CHECK AGAINST DELIVERY
Topical Issue Debate
17 May 2015
‘Allegations of phone tapping by An Garda Síochána’
Tánaiste and Minister for Justice and Equality, Frances Fitzgerald T.D.
I am grateful to the Ceann Comhairle for providing an opportunity to address this matter this evening. While recent reports have alleged certain abuses in the interception of communications, it would be quite wrong to suggest that it has been established that there has been widespread abuse of the interception system.
While the reports are not specific as to the timeframe for these allegations, insofar as it can be established, I understand that they relate to the early-2000s.
It would, very plainly, be a matter of concern if there were any abuses of the system for intercepting communications. The notorious improper interception of journalists ‘phones in the early 1980s led to the current legislation which contains strong safeguards to ensure that the system of interceptions is operated properly.
The interception of ‘phones is governed by the Interception of Postal Packets and Telecommunications Messages (Regulation) Act of 1993. This Act sets out clearly and in detail the arrangements in place by which an interception may be given effect.
While time is short I think it is important that the House has a full understanding of the multi-layered checks and balances in the system.
I would note first for the House that a Minister for Justice cannot initiate a warrant and can only act on applications made to them, and a Minister for Justice does not and would not have any access to the content of any interception that may be made.
In summary the 1993 Act provides that:
- only the Minister for Justice and Equality may grant authorisations to intercept communications and
- only on the basis of a reasoned application from one of three persons
- the Garda Commissioner,
- the Defence Forces Chief of Staff or
- the Chairperson of GSOC, and
- only for the purposes of the investigation of serious crime and in the interests of the security of the State, and
- only when a number of strict tests that are set out in detail in sections 4 and 5 of the Act are satisfied.
In respect of serious crime, these conditions are that an investigation is being carried out into a serious crime or to prevent a serious crime and that investigations not involving interception have not and are unlikely to produce the necessary information or evidence and that interception is likely to do so, and that the importance of obtaining the information justifies the interception notwithstanding the interference with privacy.
In respect of protecting the security of the State, these conditions are that there are investigations being carried out, based on a reasonable belief there are activities going on that endanger the State’s security and that investigations not involving interception have not and are not likely to produce the necessary information or evidence and that interception is likely to do so, and that the importance of obtaining the information justifies the interception notwithstanding the interference with privacy.
In addition, as a further check, all applications must be considered by a senior officer of the Department before being submitted to the Minister to ensure that the conditions set out in the Act are satisfied.
Furthermore, all applications from the Chief of Staff of the Defence Forces must also be recommended by the Minister for Defence before submission.
Given the seriousness of these powers the Act provides independent oversight by a serving Judge of the High Court designated for this purpose. The Designated Judge must report to the Taoiseach at least once a year on the operation of the Act. Those reports, which are laid before the Oireachtas, through the years have confirmed that the Garda and Army authorities have been in compliance with the Act.
There has been some adverse reflection on the work of the Designated Judges which I must say is utterly ill-founded. One should not underestimate for a moment the importance of the constitutional independence of the Designated Judges or, indeed, the considerable experience and abilities of the individuals who have carried out that role with distinction. The Designated Judge has full powers of access to all relevant persons and documents and there is a corresponding obligation in law on all relevant persons to co-operate with the judge.
The current Designated Judge is Ms Justice Marie Baker. I understand that she is aware of the matters in question as they were raised with her by the Garda Authorities. It is, of course, a matter for her to decide what action she will take in respect of these matters and it must be emphasised that she is fully independent in carrying out her functions under the Act.
There is a further safeguard in that there is also a Complaints Referee, who is also a serving Judge, and if a person believes that there has been a breach of the Act in their case they can make a complaint to that Judge who has full powers to investigate it.
In broader terms, I would note to the House that I am currently working on proposals to extend the interception regime to more modern forms of communication, particularly in the light of threats posed by organised crime gangs and terrorist groups. When the House has a chance to consider new legislative proposals, obviously all issues which arise in this very important and sensitive area can be looked at afresh.