I welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald back to the House. I understand Senators Kathryn Reilly and Mark Daly are sharing time.
Adjournment Matters
Communications Surveillance
I welcome the Minister. I am thankful that she herself is here.
The issue I have raised has been in the news during the past few weeks. We have heard of wire-tapping, underwater cables and mass surveillance and would have to be forgiven for thinking it could be a spy film. However, it is not the upcoming James Bond film. I am talking about the revelations that the British spy agency GCHQ has been monitoring virtually everything transmitted via the Internet in Ireland. Like many others, I am deeply worried by the actions of the agency.
This matter on the Adjournment has to do with the actions by British Government Communications Headquarters, GCHQ, its operation and the unashamed power it has weilded and is wielding to go through online communications. Documents released by the whistleblower Edward Snowden outlined how a series of underwater cables connecting Ireland to the global telecoms network, or grid, were being tapped. The files listed the cables of the British Government Communications Headquarters has accessed or sought to access and identifies the commercial owners of the cables by code names.
Of particular concern to me and something about which I am deeply troubled is the minimal response there has been to what Dr. T. J. McIntyre, a lecturer at UCD School of Law and chairman of Digital Rights Ireland, has said, which is that the activity outlined in the documents amounts to mass surveillance and that everything being transmitted via the Internet in Ireland is being monitored. I have tabled this matter on the Adjournment to get the Government's response to these revelations and garner further information on how the signing of Statutory Instrument No. 541 of 2014 relates to this issue.
Since the revelations came to light, the British investigatory powers tribunal, IPT, has found that the British security services may, in principle, carry out mass surveillance of all fibre optic cables entering or leaving Britain, but the tribunal has asked for more submissions on whether receiving bulk intercepted material from foreign intelligence agencies has been lawful up until now. This decision has been criticised as it could mean that not only can the British intercept communications in and out of its own territory on a mass scale, but it can provide these private communications to foreign governments with very few restrictions.
The absence of privacy protections or safeguards for individuals when conducting surveillance puts at risk the privacy and freedom of expression of human rights activists across the world. It is important that countries uphold human rights obligations and respect a citizen's right to privacy and freedom of expression as enshrined in Articles 8 and 10 of the European Convention on Human Rights. On foot of the decision in Britain, human rights groups have stated they will appeal to the European Court of Human Rights in Strasbourg against the overall finding that the surveillance and information sharing is legal.
Where I am going with all this and why I am referencing the statutory instrument, the Snowden leaks and the decision by the British IPT is to do with the fact that the signing of the statutory instrument has been criticised for, perhaps, essentially, giving legal effect to such interceptions. It is deeply worrying for people who are concerned with civil liberties and privacy. There has been much outrage within the circles of those who have been paying attention to this issue about the fact that, rather than being outraged as a nation, the Government seems to be retroactively legalising it. This matter has been tabled in order for the Government to give its response to these spying revelations and on how the statutory instrument relates to this issue.
I welcome the Minister and thank her for coming here personally to give her response on this issue. I also thank Senator Kathryn Reilly for sharing time with me.
It is amazing that we have a situation where mass surveillance is taking place on telecommunications from this state. Like Senator Kathryn Reilly, I am amazed that there seems to be no concern about another government surveying everything that goes out of this country. If An Garda Síochána or the Defence Forces were doing it, or the Minister's Department was sanctioning the surveillance of Irish citizens - any one citizen or a journalist - there would be an outcry and outrage and we would hear about it all day every day. There are 6 million people on this island and every communication out of the country, as we understand it, is being monitored, scrutinised and under surveillance. For the life of me, I cannot understand why, when it is on this scale, there is nothing, not even a whisper, in response. It is perhaps part of a post-colonial stress disorder which we may be suffering that the thought of a revelation by a whistleblower, Edward Snowden, which was revealed in the German newspapers, created nothing in terms of an outcry from the entire population and not only from the population, the media did not seem to be concerned about it. I am certain that if the State was surveying the same citizens, there would be an outcry. For some reason, because it is a foreign entity, it seems to be acceptable.
I am also concerned that some operators, cable and wireless, are getting millions of pounds in compensation because of this programme with the Government Communications Headquarters in Britain. They are profiteering from it. Vodafone and other commercial entities, under legislation, have to co-operate, yet there is no right of appeal and we do not know what they are being asked to hand over. I am concerned and would like to hear the Minister's response on this issue because it is blanket surveillance. The argument will be made that we have a friendly neighbour. Friendly neighbours do not spy on each other.
On a different matter, I thank the Minister for taking the issue of the hooded men to the European court. This is an issue that is of equal relevance today as it was when it was taken nearly 40 years ago. The ruling of the European court on the hooded men was used as a justification for torture in Iraq and Afghanistan. That decision in the European court has to be reversed. Only Ireland can do it. I hope the Minister succeeds in that regard because there are innocent people, now and in the future, relying on her succeeding in that case.
I thank the Senators for raising these important issues and giving me the opportunity to respond to the points made.
There has been much confusion around the commencement of Part 3 of the Criminal Justice (Mutual Assistance) Act 2008. The 2008 Act gives effect to the EU Convention on Mutual Assistance in Criminal Matters. It applies only to mutual assistance in criminal matters and does not provide for assistance for intelligence gathering purposes, about which I want to be absolutely clear. The need to commence Part 3 at this time arises from the changes brought about to the structure of the European Union as a result of the Treaty of Lisbon. In accordance with that treaty, instruments providing for co-operation in police and criminal justice matters have to be implemented within five years of the treaty coming into effect, that is, by December 2014.
Furthermore, these measures, including the EU convention, have been brought within the jurisdiction of the European Court of Justice from 1 December 2014. In order to accede to the convention, which we have done, all parts of the 2008 Act had to be brought into force. Therefore, had Ireland not commenced Part 3 by 1 December, it risked infringement proceedings and potential fines.
The 2008 Act is the basis for Ireland's mutual legal assistance arrangements with other EU member states and has worked well since the other parts of the Act came into force. Part 3 of the Act deals with mutual assistance co-operation on the lawful interception of communications. What it means in practice is that where a lawful interception order is in place in one EU state for the investigation of serious crime, it can be given effect in another state but only in accordance with the domestic law.
In Ireland the relevant domestic law is the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, the operation of which is overseen by a designated judge of the High Court. As the provisions are reciprocal, the Garda can request this type of assistance from other member states. Members will appreciate that, given the international nature of crime these days, there is an absolute need for this type of co-operation.
There has been media comment, some of which was somewhat exaggerated, on the provision for in camera court hearings for a failure by a company to comply with directions issued by the Minister for Communications, Energy and Natural Resources under the 1983 telecommunications Act. The provision arises because, obviously, it would not be appropriate in open court to disclose who might be the subject of an interception order in the investigation of a serious crime. That would amount to a criminals' charter to frustrate lawful investigations. We could not allow that.
There have been recent media reports on GCHQ in the United Kingdom. I state clearly that there is no question of any form of mass surveillance being carried out in Ireland. It is important to point out that the implication was that it is happening within the United Kingdom's jurisdiction. However, it is very clear that every country makes its own legal arrangements for lawful interception. I would expect such measures, if they were ever in operation, to have a proper legal basis and the level of interference to be proportionate to the aim sought to be achieved, in any given country's legal approach.
My colleague, the Minister for Foreign Affairs and Trade, Deputy Charles Flanagan, has been in contact with the British embassy. He repeated the point that friendly relations between states include acceptance of the principle that the privacy of communications must be fully respected. This is a principle Ireland has outlined in international fora and in policy statements. The need to protect people from terrorist and other criminal threats is acknowledged. However, it is always necessary to ensure the information is properly obtained and subject to appropriate safeguards. I expect the United Kingdom and other states to follow these principles. As I have stated, in this jurisdiction such matters are governed by legislation and there is no question of any form of mass surveillance.
The Minister has said no surveillance is being carried out in Ireland, but obviously the issue is that GCHQ is monitoring communications from Ireland. In her reply the Minister stated the level of interference should be proportionate to the aim sought to be achieved. Given the revelations from Edward Snowden about surveillance, is it proportionate? She has mentioned the principle that the privacy of communications must be respected. Do the revelations show they are being respected? She has mentioned that it is necessary to ensure the information is properly obtained and subject to appropriate safeguards. Does she think that is being done? What is being done to ensure there are safeguards? The English version of the ICCL has stated it is willing to go to Strasbourg on this issue in regard to Article 10 of the European Convention on Human Rights. The Minister might not be in a position to respond now, but it is something I would like to tease out.
I thank the Minister. The response from the Minister for Foreign Affairs and Trade had all the forcefulness of a tenant going to a landlord looking for a rent reduction. He asked for the general principle to be followed. We have brought this forward in international forums. The Minister for Foreign Affairs and Trade should ask for a report from the British Government, outlining whether there is truth behind what Edward Snowden revealed. He did not reveal the information for his own self motivation or profit. He did so because he saw countries acting inappropriately. Reference was made to friendly relations.
We barely pursued the hooded men case in the European court. We did so a matter of days before the deadline expired and only because the case was being taken to the High Court. The report from the British Government should clarify whether mass surveillance is happening and what legislation is backing it up. We accept Edward Snowden's documents but Britain does not. We should not say we hope it is not doing anything inappropriate, rather we should tell it to send us a report on what it is doing and what Edward Snowden revealed.
As I have made clear, this is a topic which the Minister for Foreign Affairs and Trade has raised. I have given an indication of the general principles behind such a discussion. Clearly, the Minister would be in a position to give more detail. It is important to reiterate that there is no question of any form of mass surveillance taking place in this jurisdiction. I have made it very clear that lawful interception takes place on a very strict basis with very clear guidelines in place and for the limited purposes of combating serious crime or to protect the security of the State. I have said what legislation applies and that it is overseen by a judge of the High Court. It is sometimes a necessary tool for states and everybody understands this. We will make it clear in any discussions at any level with all relevant people that, as is the case in this jurisdiction, there has to be a solid legal base which is proportionate to the aim to be achieved. I have already said the Department of Foreign Affairs and Trade has raised these concerns with the United Kingdom. We will consistently, at every level, reiterate our belief that the principles I have outlined should apply to all decisions taken in this area.
Law Reform Commission Recommendations
I welcome the Minister. My question concerns the Law Reform Commission's report of December 2011 which set out recommendations on the legal aspects of professional home care. It followed a report in 2010 in the media that people providing professional home care were monitored. In a similar manner to what happened in Áras Attracta, we saw people who were paid to provide home care for one hour stayed for only 15 minutes. The Law Reform Commission's report also recommended that there be amending legislation. I have taken the time to have a Private Members' Bill published on the matter.
I want to know if the Minister and the Department intend to deal with the recommendations in the Law Reform Commission's report. I know that the HSE brought in clear guidelines on how people would be employed in the area of home care, but these guidelines are not within a proper regulatory framework. Because I believe there is a need for amending legislation, I introduced the Health (Professional Home Care) Bill 2014 last week and I am anxious. I do not want there to be a scenario in 12 months time whereby we will have another TV broadcast going back over same ground as in 2010 and stating the Department and the HSE are powerless to take any action in the matter. It is in that context that I tabled this Adjournment motion.
I am taking this Adjournment matter on behalf of the Minister for Health, Deputy Leo Varadkar.
Government policy recognises that most older people would prefer to stay at home. We seek to facilitate this through various community-based supports aimed at ensuring older people receive timely, safe and appropriate care and treatment at the lowest level of complexity. Services can be provided by the HSE, voluntary agencies or private operators. The Government for national recovery 2011 to 2016 commits to developing and implementing national standards for home support services which will be subject to inspection by HIQA. Nursing homes have been registered and inspected by HIQA since 2009, as the Senator knows.
During the term of office of the Government HIQA's function has extended to residential services for those with disabilities and child protection services. However, primary legislation and resources will be required for the introduction of a statutory regulation system for home care services. This will be progressed but in the context of overall legislative and resource priorities and will take into account the points the Senator has made about the recommendations of the Law Reform Commission. Many of the commission's recommendations have informed current standards and will continue to inform our deliberations on the regulation of home support services. I emphasise, however, that statutory regulation or licensing is only one way of improving quality and safety. Earlier this month the national policy and procedures for safeguarding vulnerable adults was launched. This builds on the existing elder abuse policy. It applies to all statutory and publicly-funded non-statutory service providers who are providing health and social care services for vulnerable persons. It is underpinned by a number of principles including respect for human rights, person-centredness, culture, advocacy, confidentiality, empowerment and collaboration.
Staff training and awareness will be vital aspects of the implementation of this policy and since 2007, about 39,000 people have received training on elder abuse. The HSE has progressed a range of measures, with which the Senator is familiar, to improve home care provision overall, standardise services nationally and promote quality and safety. The home help service is monitored on an ongoing basis mainly through the public health nursing service and the home help co-ordinators in each area. Monitoring involves an assessment of the needs of clients on application for the service, as well as an ongoing evaluation of the time allocated and the care provided for each client. Staff receive training in areas with which the Senator will be familiar.
In 2012 the HSE as part of a procurement process introduced standards of care for all external providers of enhanced home care. They are monitored through service level agreements with the HSE to ensure standards are being met. They have to provide a prescribed range of information and are supervised through regular local operational meetings and care plan reviews. Audits are completed and quarterly reports are requested and reviewed. However, the HSE is undertaking a full review of home care services, with a view to improving services generally, and has developed national quality guidelines for home help services for older people which will apply to all home support services. The guidelines will set out what a quality safe service should be, with underlying criteria showing how the service can be judged. One has to take all of these measures together because they are aimed at ensuring a safe and high quality service is delivered nationally across the home support service.
I thank the Minister. It is, in fairness, a very comprehensive reply, but I think it is important when the Law Reform Commission produces a report that we take on board the recommendations. This goes back to December 2011. Part of it was the legislative process. Everyone is well aware of the need for long-term planning. We are going to go from having 585,000 people over 65 years to over 990,000 by 2030. The provision of home care is going to be even more important because it will no longer be physically possible to provide the current level of support in nursing homes. The draft Bill provides that each person who requires home care provision would have a clear home care plan in place. We need to make sure it is not just about what is happening today but what is going to be happening in the next ten to 15 years. It is in that light that I have tabled this Adjournment matter and drafted the legislation. I thank the Minister for the very comprehensive reply and ask that my views on this matter be taken on board as regards future legislation.
It is a very important point that the Senator has raised about the future needs of the elderly population and the benefits of having a legislative, statutory base for the home care provisions made. As he says, this was recommended by the Law Reform Commission and I have no doubt it will guide the Ministers in their approach to this issue. As I said, it will be progressed in the context of the overall legislative and resource priorities. I congratulate the Senator on introducing the Bill. I will make sure it is brought to the attention of the Minister for Health.
The Seanad adjourned at 7.15 p.m. until 10.30 a.m. on Thursday, 18 December 2014.