Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Deputy expressed his concern that the provision would allow the law to be changed by Executive act rather than primary legislation. The subsection gives effect to two articles in the 2000 convention. The State may make a declaration under the articles at the time of entry into force of the convention to the effect that immediate transmission of interceptions is not possible. In those circumstances, the State will comply with requests for interception, recording and subsequent transmission of telecommunications as provided for.

However, the proposition that this provision allows for a change of law by Executive act is not strictly correct. Ireland would be obliged to advise the Oireachtas at the time of ratification of any proposed declaration and in the event of any subsequent amendment to the declaration. Furthermore, the effect of the declaration is merely to allow for the recording and subsequent transmission of telecommunications rather than immediate transmission in circumstances where the latter is not possible.

Subsection 24(2) provides the required primary legislative basis for the interception and recording. The possibility of making the declaration is a safeguard. The subsection allows Ireland to make the necessary declaration at the time of ratification of the convention that, if we are unable to provide for interception and immediate transmission, it will enable us to review the capacity of our telecommunications system prior to ratification. It does not affect our obligation to transmit the information.

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