach, which was recommended by the Irish Human Rights Commission, states that section 8 should instead be the mechanism for seeking judicial authorisation of tracking devices only.
Either approach would be better than the current one, which envisages that one can go to a superior officer who it appears, although there may be constitutional problems, could be somebody involved in the investigation, to get permission for a tracking device for up to four months. One can enter somebody's home to plant a tracking device under section 8(5) and re-enter it to take it away. All of that can be done without judicial authorisation, even where there are no urgent circumstances.
This could potentially breach the convention and I am grateful to the Irish Human Rights Commission for providing a very considered set of observations on the Bill. It was very exercised by section 8, which it suggested provides for a separate mechanism for tracking devices. Paragraph 20 of its report states section 8 of the Bill provides for a separate system of authorisation for tracking devices and that this type of surveillance should be subject to the same types of safeguards provided for in the other types of surveillance envisaged under the 2009 Bill and that, in particular, there should be judicial supervision of the use of such devices.
On my reading, there can be such supervision under sections 4 and 5, because one can go to a judge where one merely wants to plant a tracking device as it is included as a type of surveillance device. However, there is an automatic bypass, without the need for circumstances of urgency, in section 8. I am concerned the provision might be too broad, particularly having regard to the case of Klass v. Germany to which Senator Regan referred and which is also dealt with by the Irish Human Rights Commission.
It recommends that there should be a requirement that a judge should authorise the operation of tracking devices so that the same safeguards are applied to the use of all types of surveillance devices, including tracking devices. The Minister of State could make that change or take my proposal in amendment No. 9, that is, to limit section 8 to the circumstance of emergency as apply in section 7. Either mechanism would allow superior officers to authorise tracking, but would also allow for safeguards to be in place to the same degree as are in place for the planting of surveillance devices more broadly defined.
There is a lack of clarity about the definitions. It is not clear, as Senator Regan and I have discussed, whether section 8 is envisaged to be the sole procedure for planting tracking devices or sections 4 and 5 should be read as applying to it. Sections 4 and 5 do apply to tracking devices — that has to be the clear reading. However, any officer who is involved in an investigation and is aware of these procedures will be aware he or she can simply go straight to his or her superior officer without going to a judge, if all he or she wants to plant is a tracking device.
In practice, the judicial authorisation route will be bypassed because section 8 exists in its present form, and because there is great potential for abuse it is important that section 8 be amended, by Senator Regan's amendment or by mine. Either would address the concerns offered by the Irish Human Rights Commission. It has, as we have, offered a broad welcome for the Bill. We are offering these amendments in a spirit of seeking to be constructive, to strengthen the Bill, to ensure it is less open to challenge than in its current form and to ensure there is less potential for abuse.
As a colourful example of a recent high-profile bugging exercise, I read that the indiscretions of Italian Premier Silvio Berlusconi have come to light because of covert surveillance devices planted in the home of his hosts at a party he attended. As a by-product of the bugging, which was to investigate a completely different set of dealings between different businessmen, various conversations Mr. Berlusconi had with women came to light and entered the public domain. The case highlights the fallout that can occur from covert surveillance and the great deal of care that needs to be taken when we are authorising it.
I do not say this by way of opposition to the Bill because I accept, as I have already done, that it is welcome and sets an important statutory framework. However, we need to ensure it is a strong and watertight statutory framework. I am not sure section 8 is sufficiently watertight in its current form. I would be grateful to hear the Minister of State's considered view on this point.
These amendments seek to make the use of tracking devices by the Garda Síochána subject to judicial authorisation rather than the system of approvals currently provided for in the Bill. The use of tracking devices is regarded as a less intrusive means of surveillance compared to others. Tracking devices are defined for the purpose of the Bill as devices to provide information on the location of a person, vehicle or thing. In providing for a system of approvals rather than authorisations, the Bill seeks to achieve a balance between the necessity for fast action in the placing of tracking devices and the provision of an effective regulatory framework for their use. While the tracking devices do not require judicial authorisation, they are subject to the oversight framework laid down in the Bill for surveillance devices.
Tracking devices provide information on the location of persons, vehicles or things, and the opportunity and timing of their placement is critical if they are to be successfully used. A tracking device can be attached, for example, to a package that is suspected to be a drugs shipment as it arrives in port, or to a vehicle. In many cases its placement will be required at short notice; otherwise, the opportunity to prevent or solve a crime would be lost because the vehicle or package may have moved on. As with approval of surveillance in cases of urgency, it is imperative that the Bill provides for an effective and practical system that can be used by the Garda Síochána which does not result in unnecessary delay while a court application is sought — a delay that might hinder or jeopardise an investigation.
As a counterbalance, the Bill provides for a stringent system of control for the use of tracking devices, including rules on record keeping and reporting where such approval is given. Although the function of tracking devices as surveillance devices is somewhat limited, the timely use of a tracking device can be an effective tool in the armoury of both security and customs personnel.
For those reasons, I do not propose to accept the amendments.
The background to this legislation is the extreme situation that exists with regard to gangland crime and organised crime. In this extreme situation, it can seem petty to suggest safeguards and amendments to a Bill, the very purpose of which is legitimate and of vital importance. However, if I read the Bill correctly, the application for these tracking devices and for surveillance does not have to be made in writing and can be made orally. It is retrospectively that a superior officer draws up a report which sets out the justification for the authorisation. Perhaps the Minister of State can clarify this point.
The reality is that despite the context in which we are adopting this legislation, there is scope for abuse. It is this we are trying to guard against and thereby ensure the Bill is drafted in the best possible way. I ask the Minister of State to reconsider his objections to this amendment.
To echo Senator Regan, I take the Minister's point that tracking devices are less intrusive than surveillance devices more broadly. Entry to people's homes is authorised under section 8 to plant and withdraw tracking devices and these devices can be placed for up to four months without judicial authorisation according to this section. I take the Minister of State's point that they could be attached to packages or vehicles but they are not confined to goods in transit, where there might be a real situation of urgency. This authorises tracking devices to be placed in any location.
I am at a loss as to why it was considered necessary to have this bypass route for the placing of tracking devices. Reading the section as a practising lawyer, one can anticipate that where section 8 has been used and applied, and where a trial then ensues, the superior officer who has approved the placing of the tracking device will in practice be cross-examined extensively on the basis of the written record of approval, the time, the conditions and so on. It may be very problematic to operate in practice and I do not see why it was considered necessary to do this.
It is very easy to go before a district judge. The practice of getting peace commissioners and so on to issue search warrants became problematic and it is much easier to go to a district judge because that procedure is much more watertight. Once something like this has received judicial authorisation and consideration, it is much harder for defence lawyers to go behind it, to put it bluntly. To take section 5, the district judge hears the authorisation application ex parte and in private, and it can be any district judge and does not have to be the district judge assigned to any particular district — there was a case on this point. The procedure for seeking judicial authorisation for surveillance devices seems straightforward and I am not sure why it was considered necessary to have this bypass mechanism in section 8 for all sorts for tracking devices for up to four months, even where there are no circumstances of urgency. I have no problem with the idea of section 8 in circumstances of urgency, as section 7 provides, but I am unclear as to why it is so broadly drafted.
Another operational reason it may not be used in practice, although I am not sure this has been considered, is that the evidence of the tracking of people's location and movements is already routinely offered in criminal trials on the basis of mobile phone records which can be sought by the Garda from the mobile phone companies. We have seen very high-profile convictions on the basis of people's location at crucial times having been proved in court on the basis of mobile phone records. It begs the question of whether it is necessary to have this elaborate bypass mechanism in all the written records and ministerial regulations when there is already the alternative method of offering evidence of people's movements through tracking.
To reiterate, the system of approvals was deemed appropriate where the use of tracking devices is regarded as less intrusive. From a practical and operational point of view, it is important to try to get the balance right with regard to the necessity for fast action and, on the other side, the reporting and safeguards. It is not just a question of a tracking device being switched on for four months and away we go. There is much more to it than that.
With regard to Senator Regan's point, I am informed that written forms are being prepared for that purpose.
For the application for approval.
Yes.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 9:
In page 10, subsection (1), line 18, after "section" to insert the following:
", in cases of urgency where the provisions of section 7(2) apply”.
I will be brief because we have dealt with the substance of this amendment while discussing Senator Regan's amendment. This is a corollary and may be more attractive to the Minister of State because it allows for the current system to operate. Superior officers may approve tracking devices under section 8 but the amendment simply inserts a proviso that they may only do so in cases of urgency and in which the provisions of section 7(2) apply. I am trying to ensure the general rule would be observed and that generally the Garda would require judicial authorisation before any tracking or other surveillance device could be planted. Sections 4 and 5 provide for the default application procedures and sections 7 and 8 would only come into operation in cases of urgency. Therefore, the power of a superior officer to approve tracking and surveillance devices would be limited to urgent situations. I do not propose to limit the time although the Irish Human Rights Commission suggested that could be another way of limiting the effect of section 8. It recommended a reduction in the maximum duration for which the use of a tracking device could be authorised. However, I am simply saying that as a safeguard superior officers should only be able to grant approval where circumstances of urgency apply. This seems to me a reasonable amendment which allows for non-judicial approval but limits the cases in which non-judicial approval may be sought. I do not see why there is a need for such a broad bypass as currently provided for in section 8.
The amendment seeks to provide that the approvals system which applies to the use of tracking devices would only be utilised in circumstances of urgency as set out in section 7(2). Tracking devices within the definition provided for in the Bill provide information on location only. They are less intrusive in character than other surveillance devices. They do not record sound or capture images. If a particular device used carries out any of these functions in the course of a surveillance operation, it is no longer considered to be a tracking device and is subject to the same authorisation procedure required for the use of other surveillance devices. It is because of the less intrusive nature of tracking devices that an approvals system rather than a court authorisation procedure is used. In providing for a system of approvals rather than authorisations, the Bill seeks to achieve a balance between the necessity for fast action in the placing of the tracking device and the provision of an effective regulatory framework for their use.
Tracking devices monitor the movement of persons, vehicles or things. The opportunity for and timing of their placement is critical if they are to be used successfully. A tracking device could be attached to a package, such as a drugs shipment at a port, or to a vehicle. In many cases its placement could be required at short notice. Otherwise the opportunity to prevent or solve a crime could be lost because the vehicle or package could have moved on. As with the approval for surveillance in a case of urgency, it is imperative the Bill provides an efficient and practical system which can be used by the Garda Síochána and which does not result in unnecessary delay while a court application is sought. Such a delay could hinder or jeopardise an investigation. As a counterbalance the Bill provides for a stringent system of controls for the use of tracking devices, including rules, record keeping and reporting in cases in which such approval is granted. The kernel of the argument, as in the previous debate, is that tracking devices are specifically dealt with in the sense that they are deemed to be significantly less intrusive than other forms of surveillance. It is in this regard that the distinction has emerged.
Amendment put and declared lost.
I move amendment No. 10:
In page 10, subsection (2), line 20, to delete "superior officer" and substitute "Judge of the District Court".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 11:
In page 10, subsection (3), line 33, to delete "superior officer" and substitute "Judge of the District Court".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 12:
In page 10, subsection (6), lines 46 and 47, to delete all words from and including "A" in line 46 down to and including "section" in line 47 and substitute the following:
"When an approval under this section is granted, a superior officer of the member or officer referred to in subsection (1)”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 8 agreed to.
Sections 9 to 11, inclusive, agreed to.
SECTION 12.
I move amendment No. 13:
In page 15, lines 27 to 31, to delete subsection (1) and substitute the following:
"(1) The Minister shall invite a retired judge of the High Court to undertake the duties specified in this section and, if the invitation is accepted, shall designate the judge for the purposes performing those functions.".
This provides for judicial oversight after the event by the appointment of a serving High Court judge. Among the functions designated to him or her are to keep under review the operations of sections 4 to 8, the essential parts of the Bill, and to report to the Taoiseach from time to time and at least once every 12 months concerning any matters relating to the operations of these sections that he or she considers should be reported. My difficulty with the provision is that a sitting High Court judge would act as adviser and report directly to the Taoiseach. It embroils the Judiciary in the executive and legislative arm of the State in a manner which is inappropriate, bearing in mind the constitutional principle of the separation of powers. I recognise that there is a similar provision in the Interception of Postal Packets and Telecommunications Parcels (Regulation) Act 1993 but I asked the Minister on Second Stage whether the Attorney General had advice specifically on the provision in this section in light of my question on the separation of powers. It seems to be inappropriate that a sitting judge should act as adviser and report directly to the Taoiseach on this matter. It does not sit well with the basic principle of the separation of powers. I also raised other issues in regard to this but rather than oppose the section, I have tried to move an amendment which provides that the judge in question would be a retired judge. This would deal with the concern I expressed.
I support the amendment. It seems to be a departure from practice to invite a sitting judge to undertake the function of reporting to the Executive and keeping under review particular provisions of the Bill. It is sensible that the power would be instead delegated to a retired judge. I understand this is more commonly the practice in such cases and I urge the Minister of State to consider the amendment.
The amendment provides for the replacement of section 12(1) which provides that the President of the High Court having consulted with the Minister would invite a serving High Court judge to undertake the duties specified. If the invitation were accepted the Government would designate the judge for the purpose of performing those functions. The amendment provides that the Minister would invite a retired judge to perform the functions specified in the section and would designate the judge for those purposes if the invitation were accepted.
The oversight functions of the designated judge set out in the section are not judicial functions nor are they intended to be functions for which the person concerned would be in receipt of a stipend. In carrying out functions under section 12, the judge would be performing neither legislative nor executive functions. It is clear any judge who takes up such functions would have the approval of the President of the High Court in doing so. In terms of the Constitution there is no objection in principle to a serving judge performing non-judicial tasks. If the person designated to undertake these functions were a retired judge, he or she would require some form of fee or payment for the task and there is no provision in the Bill for the creation of a paid post.
In reply to Senator Bacik, as Senator Regan said, this mirrors the 1993 Act. Senator Bacik raised this point on Second Stage and while the Attorney General's office would have reviewed the legislation, I asked for clarification on this particular point at the specific request of the Senator and the Attorney General is satisfied.
Amendment, by leave, withdrawn.
Section 12 agreed to.
Sections 13 to 15, inclusive, agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."
I do not have any objection to the wording but I note the Human Rights Commission made a very useful proposal that this section would be used to allow the relevant Minister to require particular codes of practice to be drawn up relating to the operation of the Bill. I have already referred to the need for some form of code of practice governing the placing and removal of tracking devices. I note that in the British legislation, section 71 of the Regulation of Investigatory Powers Act 2000 obliges the Home Secretary to issue codes of practice relating to the exercise of surveillance powers and duties. The Human Rights Commission has suggested that this would be useful to include in this Bill because it would allow such a code to be proofed against and underpinned by relevant human rights standards. This might be a useful aid in ensuring that the powers provided for in the Bill would be carried out in a proportionate and reasonable manner. Section 16 as drafted allows for such codes of practice to be drawn up but I merely wish to put on the record of the House the fact that they would be very useful and really important in ensuring that the powers authorised by the Bill are carried out in a reasonable way.
I acknowledge the Senator's contribution.
Question put and agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."
Section 17 proposes to preclude the Garda Síochána ombudsman from availing of the provisions of this Bill when it may be in the course of carrying out its functions, which have been designated to it by the Oireachtas, as an independent oversight of the Garda Síochána. Not to be in a position to avail of the instruments which are provided for in the Bill limits the capacity of that body to fulfil its role. I do not see the justification for this provision in section 17.
The Garda Síochána Ombudsman Commission has a very limited role in this Bill. If it is to carry out its duties effectively, and where it is investigating abuses, it should have all of the necessary facilities to do so effectively. I fail to understand the rationale for this provision and the reason the Garda Síochána Ombudsman Commission is specifically precluded from availing of this facility where it may find it necessary to carry out an investigation into the investigation by the police force of what can be very serious crimes.
We know the background to the potential for abuse. We have had the Morris tribunal and we have all been shocked by the extent to which abuses can take place. Given the importance of this Bill and the interference with the right to privacy which we know is justified in the vast majority of cases where this will be used, there is potential for abuse of this system for personal gain by individuals in the force. If this provision and facility was available to the Garda Síochána Ombudsman Commission, this would be a significant deterrent against any potential abuse and it would be an additional safeguard that should be included in the Bill. I have difficulties with section 17 which I oppose.
I would oppose the exclusion of the Garda Síochána Ombudsman Commission from the powers provided for in this Bill. Again I am grateful to the Human Rights Commission for providing us with very extensive notes. The commission points out that the functions of the commission include the investigation of complaints concerning the investigation of alleged arrestable offences involving members of the Garda Síochána. It would be important and in keeping with the European Convention on Human Rights that where there has been an allegation of an arrestable offence having been committed by an agent of the State, the institution or the entity which must investigate such allegations should have the same or equivalent powers as agencies of the State investigating the allegations of arrestable offences committed by ordinary members of the public. There is a difficulty where the commission does not have the same powers as the Garda Síochána in terms of the same sort of offences. Indeed, the Garda Síochána Ombudsman Commission also investigates complaints concerning death or serious injury to a person. Excluding the commission from the surveillance legislation seems to be out of line with good practice in neighbouring jurisdictions. It is unfortunate to see that it is excluded and that it does not have the same powers that are been provided for here.
Under the Garda Síochána Act 2005, the investigative staff of the Garda Síochána Ombudsman Commission have all the powers of the Garda Síochána with the exception of the interception powers under the Interception of Postal Packets and Telecommunications Messages Regulation Act 1993 and any provisions of the Offences against the State Acts 1939 to 1998. The decision taken at the time of the enactment of the Garda Síochána Act 2005, was that it would be preferable to wait until the Garda Síochána Ombudsman Commission had gained more operational experience before considering the application of interception powers to it. It is the Minister's position that this should also apply to the surveillance powers under the Criminal Justice (Surveillance) Bill at this time and, accordingly, section 17 of the Bill has been included which amends section 98(5) of the Garda Síochána Act 2005. The provisions of the Criminal Justice (Surveillance) Bill do not apply to the Garda Síochána Ombudsman Commission.
The commission has a role under this legislation in that section 11 of the Bill allows the complaints referee to refer a matter to the ombudsman commission where he or she believes there has been a contravention of the Act by the Garda Síochána.
The surveillance Bill is a very specific measure which has been brought forward specifically in the context of a robust response to the threats posed by serious crime. It provides for the first time a basis in law for secret surveillance by State agencies concerned, principally the Garda Síochána, in their roles as the primary law enforcement and security agencies of the State.
The exclusion of ombudsman commission from the provisions of the Bill is in line with practice in Northern Ireland. The Office of the Police Ombudsman for Northern Ireland does not have the interception powers or powers of surveillance. Under the Regulation of Investigatory Powers Act 2000, the Office of the Police Ombudsman for Northern Ireland has powers of directed surveillance but those do not extend to their interception or the type of surveillance which is the subject of this legislation. The situation in respect of the extension of both interception and surveillance powers to the Office of the Police Ombudsman for Northern Ireland is under review. It was established in 2001 and the ombudsman commission has been modelled on that office. Further consideration of the future application of additional powers to the office of the commission will be undertaken in light of the operational experience and in the context of an overall review of the efficiency and effectiveness of the commission and the adequacy of the functions assigned to it in the 2005 Act.
Is it true that the situation is similar to that in England? As I understand it, the practice in Northern Ireland, England and Wales, is that the equivalent bodies have this power. The Minister of State referred to operational experience — I think that was the term he used — of the Garda Síochána Ombudsman Commission but the Garda Síochána must gain operational experience in the area of surveillance, particularly covert surveillance, if it is to work effectively. On that basis I fail to understand the rationale for not making this facility, which would be used only in very exceptional cases by the Garda Síochána Ombudsman Commission. Nevertheless, the fact that the facility is available would act as a major deterrent against abuse and would be an additional safeguard in the Bill, which is warranted.
The Office of the Police Ombudsman for Northern Ireland does not have the interception powers or the surveillance type powers envisaged in this legislation. It was established in 2001 and I understand those matters have been reviewed. Our commission was modelled on it and further consideration will be given not just to the surveillance issue but to the interception question also.
Is the question agreed?
Question put and declared carried.
Sections 18 and 19 agreed to.
Title agreed to.
Bill reported without amendment.
When will the next Stage be taken?
Is that agreed?
On a point of order, the Bill is listed on today's Order Paper only for Committee Stage.
No, it is for Committee and Remaining Stages.
A Chathaoirligh, can you advise if this is the time when we can make comments on the general outcome of the Bill? When we come to that I wish to speak for a few minutes.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."
I appreciate the Minister has considered each of the proposed amendments, although he has rejected all of them. I hope the Bill, when it is adopted and put into practice, will not fail because of the intransigence regarding some of those amendments, which were made in a constructive manner and were designed to improve and strengthen the Bill.
We are adopting this legislation in extreme circumstances and extreme measures are needed to deal with the extraordinary problems we have with organised crime, drug dealing and gangland crime. One is always conscious also of the theme in the film "The Lives of Others" that there is scope for abuse. It is important adequate safeguards are in place to ensure that innocent people are not victims of misuse of this type of legislation and facility that is accorded to the guardians of the peace, the Garda Síochána, the Revenue Commissioners and the Defence Forces.
Fine Gael has supported the Bill. We made some constructive suggestions and proposed amendments. I appreciate that the matter has been debated thoroughly and I appreciate the Minister's attention.
I express my appreciation also for the Minister's considered response to the amendments tabled by me and Senator Regan. I welcome the opportunity to debate the Bill. I welcome also the provision of a statutory framework for covert surveillance and tracking devices. Report Stage was rushed through somewhat hastily and we did not have time to table amendments but I accept we had a considered debate on the amendments we tabled on Committee Stage. I appreciate also that there is a need for urgency, given the number of horrific murders that have taken place in the context of organised crime.
The amendments I proposed and the comments I made on Second and Committee Stages were made in a spirit of being constructive and ensuring that there are adequate safeguards in the legislation and that the legislation is watertight and will not be misused in any way. I expressed concerns about some matters, particularly in sections 7 and 8 on which we must be particularly cautious because those provisions allow for non-judicial authorisation of surveillance devices.
I expressed concern also about the State security ground on which surveillance could be approved because in the past we have seen peaceful protestors and people exercising their civic right to protest being subjected to surveillance. Groups that spring to mind are the protestors such as those involved in the Shell to Sea campaign who might have valid concerns about State intrusion on their civil liberties. In the interests of protestors who have been involved in environmental and various other protests, it is important we recognise their right to protest, legitimately and peacefully, and that we ensure the powers of the State are not abused where we are allowing for covert surveillance to be used.
I welcome the statutory framework, however, and in particular sections 3, 4 and 5 that provide a clear framework for judges to provide authorisation for surveillance.
Senator Bacik has said a lot of what I would have said and I will content myself by repeating the points that are of interest to me. I believe there are some areas where there may be the capacity for too great an intrusion by the State. Senator Bacik, in her professorial capacity, dealt with those very well and raised those concerns. It remains to be seen what happens in the outcome in court through the legal system, whether those concerns are justified.
Senator Bacik raised the question that is closest to my heart, among those questions which I only glanced upon rather than dealt with in full in my Second Stage contribution, in particular the question of groups like the Shell to Sea protestors at Corrib.
I am glad Senator Harris is not here.
I do not care. I would be delighted if he was. I could prick his little balloon for him any time I felt like it.
Senator Norris should not make a Second Stage speech.
I feel strongly about this issue. I believe those people are doing us a service because a deal was done by a Minister, who subsequently served a jail sentence, and the resources of this State, which belong rightfully to the people, were handed to a multinational combine, which is regarded as probably the dirtiest ecologically. It was awarded that particular distinction in recent days and was forced to pay $10 million for its implication in the murder of Ken Saro-Wiwa. I thank the Cathaoirleach for the little tinkle——
We are concluding now.
It is quite jazzy. Whereas the activities of the State, in terms of surveillance, are examined in the Bill, what are not directly examined or challenged legally in the Bill are the activities of people outside the direct State apparatus. I refer to the fairly thuggish security groups employed by various concerns, including Shell Oil. That worries me. I would like to know it will be covered, perhaps in other legislation.
Senator Bacik expressed her concern about the invasion of privacy and I spoke about this matter at some length on Second Stage. I regretted the fact that the Minister of State did not give more scope to this matter in his introductory speech. I instanced, for example, the fact that someone could be legitimately targeted for surveillance but there could be innocent third parties and the evidence gained by this might make its way into the newspapers. With regard to Shell to Sea——
Senator, this is not relevant to the debate on Final Stage.
——children were filmed undressing on a beach and a Roman Catholic priest was filmed while walking his dog.
Senator Norris, you are overstepping your position.
Since this matter was not directly addressed in the Bill, as far as I understand, I ask the Minister of State to take back to his colleagues a suggestion that it should be looked at in subsequent legislation governing the operation of private security firms.
Senators must confine their remarks to the content of the Bill.
Absolutely.
I thank my colleagues on the other side of the House for their general support of the Bill. I listened intently to the very fair amendments put forward by Senators Regan and Bacik and to their arguments. Desperate measures are needed to deal with desperate situations. We are talking about very serious crime.
I note the support for the Bill, subject to certain reservations. I listened to the issues raised, including the time limit and whether a superintendent or chief superintendent was required. In a very remote area of west Cork, the two biggest importations of drugs ever seen in the State were intercepted. In one case the Garda came across the drugs by accident because a boat sank and in the other it found them as a result of intense monitoring by international police with the co-operation of the local authorities. In certain areas of the country, whether west Cork or north-west Donegal, the availability of a chief superintendent or a District Court judge at short notice might not be practical.
I thank my colleagues. I also thank the Minister of State for his in-depth knowledge of the Bill. I am delighted we have come to this conclusion. I have no doubt the fruits of the Bill's success will be seen when drugs barons are put behind bars.
I thank Senators for their contributions today and during the debate on Second Stage. I acknowledge the support from all sides for this legislation. I do not view the amendments as opposition but as attempts to tease out the contents of the Bill and to be satisfied that it is effective and robust. I view the amendments in that spirit.
The Bill pushes out the boundaries but we face a very difficult situation. We must achieve a balance between tackling serious crime and protecting people's rights. I listened to Senators' arguments and I read the Bill carefully to be satisfied that it respected those rights and also afforded the Garda real and tangible facilities to effect its operations. I believe we have struck that balance and that the legislation is proportionate. I hope we will see the fruits of our efforts when people are brought to court for very serious crimes, especially where witnesses are being intimidated. This type of evidence may be the deciding factor in many of the cases which do not reach the courts at present for all sorts of reasons.
I thank everyone for their full support of the legislation. The amendments challenge us to ensure that what we are doing is seen to be robust. I assure Senator Regan that we did check the point with the Attorney General.
I appreciate that.
Question put and agreed to.
Sitting suspended at 7.45 p.m. and resumed at 8 p.m.