I hope so and I appreciate your concern, Deputy Pattison. I am glad to be able to bring this Bill before the House at this time. The issue of interception of communications, or as it is sometimes more colloquially called, telephone tapping, makes the headlines from time to time. Although many of the issues that give rise to those headlines may be outside the scope of this Bill, which has a precise purpose, the Bill is important for two good reasons. First, it will place on a statutory basis the power of the Minister for Justice to authorise interceptions of postal packets and telecommunications and, in so doing, introduces two new provisions for controlling the exercise of the Minister's powers in that respect. Second, it takes full account of the requirements of the European Convention on Human Rights.
The Bill provides that the purposes — and the only purposes — for which the Minister may authorise interceptions shall be those of criminal investigation and the security of the State. It also sets out in detail the procedure that must be followed before an interception can be authorised. The two new provisions it introduces for controlling the exercise of the Minister's powers are, first, for the operation of the Act to be kept under review by a judge of the High Court and, second, for the appointment of a legally qualified referee to investigate complaints of improper authorisation by the Minister.
To accept in general the provisions of this Bill one must first of all accept in principle that a system of authorised interceptions is justified. I say this because I contend that any reasonable person will recognise that it is important to preserve the privacy of communications and that any breach of that privacy could only be made in the most controlled and exceptional of circumstances. To that end the system of authorised interceptions in this Bill embodies the reconciliation of two important principles. The first is the privacy of correspondence and telephone calls; the second is the need to combat crime and subversion.
Little needs to be said as to the importance of preserving the privacy of communications. If you post a letter, you expect it to be delivered unopened to your correspondent; if you make a telephone call, any telephone call, whether it is made from your home, office or car, you do not usually want third parties to listen to it and you do not want it published in newspapers or otherwise published. Indeed, it is not too much to say that it is one of the features of life in a free country that people should be able to write to other people, or speak to them on the telephone, without their letters or telephone calls being intercepted. Interception of letters or telephone calls, except under lawful authority, is an offence under sections 84 and 98, respectively, of the Postal and Telecommunications Services Act, 1983. I will refer further to those important provisions in a moment.
It has always been recognised that the importance of combating serious crime or subversive activities is so great and that it should prevail, in strictly limited circumstances, over the principle of privacy. For example, the Garda may have information that a kidnapping has been planned or that a large quantity of dangerous drugs, or of arms or explosives, is about to be imported or moved, and there may be good reason to believe that the final arrangements are going to be made by telephone calls between some of the persons involved. If the telephone calls could be listened to, this might provide a link in the investigations which would enable the crime to be prevented or detected. In fact the European Court of Human Rights has accepted that, and I quote,
...the increase of crime and particularly the growth of organised crime, the increasing sophistication of criminals and the ease and speed with which they can move about have made telephone interception an indispensable tool in the investigation and prevention of serious crime.
It is because of the conflict between the need to preserve the privacy of postal and telephone communications in general and the need to allow them to be intercepted in particular circumstances that the system of interception under the authority of a warrant by the Minister for Justice has been established. The actual interceptions are carried out by the appropriate officials of An Post or Bord Telecom on foot of a direction under section 110 of the 1983 Act but, in every case, there must be a warrent by the Minister for Justice authorising the interception by reference to the address or telephone number in question. Thus, the Minister has cast on him the disagreeable duty of deciding whether the need to combat crime or subversion obliges him to authorise the official opening of people's correspondence or eavesdropping on their telephone calls.
I turn now to the provisions of the Bill. It is similar in many respects to the Bill presented to the Dáil in 1985 but which was never debated and to the Private Member's Bill presented in 1990. There are differences; some of these are more than drafting changes and some are made necessary by the passage of time. However, there are some substantive changes. I will explain the reasons for these when I come to the provisions in which the changes occur.
The only definition in section 1 to which I need refer at this point is that of "interception". This definition is fundamental to the Bill. Stated briefly, "interception" means opening a letter or listening to, or recording a telephone call, except that in the case of a telephone call the definition will not apply in a case where either party to the call has consented to the listening or recording. This Bill does not create any offence of unauthorised interception. As I have already said, what it does is to regulate the power of the Minister for Justice to authorise interception. The actual offences of unauthorised interception are at sections 84 and 98 of the 1983 Act. For example, section 98 makes it an offence to intercept telecommunications messages being transmitted by Telecom Éireann or to disclose the existence, substance or purport of any such message which has been intercepted or to use for any purpose any information obtained from any such message. The penalties for interception are severe; on conviction on indictment the fine could be as high as £50,000, or imprisonment for up to five years, or both.
Also, in these days of continually advancing technology the meaning of "telecommunications" is important in the context of interception. "Telecommunications" is not defined in the Bill; neither is it defined in the 1983 Act. One has to go back to the last century to trace the meaning of the word "telecommunications". With the assistance of case law it is clear that the fact that a particular method of communications was not invented or contemplated when definitions were first provided in legislation does not prevent that method from falling within the meaning of "telecommunications". Therefore, modern means of telecommunication are taken to come within the meaning of "telecommunications".
Section 2, read with section 3, lays down the fundamental requirements of the Bill that interception of letters and telephone calls may take place only in accordance with an authorisation given by the Minister for Justice and that the only purposes for which the Minister may given an authorisation are those of criminal investigation or of the security of the State. The reason I said that section 2 has to be read with section 3 is that the actual interceptions, as I said they are at present, will be carried out by An Post or Bord Telecom as the case may be in accordance with directions by the Minister for Communications. These directions are given under section 110 of the Postal and Telecommunications Services Act, 1983. What section 3 of the Bill does is to provide that a direction by that Minister, if it is one requiring an interception, shall be given or remain in force only if and for so long as there is in force an authorisation by the Minister for Justice applying to the interception. An authorisation by the Minister for Justice must be given by a written warrant signed by him except that in a case of exceptional urgency he may give it orally in the first instance, but in that case he must confirm it by a written warrant as soon as may be.
I stress the requirement that the only purposes for which an interception may be authorised will be those of criminal investigation or the security of the State. These are the same restrictions as have been established by governmental undertakings in the past. It is also important to note that under section 2 the power to authorise interceptions will be much more restrictive against the Executive than is required under the European Convention on Human Rights. Under Article 8 of the Convention interference with the right of privacy for correspondence is permitted if it is "necessary in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others". Thus, of all the grounds for authorising interception on which the convention permits Governments to rely, we shall be relying on only two — national security and the prevention of crime.
Section 2 includes other provisions restricting the power of the Minister for Justice to issue a warrant. Read with sections 4 and 5, it restricts the cases in which warrants may be issued for the purpose of criminal investigation and the security of the State respectively; this restriction is that the Minister shall not give an authorisation unless he considers that the particular conditions laid down in sections 4 and 5 respectively stand fulfilled. Under section 2 the Minister must also consider that there has been no contravention of the procedure which under section 6 must be observed before he may issue the warrant. The warrant will have to include a positive statement that these requirements have been complied with.
The warrant will specify the relevant postal address or telephone number. In the case of a postal address it will also limit the authorisation to particular addressees unless the Minister considers that this would be prejudicial to the purposes of the proposed interception. A warrant will remain in force for a maximum period of three months but may be renewed for similar periods provided that the same conditions as justified the original issue are fulfilled. The Minister may, before deciding whether to issue or renew a warrant in a particular case or in a case of any particular class, consult the judge of the High Court who, as I mentioned at the beginning, will have the duty of keeping the operation of the legislation under review.
Section 4 sets out the conditions which the Minister for Justice must consider to stand fulfilled in order to justify him in issuing a warrant authorising interception for the purpose of criminal investigation. The offence or suspected offence being investigated must be a "serious offence" as defined in section 1. This means that it must fulfil both the following requirements. First, it must be an offence punishable with at least five years' imprisonment. Second, it must involve loss of human life, serious personal injury, serious loss of or damage to property, or a risk of this; or it must result, or be likely to result, in substantial financial gain; or the facts and circumstances must make the offence a specially serious one of its kind. The investigations already being undertaken must have failed, or be likely to fail, to produce, or to produce sufficiently quickly, the required information or evidence sufficient for the purpose of a prosecution and there must be a reasonable prospect that the proposed interception will help to provide such information or evidence. In the case of an offence apprehended but not committed, the last of the conditions I have mentioned will be that there is a reasonable prospect that the proposed interception will be of help in preventing the commission of the offence or in detecting it if it is committed. In addition to these conditions it will be necessary also — and I stress this particularly — that the importance of obtaining the information or evidence concerned is in all the circumstances, and notwithstanding the importance of preserving the privacy of letters and telephone calls, sufficient to justify the interception.
Therefore, the Minister for Justice will have to take a considered decision, in each case, after balancing the claims of privacy for communications and those of criminal investigation, before deciding that the needs of criminal investigation must prevail. Only if he so decides will he have power to issue a warrant.
Section 5 sets out the conditions which the Minister for Justice must consider to stand fulfilled in order to justify him in issuing a warrant authorising interceptions in the interests of the security of the State. In this case the Minister must consider that, and I quote from section 5 (a):
there are reasonable grounds for believing that particular activities that are endangering or likely to endanger the security of the State are being carried on or are proposed to be carried on,
Moreover, the section requires that other conditions, similar to those that apply under section 4 in the case of warrants for the purpose of criminal investigation must, in the Minister's opinion, stand fulfilled.
Section 6 sets out the procedure that must be gone through before the Minister may issue a warrant authorising an interception. This is not a mere technical matter as procedural provisions sometimes are: on the contrary, it is vital to the legislation. The purpose of the procedure laid down in the section, which complements sections 4 and 5, is to secure that warrants are issued only in furtherance of investigations already in existence. Neither the Minister nor officials of his Department will be able to initiate the process leading to an interception. If the purpose of the proposed interception is that of criminal investigation, the process will have to be initiated by the Commissioner of the Garda Síochána. If the purpose is that of the security of the State, the process will have to be initiated by either the Commissioner of the Garda Síochána or the appropriate military officer of the rank of colonel or above designated by the Minister for Defence.
The commissioner or the designated officer will have to make an application in writing containing sufficient information to enable the Minister to determine whether the relevant conditions stand fulfilled. The application will be sent or given to an officer of the Department of Justice nominated by the Minister for the purposes of the Act. An application by the designated military officer will require to be accompanied by a supporting recommendation by the Minister for Defence.
The nominated officer of the Minister will consider the application and make a written submission to the Minister stating whether in his opinion the relevant conditions under the Act for the issue of a warrant stand fulfilled or, if not, in what respects they fail to do so. The decision whether to issue a warrant will of course be that of the Minister himself. Section 6 formalises the procedure for application for warrants for the rigorous scrutiny of such applications.
Section 7 provides a particular procedure for the ending of an authorisation for interception in a case where interceptions are no longer required for the purposes for which they were authorised. It is another safeguard which will ensure that interceptions are kept to the minimum necessary for the purpose for which the power is conferred.
I mentioned at the beginning that the Bill introduces two new provisions for controlling the exercise by the Minister of his power to authorise interceptions. The two new provisions are contained in sections 8 and 9. These sections serve quite different purposes. Section 8 provides for a judge of the High Court to keep the operation of the Act generally under review, irrespective of any complaint by a member of the public as to how it is operated; section 9 provides a procedure under which a person who believes that his letters or telephone calls have been intercepted may have the matter investigated and may obtain redress if it is found that the interception, if it took place, was improperly authorised. Before describing the two procedures in more detail, I would remind Deputies that the sections deal only with interceptions where there has been a warrant by the Minister. The sections are not concerned with illegal interceptions, which are a matter to be dealt with by the prosecuting authorities and the courts.
Section 8 provides that the Government shall designate a judge of the High Court to carry out the duty, if he accepts the invitation to do so from the President of the High Court, of keeping the operation of the Act under review and ascertaining whether its provisions are being complied with. The judge's duty will include that of reporting to the Taoiseach at intervals of not more than two years on the general operation of the Act and from time to time on any matters that the judge considers should be reported. The judge will have power to investigate any case in which an authorisation has been given. It will be for him to decide what numbers of cases he should investigate in order to determine whether the Act is being complied with. For the purposes of his functions he will have access to, and may inspect, any official documents relating to an authorisation or the application of it. Further, any person who was concerned in the giving of an authorisation or in the application for it, or has any information relevant to these matters, will be required to give to the judge, if requested by him, all the relevant information in his possession.
The result of these provisions will be that the judge will be able to select for investigation, whether at random or otherwise, any case in which an authorisation has been given, that he will be able to examine all the official documents relevant to the case and that he will be able to require any person to give him any information in his possession concerning the case. He will thus be able to trace every warrant to its source, and no official or other person will be able to object on the ground of secrecy, confidentiality or any other ground to giving him any relevant information. So the whole process will be subject at all times to scrutiny by the judge.
The designated judge will make reports to the Taoiseach and the Taoiseach will be required to cause copies of all these reports to be laid before each House of the Oireachtas. The reports will be laid in full except that, if the Taoiseach considers that the publication of any matter in a report would be prejudicial to the prevention or detection of crime or to the security of the State, he may exclude that matter from the copies of the report as laid. Before deciding to exclude any matter he will have to consult the designated judge, and every report when laid has to be accompanied by a statement as to whether any matter has been excluded from it. Apart from these formal reports the designated judge will, if he thinks it desirable, be able to communicate with the Taoiseach or the Minister on any matter concerning interceptions.
There are three other important provisions designed to strengthen the supervisory role which the designated judge will play in relation to interceptions. First, section 8 (6) provides that, if the judge informs the Minister that he considers that a particular authorisation should not have been given or should, because of circumstances arising subsequently, be cancelled, or that it should not have been renewed, the Minister shall, as soon as may be, inform the Minister for Communications and shall then cancel the authorisation. Second, there is the provision in section 2 (7) that the Minister may consult the designated judge before deciding whether to give or renew an authorisation in any particular case or in a case of any particular class. Third, section 9 (6) gives the designated judge, in certain circumstances which I shall mention when I come to deal with section 9, the function of determining whether the Minister was right in considering that a particular offence was a serious offence as defined in section 1.
Before leaving section 8 I would like to mention the differences between it and the 1985 Bill. The reference to a judge of the Supreme Court has been deleted. On consideration it has been decided that it would be inappropriate for a judge of the Supreme Court to undertake these duties. Also in the Bill, the President of the High Court will invite, after consultation with the Minister, a High Court judge to undertake the duties specified in the section. If the judge accepts the invitation the Government will designate him for the purposes of the Act. It is more appropriate that the initial invitation come from the President of the High Court rather than the Government having regard to the President's duties in regard to the allocation of business among judges of the High Court. Having regard to the duties which would be imposed under section 8 it is the intention of the President of the High Court that the designated judge would not take part in criminal trials or appeals.
Sections 9 and 10, which are to some extent interlocked and which I must admit are complicated in places, are intended to secure two objects which in the nature of things cannot be easily reconciled — hence the complications. The first object is that, although the question whether an authorisation should be issued in a particular case must be a question for the Minister's decision, it is right that a person who believes that his letters or telephone calls have been intercepted and that the Minister was not justified by the Act in authorising the interception should be able to have the matter investigated and to obtain redress if this is the case. The second object which must be achieved is that of maintaining, as far as possible, the secrecy of interceptions. It is obvious that persons suspected of complicity in crime or subversive activities should not be able merely by instituting legal proceedings to discover whether their communications have been intercepted. If this were possible, the whole purpose of authorising interceptions — that of combating crime and subversion — would be frustrated. Briefly, the solution adopted by the Bill is to provide that a breach of the provisions of the Act will not enable a person affected to take proceedings in the courts, except for a cause of action that is an infringement of a constitutional right to privacy. Instead he will be able to have the matter investigated by a legally qualified "complaints referee" equipped with all the necessary powers, including power to quash the authorisation and award compensation to the complainant.
There is a significant difference between section 9 (1) in the 1985 Bill and section 9 (1) in the present Bill. Since the 1985 Bill was prepared the High Court has held that the unenumerated personal rights guaranteed by the Constitution include a right to privacy in respect of telephone conversations and the right to hold such conversations without deliberate, conscious and unjustified interference and intrusion by servants of the State. The court said that the right to privacy was not an unqualified right. Its exercise might be restricted by the constitutional rights of others and was subject to the requirements of the common good and to public order and morality. I have been advised that, in the light of that decision, there would be a risk of a successful constitutional challenge to the Bill if it were enacted including section 9 (1) of the 1985 Bill which sought to preclude a cause of action for a breach of the provisions of the Act. I have, therefore, amended section 9 (1) as to make that provision inapplicable to a cause of action where such a breach also constitutes a breach of an individual's constitutional rights.
Section 9 also sets up the office of `Complaints Referee". In the 1985 Bill the "Complaints Referee" procedure was provided for as an alternative to a cause of action in a court for a breach of a provision of the Act. Even though, as I just mentioned, an action for such a breach where it also constitutes a breach of a constitutional right will be possible, I propose nevertheless to retain the "Complaints Referee" procedure as a simple, inexpensive and easily availed of remedy which will be open to aggrieved persons as an additional safeguard.
The holder of the office of "Complaints Referee" will be a judge of the Circuit or District Court or a practising barrister or solicitor of not less than ten years' standing. He will hold office for a term of five years and will be eligible for reappointment and while he may resign at any time, he may be removed only for stated misbehaviour or incapacity and upon resolutions passed by both Houses of the Oireachtas calling for his removal. The conditions as to when the referee may be removed from office will thus be similar to the conditions for the removal of a judge from judicial office, so the referee will be wholly independent in the exercise of his office.
Any person who believes that a letter sent to or by him, or a telephone call made to or by him, has been intercepted after the commencement of the Act in the course of its transmission, will be able to apply to the Complaints Referee for an investigation. The referee, unless the complaint appears to him to be frivolous or vexatious, will then investigate whether there was a relevant authorisation in force at the material time.
If the referee concludes that there was not a relevant authorisation in force at the material time, then he will simply give notice in writing to the complainant that there was no contravention of the Act and that will be the end of the matter. As I have explained, the referee will be concerned only with breaches of the Act and if he finds there was no authorisation under the Act there will be no occasion for him to inquire whether there was an unauthorised interception, because, if there was no authorisation, there was no breach of the Act. To require the referee, in a case where there was no warrant, to go on to inquire whether there was an interception would saddle him with the functions of criminal investigation, because, as I have pointed out, the interception would be an offence.
If, on the other hand, the referee concludes that there was an authorisation in force at the material time, then he will have the important task of investigating whether there was a contravention of any of the relevant provisions of the Act in relation to the authorisation. This means that the referee will have to investigate whether the authorisation was lawfully issued, whether the application for it was made and dealt with in the required manner, whether interceptions were continued in contravention of the Act after the appropriate authority had reported that they were no longer required and whether the Minister failed to cancel an authorisation after the designated judge had informed him that, in his opinion, it should not have been issued or renewed or should be cancelled.
If the referee concludes that there was a contravention such as I have mentioned, he will notify the applicant in writing of his conclusion and make a report of his findings to the Taoiseach. He will also have extensive powers to order redress for the applicant. He will have power to quash the authorisation and direct the destruction of all copies of the communications intercepted pursuant to the authorisation; and owing to the definition of "copy" in section 1 such a direction will apply also to any transcript, extract or summary of a communication or any tape on which it is recorded and to any record of the identities of the parties to the communication, for example, an envelope in which an intercepted letter was sent. Further, the referee will have power to recommend that the applicant should be paid a specified sum by way of compensation for the wrong done to him in having had his communications intercepted; and the Minister will be required by the section to pay the compensation recommended. Any notification to the applicant or report to the Taoiseach will have to state the effect of any order made by the referee such as I have mentioned.
Section 9 includes a special provision — this is in subsection (6) — in relation to the question whether, in the case of an authorisation for the purpose of criminal investigation, the offence in question is a "serious offence" within the definition of that expression to which I referred earlier. The Minister will not be empowered to give an authorisation unless he considers that the offence is a serious one. That is to say, it will be for the Minister, after considering the facts and circumstances, to make a judgment as to whether this is the case. It is an essential feature of the scheme that the Minister should be entrusted with the duty of making the judgment. However, subjection (6) provides a special safeguard in order to enable a person whose communications have been intercepted to have the advantage of an independent judgment on the question whether the offence in question was a serious offence. If the referee considers that, although there was no contravention of the relevant provisions, nevertheless, in spite of the Minister's opinion, the offence in question was not in fact a serious one, then he will refer the question whether the offence was a serious one to the designated judge for his determination.
If the designated judge agrees with the referee that the offence in question was not a serious offence, the referee will act as if he had concluded that there had been a contravention of the relevant provisions of the Act; and this will include the power to make a binding recommendation that the applicant should be paid compensation. If the designated judge disagrees with the referee, that is to say, if he agrees with the Minister's opinion that the offence was a serious one, the referee will simply, in accordance with the scheme of the section, give notice in writing to the applicant that there was no contravention of a relevant provision of the Act; again he will not say whether there was an authorisation or an interception.
Like the designated judge under section 8, the referee will have access to all the official documents relating to a relevant authorisation and the application for it and be able to inspect the documents; and again, as in the case of an investigation by the designated judge, all persons who were concerned in, or have information relevant to, the giving of an authorisation or the making of the application for it will be required to give the referee, on request by him, any information in their possession relating to the application or authorisation.
Section 10 may be regarded as complementary to section 9 in the sense that it restricts the possibility of making use of legal proceedings, criminal or civil, for the purpose of discovering whether an authorisation of an interception has been issued or an application for an authorisation has been made. To impose such a restriction is, in the Government's view, clearly justified because of the need in the national interest to protect the secrecy of the system of interception and because the complaints procedure under section 9 fully protects members of the public from any possible abuse by the Minister of his powers under the Bill. Section 10 does not seek to exclude completely the possibility of raising in legal proceedings the question whether there has been an authorisation: its purpose and effect are to prevent such a question from being raised unnecessarily or prematurely.