Vol. 424 No. 5
I move: "That the Bill be now read a Second Time."
By way of an aside, a Leas-Cheann Comhairle, I have introduced three Bills today in the Seanad while this is the second Bill that I have introduced in this House, I wonder, in your memory, if that would be classed as a minor record?
I would venture to say that it is an unusual hat trick.
Should we break for tea?
It only goes to show that if there was a test of stamina there are those in this House who would fare better than others.
I am sure it will be remembered at the right time.
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.
The Minister's time is exhausted. However, with the permission of the House it may be extended.
I have a couple of pages to read and it would be useful to put it all on the record.
Is it agreed to extend the Minister's time? Agreed.
I am sorry for detaining the House beyond the time allotted to me but this matter goes back to 1985. There is a great deal of new material in the Bill which needs to be explained in detail.
As section 10 is fairly complex, I will endeavour to explain it in some detail. Subsection (1) relates to criminal proceedings. It provides in effect that a private prosecution for an offence consisting of unlawful interception of a letter or telephone call shall require the consent of the Director of Public Prosecutions. Without this restriction a person wanting to find out whether his telephone had been tapped might start a prosecution against an official of Bord Telecom or of the Department of Justice in the hope of compelling the accused to say whether there had been an interception and, if so, an authorisation. If an application were made to the director for his consent for a prosecution, the director would investigate the case, and would simply refuse his consent if there was no evidence of an offence whether or not there as an interception. The section would not prevent a person from issuing a summons for an offence, but he would not be able to take the matter beyond that stage and any remand without getting the director's consent.
Subsection (2) relates to civil proceedings. It applies to a case where a person might bring an action in respect of an interception which, if it took place and was not legally justified, would have amounted to one of the offences of unlawful interception in respect of which the consent of the Director of Public Prosecutions for a criminal prosecution would be required by subsection (1). The effect of subsection (2), subject to an exception, is that, if any such civil proceedings are taken, the question whether there was in fact an interception will be determined before any question can be raised as to whether there was an authorisation. Accordingly, unless and until it is determined that there was an interception, no person who from his official duties might be concerned in, or have knowledge concerning, authorisations will be permitted to give any evidence, or be asked any question, that would tend to show that an authorisation was or was not given or that an application for an authorisation was or was not made or that proposals or steps for that purpose were or were not made or taken. Nor will the defence be permitted to make any disclosure or allegation to this effect in the action before it is determined that there was an interception.
If this preliminary inquiry fails to show that the interception complained of occurred the action will of course, fail. But if it is determined that the interception did occur the action will proceed and the result will depend on whether the interception was justified on the ground that there was an authorisation by the Minister or for some other reason. The court will, on the application of any party to the proceedings, allow any amendment to the pleadings that may be necessary in order that the question of whether there was an authorisation may be determined; this is necessary because, as I said, the defence will have been prohibited from raising this question before it was determined that there was in fact an interception.
Subsection (3) provides another safeguard against attempts to use legal proceedings for the purpose of discovering whether, for example, an authorisation has been given. The subsection provides that no person shall be compellable in any proceedings to give any evidence or information to a court or tribunal or any person which shows or tends to show that an authorisation was or was not given or that an application for an authorisation was or was not made or to be made. This will apply to proceedings of any kind and not only to proceedings directly related to interceptions. The subsection will not prevent a person from giving the evidence or information voluntarily. Whether an official possessing the information gives it voluntarily will be a matter between him and the service to which he belongs. There will be three exceptions to the rule of non-compellability under subsection (3). First, it will not apply in criminal proceedings for an offence of unlawful interception. Second, it will not apply to evidence that a person has been convicted of such an offence. Third, the information will have to be given on request to the designated judge or the complaints referee.
Although a person will in general not be compellable to give evidence or information such as I have referred to with regard to any authorisation or the application for one, a certificate signed by a person authorised by the Minister and giving the information in question will be admissible, under subsection (5), as evidence in any legal proceedings in which evidence of the facts stated in it is admissible. Therefore, if, for example, a person was prosecuted for any unlawful interception, the fact that there was no authorisation in respect of the interception could be proved by means of the certificate without the need to call formal evidence to this effect. There will, of course, be no obligation on the Minister to give a certificate, but he would naturally do so in a proper case in which evidence or the matter that would be included in the certificate could have been given orally.
Section 11 provides that all the official documents relating to an authorisation and the application for it must be retained for a period of at least three years after the authorisation ceases to be in force. This requirement will apply, for example, to documents in the possession of the Garda Síochána, An Post or Bord Telecom as well as those in the possession of the Department of Justice. The documents might be required by the designated judge or the Complaints Referee for the purposes of their functions under the Act. Section 11 will not apply to copies of material which have been intercepted. Under section 12 these will have to be destroyed as soon as their retention is no longer necessary.
Section 12 provides extra safeguards for the benefit of persons whose communications may have been intercepted. It requires the Minister to ensure that arrangements exist to limit to the minimum necessary the disclosure of the fact that an authorisation has been given and the contents of any communication that has been intercepted. The arrangements will also secure that copies of communications that have been intercepted shall not be made to a greater extent than is necessary and shall be destroyed as soon as their retention is no longer necessary. For these purposes "necessary" will mean "necessary for the prevention or detection of serious offences or in the interests of the security of the State". The adequacy of the arrangements made by the Minister for these purposes will be among the matters that will be subject to investigation by the designated judge under section 8, and the judge will, of course, under that section, have full power to inspect all relevant official documents and to question all persons concerned.
Section 13 makes a number of amendments to the Postal and Telecommunications Services Act, 1983. These are mostly technical and the only one that calls for particular mention is that contained in section 13 (2). It relates to the practice known as "metering" which consists of the mechanical recording of the making and duration of telephone calls. Section 13 (2) inserts a new subsection in section 98 of the 1983 Postal and Telecommunications Act. The new subsection makes it an offence for a person employed by Bord Telecom to disclose information such as I have mentioned to anybody else unless the disclosure is made in the circumstances specified in the subsection. Disclosure will be permissible if it is made at the request or with the consent of the subscriber; for the prevention or detection of crime or for the purpose of criminal proceedings; in the interests of the security of the State; in pursuance of an order of a court; or in the course of the employee's duty as such. I have added another circumstance to the original list, that is, for the purpose of civil proceedings in any court. This is to put beyond doubt that Bord Telecom could disclose information obtained by "metering" in, say, any legal proceedings relating to the number of telephone calls made.
Section 14 repeals section 18 of the Official Secrets Act, 1963. The latter section empowers the Minister by warrant to require the production to him of telegrams sent to or received from places outside the State. The section reproduced a section in the British Official Secrets Act, 1920, which applied to the State. The power is very wide, the only condition being that the Minister should be of opinion that production is "expedient in the interest of the State". The power under the section has never been used, so far as is remembered in the Department of Justice, and the Bill is a convenient occasion to abolish it.
At the beginning of my speech I said that the Bill takes full account of the requirements of the provisions of the European Convention on Human Rights. I will end by explaining the way in which it does that.
In 1984 the European Court of Human Rights, in the case of Malone against the United Kingdom, held that the tapping of Malone's telephone was in violation of Article 8 of the Convention on Human Rights in that the interference was not in accordance with the law. It is not sufficient that the conditions for the authorisation of interceptions are carried out on an administrative basis.
The court also held that the practice of providing the police with information obtained from metering should be regulated by law. Also of relevance is that Malone submitted to the court that there was no domestic remedy available to him for the breaches of Article 8 of which he complained and that, consequently, there had been a violation of Article 13 of the Convention. The court held that, having regard to its decision on Article 8, it was not necessary to rule on the issue of Article 13.
The present Bill takes full account of the requirements of the convention in the following ways. First, as I have explained, it sets out in detail the conditions under which the power of the Minister for Justice to authorise interceptions is to be exercised and it regulates the procedure for authorisations; as a result, interceptions will be carried out only "In accordance with the law" in the sense in which that phrase was interpreted by the court and, of course, only to the extent permitted by Article 8. Second, it ensures that information obtained from metering is not disclosed save as permitted by Article 8. Third, it provides for "an effective remedy before a national authority", as required by Article 13, for a person whose rights under Article 8 are violated.
I have taken some time but I considered it was worth while to get the full explanation of what I intended in this Bill on the record of the House. I commend the Bill to the House.
At the outset I should mention that I do not have the Fine Gael brief for this Bill and the substantive input from our party will be made by Deputy Shatter. Deputy Shatter is unavoidably absent at present, being at the Special Committee on the Solicitors (Amendment) Bill. The Deputy has been working on that all day and has therefore found it impossible to be in the Chamber at present. Deputy Shatter will make his own contribution to this Bill later on and I look forward to hearing that myself, because this matter could not be in better hands than those of Deputy Alan Shatter.
I congratulate the Minister on bringing the Bill before the House. This legislation is a particularly difficult matter for the Minister's party in so far as much of the history which led to the bringing of this Bill before the House would be a cause of embarassment, while not personally to the Minister nor to many of the Ministers in Government today, to the party in general.
The provisions of the Bill are obviously necessary. It was essential that the whole matter of the interception of telephone calls, letters etc. should be properly coordinated and controlled. This Bill sets out to do that. My party, and in particular Deputy Shatter, will be examining the Bill very carefully in so far as we produce legislation, to which the Minister referred, dealing with this issue. We will want to ensure that the parts which the Minister decided to omit and to remodel etc. are acceptable to us. We will examine it critically with a view to tabling our own amendments later. Deputy Shatter will deal with that in detail.
The background to the Bill is quite disturbing. The early eighties was an era in which we had widespread headlines on a regular basis with regard to telephone tapping and which led to great public outrage. It is clear in retrospect — it may not have been clear to anybody at the time, particularly those involved — that individual rights were infringed. The rights of individuals to carry on their lives, to make telephone calls and to write newspaper articles on the basis of what they might learn were infringed. In retrospect, it is amazing that normally sane individuals will do things in Government which are completely contrary to the purpose of Government and totally contrary to what Ministers should be doing, which is upholding the rights of the people rather than taking those rights away. A number of well known journalists suffered the consequences. In retrospect, it is clear that the interception was carried out for political purposes. It was an attempt to protect either a politician or a political party, which was a very spurious base for what was done.
The interference with the basic rights of individuals was simply to protect a political party or an individual politician under some pressure at the time, someone in receipt of fairly severe criticism from the media, much of which, it was thought, emanated from his own party. The purpose of the interception was to find out who in the party was responsible for giving the information to journalists so that those people could be dealt with. It was sad that politicians should get bogged down in underhand dealings with members of the public. The whole event, which has been well documented, led to a court case in which people had their rights vindicated and were awarded compensation.
I recall — and I am sure this is also well documented — another episode where it was not a telephone call, or a letter or postal packet that was intercepted, but an important witness in a court case in a certain part of the country was intercepted, held and not allowed to appear in court. That saga led to unsavoury things being done and to considerable public outrage. It was important that people would not accept that this type of behaviour was normal. I suggest that this legislation is a delayed reaction to that public outrage and the people's insistence that their level of intolerence did not stretch that far and that political power would have to be used in a sensitive and sensible way. That whole business was a perfect example of the gamekeeper turning poacher. It was sad to see the particular individual involved being later appointed to a very senior position in the Houses of the Oireachtas, a position which he left under rather suspicious circumstances. To be honest, the two main players in the game did seem to have something on one another, to put it colloquially.
While the main player was not convicted of offences in the court, it was well known that what he did was not acceptable and certainly he was not a responsible Minister. To appoint him to a very senior position in this Parliament was stretching things rather far. At the end of the day it did have a happy ending in so far as the dog turned on his master. By his own actions, which forced his resignation from that position which, according to public opinion, he should not have held in the first place, he turned on his master and removed him from office by spilling some of the beans he had held on to for so long. That sorry saga has led to the production of this legislation. Indeed, I congratulate the Minister on having the courage to introduce it. He had nothing whatsoever to do with the unsavoury dealing that took place in the early eighties except in so far as he belonged to the same party. Prior to that time a dangerous ethos was building up — two individuals meet in an office, one discovers that the other is in possession of a piece of machinery designed to copy what he said so that it could be used against him. Thankfully, that was brought to an end.
Having listened to the Minister's contribution and having glanced through the Bill, I imagine that it will be very difficult for what has been described as "grotesque, unbelievable, bizarre and unprecedented" to happen again. When this Bill is enacted it will be quite difficult for individuals to come together and, by subterfuge or otherwise, misuse the powers which Ministers have in this respect. On a superficial reading of the Bill I note various checks and balances which may have existed in some form or other previously but which certainly did not exist in legislation. This means it will be much more difficult for people to step outside their powers. In future whenever interceptions are proposed the procedures that will have to be followed will ensure that they will be done for a proper purpose, clearly identified in the Bill.
The Bill provides that the only purposes for which interceptions may be authorised will be those of criminal investigation or the security of the state and it goes on to deal in detail with them. In his contribution the Minister gave a full briefing on what was meant by the terms the "security of the state" and "criminal investigation" The Bill deals also with the kind of criminal investigation that can be the subject of interception. In relation to the security of the State, quite obviously with a private army on the prowl we must be in a position, at all times to gather information from all sources, both in this and the other part of the island, to enable us to defend the security of the State, which is at risk.
We live daily with this illegal private army. All political parties in this part of the island do not and have not at any stage given their support to the members of that private army nor do they approve of its existence. We tend from time to time to be a little complacent about this. It would be quite easy for a number of people to take over this House. There could be a very simple coup. That may not be as easy as it appears to me but there is a danger of becoming too complacent. If we adopt the attitude that we know everything that is going on, that we have a great deal of information, we might get lazy and not be as vigilant as we should. As there is a private army operating on this island we must be very vigilant. I agree with the Minister that the regulations governing matters pertaining to the security of the State must be given priority in this Bill.
I am pleased that the right of individuals to their privacy, and so on is protected. Section 9, which deals with the complaints procedure, provides that members of the public who suspect they are under surveillance may make a complaint. The complaint will be referred to a referee, another party who can be involved. This new check that has been introduced into the system is welcome. The more people involved in this procedure the better. This assists us in ensuring the system will be fair and will be used for the purpose for which it is intended. The complaints procedure is good. The role of complaints referees are well defined in this Bill. We will examine them to see if they need to be amended.
I welcome section 8 which deals with the appointment of a High Court judge to review the operation of the Act. That is a good, honest and secure way of ensuring we will not go astray as we have in the past.
I admire the Minister's courage inbringing forward the Bill. It took a long time for it to come before the House. The Minister had no direct involvement in the events that took place in the eighties which outraged the public and created a demand for this legislation. We will have an opportunity of having a full and frank discussion on this Bill. We will be able to examine it in great detail to ensure that its provisions will be effective.
I look forward to hearing Deputy Shatter and I am sure he will give an in-depth analysis of the Bill.
The Minister outlined the aims and objectives of this Bill in his speech. He summarised its provisions very neatly. The Minister said:
"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."
That encapsulates the purpose of the Bill.
The explanatory memorandum also gave details of the purpose of the Bill in simple, clear and concise language. It states:
The Bill sets out in detail the procedure for applications for and issue of warrants authorising interceptions. The procedure is similar to that followed at present. But in addition the Bill introduces two new provisions for controlling the exercise of the powers of the Minister for Justice in respect of these interceptions.
The new sections are sections 8 and 9.
In my opinion, the Bill is more remarkable and important in regard to what it omits rather than what it contains. I will give some examples of those omissions. It is impossible to debate this Bill without referring at the outset to the recent incident involving the apparent bugging of the telephone of the Leader of the Fine Gael Party, Deputy John Bruton.
That is correct.
Deputy John Bruton's telephone conversations with Deputy Noonan and Senator Manning were recorded without his knowledge or consent and were subsequently published in a number of national and local newspapers. It is essential that this House, and the public, be informed of the progress of the investigation into that case. From information available to me, it is clear that there was more to that incident than meets the eye. At the very least, I am satisfied that this was not a random, accidental once-off incident. Given the manner in which the telephone was bugged, the number of telephone calls bugged at that time and the amount of time and distances involved in the case, it is clear to me that this was not a chance, casual encounter.
We need answers to questions that this case throws up. Was this bugging part of a pattern? Was it carried out by professionals on hire, and if so, who hired them? Was it carried out as part of an exercise in the gathering of political intelligence, and if so, by whom and for whom? Can we be assured that whoever did this is not still employed for that purpose? These disturbing questions must be answered before one can be happy that this Bill will deal adequately with abuses in this area.
The Bill is aimed at curbing, controlling and monitoring the power of a Government Minister. The first question that must be asked about the Bill is, will it curb the power of amateurs and professionals, who are not accountable to anyone, to invade individual privacy? At present, no authorisation is required either by a private individual or the gardaí for the planting of a bugging device. I fail to understand why this legislation fails to address this very critical issue and the questions I have posed. This is one of a number of major flaws in the Bill and I hope it and other matters can be dealt with through debate on Committee and Report Stages.
If we are going to take seriously the issue of "informal" tapping of telephones, we need to do more than pass laws: we also need administrative and structural changes. For example, there is a range of tapping equipment and technology now available, which can be bought or sold without any need for registration or licensing or any other qualifications.
That is correct.
This equipment can be used to tap mobile telephones, to listen to conversations taking place in distant rooms, to replicate the software that is built into mobile and other digital equipment and so on. It is possible, for instance, for anyone with access to relatively simple technology to clone a mobile telephone — to copy its software so completely that all calls on one mobile telephone will automatically be treated as if they were made on another telephone. It should also be pointed out that all calls made on the cloned telephone will be billed to the original telephone. We have seen a good deal of expansion, indeed an explosion, of technology in this area. This is not confined to the bugging of politician's telephones. Similar devices are also used in industry. We have heard about industrial espionage in recent times. The fact is that private detectives all use the type of bugging devices I have described. However, the Bill does not deal with this issue. This is one of its major flaws and deficiencies. The Bill is about ten years out of date and it does not deal with any of the abuses I have outlined for the House.
The availability and extent of the technology I have described is such that a proper licensing system is needed. It should not be possible for individuals or companies to buy or sell logic, scanners and other pieces of sophisticated equipment without registering all such equipment so that the authorities know who owns, controls and has access to it. It is not necessary to set up a bureaucratic structure to deal with this issue. I believe the remit and resources of the Data Protection Commissioner should be extended to enable him to take control of this aspect.
Did the Minister and his officials examine the equipment to which I have referred when drafting this Bill? Are they aware of the explosion in terms of the sophisticated machinery and technology now available? If they are, this should have been included as a central part of the legislation. The exclusion of this machinery from the Bill is like talking about a mint with a hole. One cannot talk about bugging, telephone tapping and the interception of mail without making provision for the abuses I have described. This Bill will be flawed and irrelevant unless it sets to deal in detail with the ease with which privacy can be invaded in modern Ireland.
The Bill also fails to take account of modern technology in the section dealing with the interception of mail. The Bill requires the Garda to obtain a warrant in order to intercept mail by opening an envelope. This section does not take into account the scanners which can be used to read the contents of a letter without opening the envelope. Again, I do not understand why there is no provision in the Bill in regard to this type of equipment which is fairly well known to people outside the House.
The Bill does not deal with that matter.
It should deal with the matter.
It is the responsibility of another Minister.
This Bill deals with the interception of mail. Mail can be intercepted in the way I have described and the contents of a letter read without opening the envelope. The Bill is flawed in this respect. I am sure my colleagues will also take up this point. I intend to table a series of amendments on Committee Stage to rectify this omission.
The Bill is flawed in a number of other respects. First, the power to authorise a warrant should be vested in a judge of the High Court, and not in the Minister, in order to safeguard against abuse. Second, an annual report should be made to the Dáil and to the Taoiseach. It is not necessary, for obvious reasons, for persons against whom warrants have been authorised to be named in such reports, but the Dáil is certainly entitled to receive copies of these reports. Third, the Bill, as drafted, appears to allow taps to be placed on the telephones of persons with whom criminals might be in communication as well as on the telephones of suspected criminals. It is widely known that at least one journalist believed his phone was tapped because of the possibility that he might be having a conversation, for journalistic reasons, with suspected terrorists. Unless a person is suspected of a serious crime or of being a threat to the security of the State, no authorisation should be given to tap his telephone. The Bill should provide for this more clearly than it does at present. Fourth, like previous legislation, this Bill is silent on the question of people who record their own telephone calls. It should be illegal for any person in the State to record their telephone conversations unless the person on the other end of the line is specifically made aware that the conversation is being recorded.
Exactly.
People who speak off the cuff during a telephone conversation can find out afterwards that the person on the other end of the line had recorded the conversation. That should not be allowed, and the Bill should provide accordingly.
I welcome the provisions in regard to the appointment of a complaints referee. It has been said that many telephones were tapped in the past by all sides. One wondered whether these complaints were frivolous. Sometimes people of social status claimed their telephones were being tapped. I hope the complaints referee will not have to deal with a rash of frivolous and vexatious complaints about telephone tapping; he could become bogged down in dealing with such complaints. I hope that common sense and intelligence will be the order of the day in this area and that where there is abuse it will be investigated thoroughly by the complaints referee. The major failing in this legislation is that it contains no specific reference to the interceptions and buggings to which I have referred.
I am pleased the Minister referred to the provisions of the European Convention on Human Rights. It is important in the context of legislation such as this that we do not act in isolation from our partners in Europe. We need to look at the provisions in similar Acts introduced in other countries. Most of these countries have larger populations and more experience of crime and subversion than we have — although we have far more crime and subversion than we need — and we could benefit from their experience.
I am also pleased that the Minister referred to the well known case of Malone v. United Kingdom. The decisions reached in that case were very important and I am pleased the Minister has taken account of them in this legislation. It is important that we look at the legal systems in other countries and see how they deal with crime and threats to their security.
Of course, all the safeguards and monitoring measures in the world will achieve nothing unless the Minister and Government are honest and have integrity. I believe this legislation is based on our having an honest Minister and an honest Government. If this is not so, all our efforts in this House will be set at nought. Unfortunately, as we saw in the Bruce Arnold and Geraldine Kennedy cases ten years ago, party political considerations can often override legal constraints. As we all know now, there was no justification whatsoever for tapping the telephones of these two journalists. Unfortunately, the Garda were also involved in this affair. This was a great mistake and a great tragedy for the gardaí concerned. The Garda should never allow themselves to be exploited or compromised or act illegally.
Deputy Cotter outlined the history of that case at some length. There is no point in going back over the case; it is water under the bridge and all the talk in the world will not undo the harm done on that occasion. As public representatives, all of us, especially the Minister and the Government, have a responsibility to act with integrity and honesty. If the Minister does not have integrity how can we expect ordinary citizens to have integrity? It is totally unjustified to invade the privacy of any individual, including journalists. Let us hope we have seen the last of these cases. Reference has been made to the bugging of a telephone conversation between Deputy Noonan and Deputy Bruton. I am interested in seeing the outcome of this case, but I hope we will hear no more about such abuses and malpractices.
I am pleased that this Bill has been brought before the House. Indeed I wish it had come before us much earlier than now; many people, including me, have been looking forward to its introduction. I hope it will be discussed in detail and in an intelligent way by Members on all sides of the House. I hope abuses similar to those I have mentioned will not occur again. As I said, the Bill has a number of flaws and omissions, and I look forward to dealing with them on Committee and Report Stages.
In general I welcome this Bill, except that clearly there are circumstances where in tackling crime and subversion it is necessary for the security forces to intercept telephone conversations and mail and to assemble the intelligence and the evidence necessary effectively to tackle crime generally and subversion. The issue is whether the Bill is likely to be effective and whether it will provide the kind of safeguards the public need to ensure that there will not be abuses against individuals, that the rights of individuals are protected and that there are sufficient grounds in place to warrant the intercepting of telephone conversations or of mail communications.
I agree with Deputy Kemmy that it is regrettable the opportunity was not taken in this Bill to deal with contemporary problems with regard to the interception of conversations on mobile telephones and the use of scanners in relation to mail. These issues need to be addressed. Perhaps it is a commentary on the fact that this Bill is a product of circumstances which arose ten years ago that these issues have not been addressed. It is very regrettable that the public concern which has given rise to the emergence of this Bill is related to the abuse of the power of telephone tapping, mainly for political purposes and for the gathering of political intelligence. We must ensure in this legislation that this kind of abuse will not arise in the future.
I accept fully that there is a necessity for the State to tackle crime by means of telephone tapping and the interception of mail. The gardaí have many times complained that it is becoming increasingly difficult to assemble the evidence necessary to obtain a conviction in court. If this Bill helps to curb the escalating crime problem it will be worthwhile, particularly if it is useful in combatting elements of organised crime who are involved in drug trafficking which is destroying individuals and communities and destroying hope among young people. That type of crime is organised on a highly sophisticated basis. The Bill will also be worthwhile if it helps to tackle the plague of armed violence which we have had for nearly a quarter of a century, involving the killing of our fellow citizens for allegedly political purposes. Sophisticated organised crime, whether of the general criminal variety or of the subversive variety, requires sophisticated measures to deal with it. I have no hesitation in supporting the use of these measures in combatting that type of crime.
I am concerned that the boundary in tackling crime and subversion may be extended somewhat by some Minister or Governments. The term "security of the State" has been used extensively and quite loosely in the past. The justification offered for the telephone tapping of journalists was an illegal concern about the security of the State. There was an implication that journalists were acting on behalf of foreign Governments and so on. It is possible to use a term like "security of the State" in a very loose way which was not originally intended. In Britain in the course of the miners' strike in the early eighties the then Prime Minister and some of her Ministers saw the National Union of Mineworkers as posing a threat to the security of that State. During the protests in this country relating to taxation when large numbers of people took to the streets, there were claims and hints that in some way this was a political strike which involved some threat to the security of the State. We must be very careful about the way in which the term "security of the State" is interpreted. Certainly it must be interpreted in a way that is opposed to subversion and the use of force, but it should not involve the use in a backdoor way of the measures provided for in this Bill against legitimate political activity, trade union activity or agitational activity of one kind or another. If that happens it will seriously undermine what should be the intent of this Bill.
The Offences Against the State Act, which was introduced specifically to deal with the problem of subversion, is being used increasingly in a loose way. In some cases people are arrested under the Offences Against the State Act when it is clear to everybody, including the gardaí making the arrest, that there has not been an offence against the State. It is a handy vehicle to obtain an arrest and to detain people. When this legislation is enacted and implemented we must be careful that it is not used in a way that would undermine it and allow it to become a vehicle of abuse. We should not forget that it was a form of political abuse in relation to telephone tapping which gave rise to this legislation.
There is a number of areas of concern in this Bill which we will have a greater opportunity to address on Committee Stage. I am concerned about some of the mechanisms for obtaining an authorisation to intercept. In particular I am concerned that the Defence Forces are to be given the power to initiate the procedure. In legislation of this kind the initiation of the procedure should be reserved to the Garda. It may be that circumstances will arise when Army intelligence may have to obtain information through these means. They should be required to go through the Garda and a procedure should be established for that rather than that they should have the power to initiate the procedure. There is a very clear distinction that has to be drawn here between the role of the Defence Forces and the role of the Garda. I am quite concerned that under this legislation an Army officer above the rank of colonel will have the power to use this legislation to seek and obtain a telephone tap on, perhaps, members of the civilian population. I do not think that should be permitted. The mechanism for that should be through the Garda Síochána.
I appreciate that there are a number of measures included in the legislation to provide for accountability, including the provision that a High Court judge may review the operation of the legislation, provision for the appointment of referees and provision for a complaints procedure. While there are some details of those procedures which I would like to raise on Committee Stage, I think they are very welcome. However, I wonder if they go far enough. Deputy Kemmy quite rightly made the point that the report of the High Court judge should be made to this House rather than directly to the Taoiseach. I would agree with that. There are matters which should be included in a report and there should be a regular report on the operation of this legislation. There must be transparency and accountability. I am not suggesting that we should have a report which lists everybody whose telephone is being tapped. Quite clearly that would be nonsensical and would defeat the whole purpose of the exercise. However, it would be helpful if we had a report on an annual basis setting out the number of interceptions, the number of authorisations which have been issued and some general breakdown of those — for example, the number of those that related to criminal activity generally and the number that related to the issue of the security of the State. That would be very useful. It would be an important safeguard as well for the public. For example, when the numbers dramatically increase under a particular Minister for Justice they will be able to see that it may not be entirely due to that Minister's predeliction for tackling the problems of crime but may be due to a kind of "Hiace van" phenomenon. Those kinds of precautions are necessary in order to give the public some comfort in that area.
I agree too with the point made by Deputy Kemmy in relation to the protection of privacy. I would urge the Minister when we come to Committee Stage to give consideration to Opposition amendments in this area. Deputy Kemmy mentioned the case of the Fine Gael leader and speculated as to what may have been behind the tapping and the publication of his particular conversation. There was also much concern expressed in this State about the tapping, apparently by a private individual, of a private telephone conversation of a member of the British Royal Family. I would not normally come into this House and concern myself a great deal about the British Royal Family. However the concern it raised — certainly in me and in many people in the State — related to the possibility that private individuals out there may be tapping the telephone conversations of other people. Quite clearly that is a very serious invasion of the privacy of the individual. I know the Minister, in responding to the points made by Deputy Kemmy, seemed to suggest that this really was a matter for his partner in the "country and western alliance", the Minister for Communications. I do not know if I would agree entirely with that distinction. I do not care which of them is still here as a Minister after 1 January——
1 November.
What I would like to see is legislation aimed at protecting the privacy of individuals and the privacy of citizens in an era of very sophisticated telecommunications when we have sophisticated methods of intercepting those communications. Individual citizens have a right to the protection of their privacy in that area and that should be addressed.
The Bill certainly does address the use of interception by the State. It certainly does provide for a procedure whereby the organs of the State have to go through a particular procedure in order to intercept a telephone call or a letter. It provides certain precautions — perhaps not sufficient — to protect the rights of individuals in that area; but it should go that step further and deal with the illegality of private citizens or groups of citizens interfering with and intercepting the private telephone calls of individuals. We have had many examples of it over the years. We had an example a couple of years ago when it emerged that the owners or managers or a particular company managed to tape a meeting of its employees. Perhaps the Minister of State, Deputy Kenneally, might have some recollection of this. That type of thing must be prevented and the public need to be protected from it.
I have no doubt, a Leas-Cheann Comhairle, that we will dwell in greater detail on these matters on Committee Stage. However, I would ask the Minister, when we do come to Committee Stage, to be willing to consider amendments which are aimed at extending what is generally a very good piece of legislation.
Like other speakers, I give a qualified welcome to the Bill. However, it is somewhat out of date before it comes before us at all. This Bill draws its inspiration from a similar Bill published by Fine Gael when in Government in 1985. That was some years after the incident that triggered off the need for it. This now is several years later 1985 and we are now talking about legislation that should have been introduced ten years ago. The legislation now being introduced is late and does not go nearly far enough towards curbing the problems that have just been outlined by my colleague and by the two speakers on my right. I know the Minister will say that this is the responsibility of another Government Department. Frankly, I do not care what Government Department it refers to; this is a matter that should be tackled.
Let me deal first with what is not but should be in the Bill. I refer to the situation whereby a person can obtain a scanner device and eavesdrop on classified telephone conversations between members of the security forces and between members of the Garda Síochána, etc. This happens very often. Indeed, in the not too distant past, in respect of a certain criminal gang, a "sting" was arranged in the Dublin mountains but with the aid of modern technology the gang were able to blow the cover long before the trap could be sprung. This is a clear indication that there is a need to introduce legislation to curb the availability of such technology.
I brought this matter to the attention of the Minister and his predecessor. Indeed, it has been well aired here in recent years. I agree entirely with those who say it is wrong that people should be able to buy technology which would allow them to listen in to somebody else's telephone conversations. I resent the fact that some smart alec can buy sophisticated technical equipment which is freely available within this country and listen into telephone conversations while driving in his car. For some unknown reason no reference is made to the illegal scanning of telephone conversations in this legislation. I am most disappointed therefore that the Minister has not availed of this opportunity to influence his colleagues in Government as to the need to bring forward legislation to make this activity illegal.
Let me now turn to the inspiration for this legislation. I have no desire to make political capital out of this matter or to go through all the events that occurred in 1982 but they lead to this legislation. I would like the Minister to explain the reason it will not be a criminal offence if one of the parties involved agree that their conversation should be tapped. I fail to understand why this should be the case. In other words, if I decide to hold a telephone conversation with another Member and one of us agree that the telephone conversation should be intercepted it will not be a criminal offence if at some future date an investigation takes place. The unfortunate individual at the other end of the line is entitled to know whether that telephone conversation is being intercepted. I would resent any of my telephone calls being intercepted. Indeed, we have often got the impression that our telephone conversations were being tapped. However, there is no necessity for people to have to have modern technology to record telephone conversations.
I accept that there are circumstances where it is necessary in the interests of the security of the State to tap certain telephones and there is a proper procedure to do this. This happened previously within the State. Reference has been made to the fact that the telephones of journalists were tapped in the seventies in the interests of the security of the State on the basis they had made contact with subversives. I have no evidence of this but if a person had made such contact I agree that in the interests of the security of the State their telephone conversations should be intercepted.
The same principle applies in the case of criminal investigations relating to the people to whom Deputy Gilmore referred. No stone should be left unturned in dealing with highly organised and mobilised criminal gangs who are well versed in the use of modern technology. One should have no difficulty in obtaining permission to tap their telephone conversations if it is believed that they are in the process of organising a crime. People in a liberal society cannot expect to be able to combat these forces, having regard to the developments that are taking place in technology, unless they resort to using some of this technology.
The Bill makes too many references to the need for authorisation for legal tapping while making no reference to the unauthorised interception of telephone conversations which happens regularly. Some time ago an individual was able to give me details of a series of conversations which had taken place between people known to him on mobile telephones, including the subject matter and the location of the person at the other end of the line. It was possible to gather from this information the name of the person concerned. He pointed out to me that there was a necessity for legislation in this area. I fulfilled my duty and raised this matter on numerous occasions by way of parliamentary question. However, I never received a satisfactory response. There was always some reason it was not possible to introduce such legislation; for example, another Minister was responsible and other legislation had to be introduced first but, all in all, the response has been most unsatisfactory.
It is now possible to have an open broadcasting system. Under a CB-type system it is possible for all and sundry to listen to telephone conversations. While this may be illegal such equipment is available within the country. I have no objection to the use of such equipment for the simple reason that one does not have to pay a fee to use it as this service is not provided by a State or semi-State body. The technology exists to enable people eavesdrop on telephone conversations.
Indeed, it is also possible to lock into an ordinary household telephone. Using mobile equipment all a person need do is pass close by the location of an ordinary fixed household telephone and lock in to the system to make telephone calls. That is not covered in the Bill. If people are able to do this there is no reason they cannot lock into the system to eavesdrop on conversations.
A criminal robbery took place approximately 18 months ago when an organised gang had staked out the Garda at least as well as the Garda had staked them out and used modern, technical equipment to do so. The Minister and his Department will know the circumstances and occasion to which I refer. It is not that such things do not exist, they do, and there is a crying need for attention in that area.
The next point I want to make was made also by Deputy Gilmore, that is, how the public mind wants to be titillated by snippets of private conversations. It may be connected with the British Royal Family today, perhaps between the Taoiseach and somebody else the next day and so on. Quite frankly, it is none of their business; it is as simple as that. It is a criminal offence to publish such conversations, but for some unknown reason nobody ever appears to pursue that. Perhaps the reason is that the people who are hounded and afflicted by that type of activity may feel they are in no position to pursue its perpetrators. Obviously, the British Royal Family will not take legal action to pursue people who publish their telephone conversations or whatever the case may be. Indeed, I do not even know that it was members of the British Royal Family who were overheard recently at all, but somebody suggested it was. What action can they take to protect themselves? What action can people take in this country at present to protect themselves in this respect?
It all appears to be fine when it is politically acceptable, when the snippet of information is sufficiently intimate to add a little spice and draw a newspaper headline a couple of days afterwards. However, I must sound a warning note that there will come a time when something really serious will occur which will be intercepted or overheard by somebody with a criminal intent. Then everybody, Ministers included, will wake up to their responsibilities and realise that had action been taken in time in this area they might have averted a tragedy. I referred already to the "sting" that was set up in the Dublin Mountains a couple of years ago but which did not come off because of the technology available. Who knows but that at some future date somebody's life may be at stake resulting from lack of action in that area. The points I and other speakers have raised should be sufficient to enable the Minister and his Department to take whatever action is necessary to ensure people's rights are not eroded.
I have no objection whatsoever to the surveillance of criminals. In this respect I do not go as far as some of my colleagues in that I contend that because of the nature of their occupation, which is the erosion of other people's rights, their rights are not as great or in such danger of erosion as those of the innocent private citizen. If such people engage in organised crime they do so for a purpose. I know there may be many liberally minded people who would not agree with me in that. Unfortunately, whether we like it or not, in view of the way crime is growing here at present, unless the problem is recognised and rectified in this House, somebody somewhere outside will decide it for us.
I have no objection whatsoever to the provisions of the Bill in regard to the security of the state, which matter has already been well covered by other speakers. However, I must reiterate that I strongly resent anybody having available to them the means of listening to somebody else's telephone conversation — for which, mark you, they do not pay. They have no right whatsoever to do so; it is just the same as opening somebody else's post. While it might be very interesting for them and be grand to talk about around the fire on a winter's evening or in the public house, it is none of their business and is an offence. The comments of the various Members who have spoken on that subject this evening should be a sufficient warning to the Minister to take immediate action.
Recently some considerable interest was shown in a telephone conversation between my party leader, some of his Front Bench colleagues and others. I was amazed at the interest shown in that conversation. Generally speaking, I am sure politicians did not take a great deal of interest in it because it did not appear to involve or disclose a great deal of informative material to me or to any other politician. Nonetheless it did one thing: it illustrated that something was lacking in a system which allowed somebody to intercept such conversations. Such people can do so whenever they want. As we sit here there are people doing just that now — listening to other people's telephone conversations, some of a sensitive nature, others of a business type. There has been reference already to industrial sabotage and so on. That whole area needs to be examined. While that intercepted telephone call between my party leader and others might have been laughable from the point of view of those who might have wanted to take a swipe at members of the Fine Gael Party — I am not saying it was anybody here — it could be somebody else's turn tomorrow when it might not be laughable at all. My philosophy is: there, but for the grace of God, go any of us.
I would appeal to the Minister to use his influence with his Cabinet colleagues. I am not too concerned which Minister assumes responsibility, but let whoever does take quick action in that area. I predict that, if they do not, there will be an inquiry at some future date when the question may well be posed: why was action not taken to curb the use of illegal devices, known to be readily available and used regularly by criminal elements? Why was action not taken and who was responsible?
I welcome this Bill. It is particularly to be welcomed because some of the events that might have attracted the attention of a person with a particular political interest would have been those occurring in the overall area of telephone tapping over the past decade or so. Much concern has been expressed in regard to interception of such normally private telephone conversations. The general public will perceive the introduction of this Bill as a welcome step in establishing a framework for authorised interception, clearly setting out how such authorised interception will operate. The provisions of the Bill deal ably with unauthorised interception, much to be welcomed also. Of course, we all recognise that in the general area of communications there have been huge developments over the past decade or so. While the telephone network may not necessarily have changed enormously in that the message still comes across by cable, the actual instrument and ancillary instruments, such as fax machines and others, have reached new heights of sophistication. We have witnessed here an enormous increase in the use of such communications systems, computers and so on.
The previous speaker referred to a number of matters, including the use of mobile telephones and the interception of private telephone calls via these telephones. Those who use mobile telephones, whether they be totally mobile or car phones, are usually asked by the receiver of the call "what number are you at? I will ring you back." It is my understanding that these small instruments cost in the region of £1,000, plus whatever back-up equipment is necessary such as power packs, charges and so on, probably bringing the cost to £1,300 or £1,400. Having paid such a price for these phones people should be allowed use them satisfactorily. This is a matter that should be addressed.
Because of the range of technical equipment available it is easy to obtain sophisticated telephone tapping equipment, which is on sale in a number of outlets. A constituent of mine brought this matter to my attention recently when, within a couple of days of making a private telephone call, he was advised that the call had been tapped illegally. The equipment used, which was purchased in Ireland, cost in the region of £20 to £25. There are many devices designed in such a manner that they will not interfere with the telecommunications network. I have one such item in my own home, a baby listening device which plugs into the electric sockets in the house. Although it is not designed to do so, this device has on occasion picked up conversations from the telephone in my own house, from an adjoining property and from radio cab units. There is much that needs to be addressed in regard to the equipment that is available and its use, intentional and unintentional.
I welcome the provision of a framework for the official interception of telecommunications and postal packets We are also providing severe penalties for unauthorised interception. I would welcome a detailed reply from the Minister on sections 84 and 98 of the 1983 Act. I would like him to tell us the number of times that Act was implemented and the number of prosecutions that ensued from such implementation. As regards the penalties for interception. I welcome the introduction of a fine of up to £50,000 or imprisonment for up to five years or both. That is a step in the right direction.
The Minister indicated that authorised interceptions will take place only on ministerial warrant, and that is to be welcomed. The operation of the Act is to be kept under review by a judge of the High Court and a legally qualified referee will be appointed to investigate complaints of improper authorisations by the Minister. The Minister stated:
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.
I believe that nobody in this House would disagree with those comments of the Minister.
The unauthorised interception of letters and the telecommunications network has taken place for many years but we do not know to what extent interception takes place. I have no doubt that in drafting the legislation the Minister undertook a number of matters, including research into the whole area of interception and the extent of the activity that has taken place to date. Is it within the Minister's ambit to restrict the sale of devices used at present for interception, particularly in the area of telecommunications and developments of that network, such as fax machines and computers?
The previous speaker made the point that media attention was focused in the recent past on the unauthorised interception of telecommunications when a journalist quite easily picked up, via a car telephone, the conversation of a senior politician and that conversation was reported verbatim in one of the national papers. A similar incident took place in the UK in regard to a member of the Royal Family. I wonder whether a family in that position would be prepared to challenge those who made the unauthorised interception of the telephone calls. I would like to know what research has been undertaken by the Minister into the unauthorised interception of the senior politician's mobile telephone and into the whole question of interception. Is the Minister aware that there are people in private industry selling facilities to intercept any type of communications and post and that these services are being advertised in a number of journals on the Irish market? Will the Minister have any powers to address the area of advertisements of this kind?
One other issue which has been brought to my attention is perhaps a matter which should be more appropriately addressed to the Minister for Tourism, Transport and Communications, who has just come into the house for Private Members' Business. The shortage of necessary infrastructure for our telecommunications network is causing complications in relation to crossed lines and easy interception of telecommunications.
