Mick Wallace (Wexford, Independent)
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3. To ask the Minister for Justice and Equality his views on whether there is adequate external oversight and monitoring of Garda covert surveillance; the steps he has taken to address the level of internally authorised surveillance by gardaí under section 7(3) of the Criminal Justice (Surveillance) Act 2009; if he will provide an itemised list of communications and-or correspondence methods that he and An Garda Síochána agree require authorisation or monitoring under the current legislation; and if, and to what extent, this includes e-mail and-or Internet and tracking devices. [19557/14]

Mick Wallace (Wexford, Independent)
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In light of the fact that at least two of the recent Garda controversies - the Garda Síochána Ombudsman Commission bugging allegations and the Garda tapes - have their roots in Garda covert surveillance practices and, arguably, both could have been prevented or minimised if covert surveillance had been properly overseen and monitored, the Minister needs to clarify to the House the precise devices and communication methods he and the Garda believe are regulated by the relevant legislation and to provide statistics and figures to demonstrate how widespread and frequent Garda covert surveillance practice is, in particular in regard to internal approvals which are not supervised by a judge. The information is not provided in the annual report of the designated judge which was laid before the House.

Michael Kitt (Galway East, Fianna Fail)
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I thank the Deputy.

Mick Wallace (Wexford, Independent)
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The request for statistics does not threaten in any way or reveal any Garda methods or operations as they are general figures and do not relate to specific operations. I would appreciate it if the Minister would just answer the questions, please, and did not tell us about the legislation, because we have a good knowledge of it.

Alan Shatter (Dublin South, Fine Gael)
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The Deputy will be aware that the legislative basis for the carrying out of covert surveillance in this State is the Criminal Justice (Surveillance) Act 2009. From the outset I should clarify that as Minister for Justice and Equality, I have no role in authorising surveillance under the provisions of the 2009 Act. Under the Act, authorisations for surveillance are granted by a judge of the District Court on application by a superior officer of An Garda Síochána, the Revenue Commissioners or the Defence Forces in circumstances described in the Act.

The Act provides that a member of the Garda Síochána, a member of the Defence Forces or an officer of the Revenue Commissioners shall carry out surveillance only in accordance with a valid authorisation. In that regard, an application for a valid authorisation must be made by a superior officer of An Garda Síochána to a judge of the District Court where the officer is of the opinion that, as part of an operation or investigation being conducted by the Garda Síochána concerning an arrestable offence, the surveillance being sought to be authorised is necessary for the purposes of obtaining information as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purposes of proceedings in relation to the offence; the surveillance being sought to be authorised is necessary for the purpose of preventing the commission of arrestable offences; or the surveillance being sought to be authorised is necessary for the purpose of maintaining the security of the State.

Exceptionally in accordance with section 7 of the Act, an authorisation may be granted without recourse to the District Court in very limited circumstances described in the Act where grounds of urgency exist. In this regard the designated judge appointed to oversee the operation of the Act under section 12 has noted, in his most recent report to the Taoiseach, that the specific procedures in place within An Garda Síochána for dealing with section 7 concerning urgent applications provide that the use of that section should only be availed of where an authorisation cannot be obtained from a District Court judge.

The report of the designated judge, which must be submitted on an annual basis to the Taoiseach, is laid before the Houses of the Oireachtas.

In the performance of his statutory role, the designated judge has unimpeded access to all documentation and personnel relevant to this legislation. In his most recent report, he commented favourably on his experiences in his dealings with An Garda Síochána and particularly in respect of the standard of record keeping where these matters are concerned. The designated judge concludes that the use of the legislation remains an important asset in the fight against criminal and terrorist activity.

Mick Wallace (Wexford, Independent)
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We have heard that reply on at least two occasions previously from the Minister. He has not answered the questions that were tabled. A judgment in the Court of Criminal Appeal in January 2014 in the case of DPP v. Idah gives us one worrying example of Garda abuse of this section 7 power to internally authorise itself to undertake covert surveillance. As a result of an invalid approval provided by the garda in question in inappropriate circumstances, which were not urgent, the evidence obtained was deemed inadmissible and the conviction was quashed by the court. Has the Minister any intention of introducing legislation to reform this area and, in particular, to provide for proper oversight and monitoring to ensure the rights of citizens under the Constitution and under Article 8 of the European Convention on Human Rights, ECHR, are adequately protected? Will he consider extending these covert surveillance powers to GSOC in order that it may be on an equal investigatory footing with the Garda? The principle was set out as far back as 2001 in a British case, Jordan v. UK, taken in the European Court of Human Rights under which oversight bodies must have the same powers as those they are trying to investigate.

The big issue for the Irish Human Rights Commission, IHRC, and the Irish Council for Civil Liberties, ICCL, in the context of covert surveillance is there is not sufficient external oversight of what gardaí do. They are a law unto themselves and the current legislation provides for this. The system is open to abuse because it is not properly checked or monitored. There is no external monitoring worth talking about. The Minister needs to legislate to reform the present structure.

Alan Shatter (Dublin South, Fine Gael)
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The Deputy is wrong when he says there is no external monitoring. I have only referenced the role of the designated judge and the reports that are published and laid before both Houses of the Oireachtas. He may also wish to note that in addition to independent judicial oversight by a designated judge of the High Court, a complaints mechanism is provided for in the legislation whereby any individual who believes he or she has been the victim of improper use of the legislation may have the complaint investigated by a complaints referee. Finally, I wish to advise him in the context of the original question he raised that there are considerable sensitivities around the provision of technical information of the nature sought by him and that it is not the practice for obvious security reasons to reveal details of equipment in use by An Garda Síochána in tackling serious crime and terrorism.

Should there be in the light of the case law of our courts any need to amend the legislation in any respect, I have no difficulty, in the context of the legislation that will clearly be required in implementing any reforms arising out of the deliberations of the Cabinet committee on justice dealing with the police authority, the deliberations of the Joint Oireachtas Committee on Justice, Defence and Equality dealing with matters relating to GSOC and the deliberations being undertaken pursuant to the Haddington Road agreement on the structure and operation of An Garda Síochána, incorporating any required reforms in a new Garda Síochána Bill that may be published later this year.

Mick Wallace (Wexford, Independent)
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The Minister referred to the complaints referee. We do not even know if that system works. We asked how many complaints have been made under it. People cannot complain unless they know they are being bugged and they do not have access to the information that the other side has. The Minister cannot prove this system is functioning unless he gives us the statistics. We are not looking for information that will expose the Garda. The use of tracking devices under section 8 of the 2009 Act never requires external authorisation or judicial oversight. I do not think e-mail surveillance is covered by the legislation. Will the Minister confirm whether it is or not? The IHRC has said gaps in the legislation relating to Garda covert surveillance have significant implications for the protection of the right to privacy. Citizens do not know what gardaí are allowed to do in the area of surveillance.

The Government has an obligation to provide legal clarity. There is such a thing as providing legal certainty, foreseeability and accessibility for Irish citizens. Does the Minister insist on keeping people in the dark and not having any oversight or monitoring of how the force works? The force is going one way in terms of credibility with the public, which is downhill, and the Minister is not addressing the issues.

Alan Shatter (Dublin South, Fine Gael)
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The Deputy raised issues about the complaints referee. As I said to the Deputy, the Act provides for the appointment of the complaints referee to investigate applications from persons who believe they might be the subject of an authorisation under the legislation. The Act does not require a person to know if he or she was in fact the subject of an authorisation but only that he or she might have been.

The function of the complaints referee is to investigate, unless he or she believes the application is frivolous or vexatious, whether an authorisation was used and if so whether there was contravention of the Act. Carrying out these functions the referee will have access to any relevant cases, authorisations or other documents. If the referee finds there has been a contravention he or she will notify the applicant accordingly, report the findings to the Taoiseach and may quash the authorisation and recommend the payment of compensation.

In the context of engaging in regular police work there are substantial provisions for oversight. Let me extend an invitation to the Deputy. If there are particular legislative changes he believes are required, in the context of the review now taking place and having a new Garda Síochána Bill before the House by the end of the year, I have no difficulty in inviting the Deputy to furnish to me the particular amendments he would like to see made to the legislation where he states it falls short of providing adequate oversight.

It is of particular importance to remember in the context of dealing with organised crime, gangland crime, international crime and a range of areas in the context of subversion and terrorism that An Garda Síochána has available to it the best possible technical assistance to ensure those who engage in criminality and pose a serious threat to the community and to life and limb can be fully and properly investigated, appropriate preventative action can be taken and, where a crime has been committed, matters can be fully and properly investigated.

The Deputy should never forget or lose sight of one particular issue, that ultimately one of the bastions of protection of citizens of the State are the provisions contained in the Constitution and the oversight exercised by our courts with regard to these matters. Should the Garda fail to properly comply with powers conferred on it and violate people's constitutional rights the courts provide substantial oversight to ensure the protection of citizens in the country. On occasions this has been lost sight of in the debates which have taken place.

Mick Wallace (Wexford, Independent)
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That is a serious exaggeration. They are a law unto themselves.