Seán Sherlock (Cork East, Labour)

I welcome the publication of the Bill. I acknowledge the work of Deputy Pat Rabbitte in introducing the Garda Síochána (Powers of Surveillance) Bill, which I believe is the forerunner to the legislation before the House today. I also acknowledge the very helpful document published by the Oireachtas Library and Research service, which was an invaluable source for me, in particular, in seeking to interpret the legislation.

The basis on which we would support the legislation is the morass that exists in Irish society today. This is exemplified by the spate of ruthless killings we have borne witness to over a number of years. The question outside these walls is whether the tipping point has been reached — and whether this legislative proposal will facilitate that tipping point to restore some semblance of peace, again, on our streets. We were previously told that the murder of Veronica Guerin was the turning point in the context of gangland killings. That point came and went and now we are being told that the murder of Shane Geoghegan in Limerick is the turning point. I hope it is, and I continue to hope that this legislation, while it will not be a panacea, will facilitate a process that will allow the Garda Síochána to have the necessary tools to allow it to carry out its work in this regard.

As Deputy Rabbitte has said recently, in outlining the Labour Party position on this, the fundamental question is whether the response by way of legislation is reasonable, legitimate and proportionate. I believe that it is and that the Garda must be given powers to respond in a manner that facilitates a preventative mechanism. The powers within this legislation, on first reading, would deem that to be the case. I am encouraged, also, by the statement on 17 April by the Irish Council for Civil Liberties, which gave a cautious welcome to the Bill. Its statement said that intelligence-led policing and not the restriction of fair trial rights was the most effective way to tackle gangland crime. I refer specifically to Mr. Mark Kelly, the ICCL's director who stated that the Bill would at last place Garda surveillance on a lawful basis that broadly conforms to Article 8 of the European Convention on Human Rights. He went on to say that the need for judicial authorisation of most forms of surveillance was welcome. However, it remained unclear why it was felt unacceptable to allow tracking devices to be placed on people's vehicles on Garda authority alone.

While the ICCL has reservations, I am sure many of them can be worked through on the later Stages of the Bill. Mr. Kelly said that in the interests of protection of privacy, the ICCL was urging the Minister to publicly disclose before the Bill becomes law the proposed content of the regulations foreseen in section 8(2) in order to ensure that there will be a human rights framework for the use by gardaí of tracking devices. I understand that Deputy Rabbitte stated earlier that this would also be teased out on later Stages. However, I welcome the ICCL's support while appreciating its concerns in relation to Article 8 under the European Convention of Human Rights 2003, and the recognition of the need to ensure that the right to a fair trial is maintained, or not compromised in any way.

I hope that putting into effect an explicit statutory provision in relation to surveillance will assuage any fears regarding the rights of an individual and the need to reduce crime. I believe that ICCL support for this, while qualified, is significant. My interpretation of this support is that there is no danger such an Act would contravene Article 40.3 of the Constitution in term of the personal rights of the citizen. Such Article 40.3 rights are germane to the tipping point or the turning point I spoke of earlier. What Shane Geoghegan's murder teaches us is that at some crucial point the personal rights of a citizen must not be unqualified. That is to say, they are not absolute. If we are to pursue his killers and those of others, then the constitutional rights of some must be subservient to the common good, and as the late Mr. Justice Hamilton previously stated, subject to the requirements of public order and morality.

I believe that is what this legislation is about. It is about ensuring that we can reach a stage where a person's personal rights are vindicated but that the common good and the desire for the rule of law is maintained or restored within this country. We need to get to a point where we can have some confidence that the powers the Garda have will be used to such an extent.

If I was never involved in the legislative process, I would still take the view that it is necessary for the Garda to have such powers to enable it to carry out its functions. That this Bill will provide a statutory framework for carrying out such surveillance by gardaí and others is the right approach at this time. In fact, it is overdue and if the gardaí are not given such powers, then the morass that this society finds itself in, which incorporates the slaughter of innocents, will continue and go unpunished in some cases.

In addressing the specific provisions of the Bill, there are a number of questions to which I seek answers. Section 5 provides that "an authorisation may be made ex parte and shall be heard otherwise than in public". I hope that the power to seek authorisation for surveillance in such circumstances is balanced against the power of the judge to grant a specific authorisation. If I interpret that provision correctly, there is no onus on the superior officer to state a particular offence and I hope that this power will be used wisely. However, I am satisfied the specifications in regard to the authorisation leave no grounds for a potential abuse of power.

Section 5 outlines that where an authorisation is sought, there are specifics in regard to the particulars of the surveillance device authorised to be used, the person who or the place or thing to be the subject of the surveillance, the name of the superior officer to whom it is issued, the conditions subject to which the authorisation is issued and the date of expiry. It is necessary that there are specific provisions within that authorisation which will ensure there is no vagueness about the authorisation and, therefore, it will not be potentially open to abuse. I welcome that provision in regard to the authorisation and I hope it will be stringently adhered to when implemented.

In regard to sections 5 and 6, where an authorisation is sought, it may authorise the superior officer named in it or any member of the Garda Síochána, member of the Defence Forces or officer of the Revenue Commissioners designated by that superior officer. There is a provision where a superior officer may seek the authorisation but that any other member of the Garda Síochána can also be subject to that authorisation. If another garda who is not a superior officer is subject to that provision, is he or she named in it?

If we are to grant new powers of surveillance, will there be specific training or will resources be allocated to train junior officers under the legislation? If the legislation is to work, it must be on the basis that every officer, whether in the Revenue Commissioners, the Garda Síochána or the Defence Forces, is given specific training which will ensure there is no scope to challenge the provisions of the legislation thereafter where criminal proceedings are brought. Will the Minister address that in his reply?

I refer to section 8. What does the Minister interpret as a "tracking device"? I have watched many cop shows and we all know what a tracking device is. In practical terms, how will this play out? I know it provides for specific vehicles to be tracked. I would like to hear the Minister's take on that section when he responds to the debate.

I refer to the Garda Síochána Ombudsman Commission and the powers vested in section 11. There is a complaints procedure in the legislation which states specifically that recommendations can be made and that a matter can be reported to the Garda Síochána Ombudsman Commission. What are the powers of the Garda Síochána Ombudsman Commission in regard to the legislation? There is a reporting procedure but is there a power of intervention or recommendation which must be acted upon where a complaint is made?

I understand the provision in regard to the power of a Circuit Court judge and the complaints referee. That is very clear. However, the powers in regard to the Garda Síochána Ombudsman Commission are unclear to me and I would like a more specific interpretation of that.

I hope from a societal point of view, that we have reached a tipping point where we can now restore some semblance of peace on our streets and that once this legislation is enacted, there will be a pressure on people who have acted with impunity which will stymie their activities and put them out of business for a long time to come. It is necessary to enact this legislation and in that sense, I welcome it. It will not provide a panacea for all our ills but it will provide the start of a real process which will restore some semblance of peace.

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