Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

Gabhaim buíochas leis an Ceann Comhairle as ucht an deis seo a thabhairt dom labhairt ar an ábhar tábhachtach seo. Is é seo an chéad deis a bhí agam comhghairdeas a ghabháil leis an Aire Stáit nua atá i láthair.

This is a major piece of legislation. The bulk of surveillance conducted by law enforcement agencies to date in this State has been unlawful and hence has automatically fallen foul of the European Convention on Human Rights. Evidence gleaned from such surveillance has, therefore, not been able to assist prosecutions. We have had the worst of both worlds. I welcome the publication of this Bill because it will move us towards compliance with our human rights obligation and provide for the related evidence to be used in court, thereby increasing the likelihood of successful prosecutions in some cases.

Tacaíonn Sinn Féin leis an Bhille seo. Táimid sásta cuidiú chun an reachtaíocht seo a phlé chomh gasta agus is cóir. Dar ndóigh, caithfidh an iniúchadh cheart a bheith ann ar Chéim an Choiste agus ar an Tuarascáil. Molfaidh mé roinnt leasuithe forasacha chun iarracht a dhéanamh reachtaíocht níos foirfe le breis cosantaí a chothú, gan aon rud a bhaint ó bunphrionsabail an Bhille, dar ndóigh. Sula ndéanfaidh mé déileáil le sonraí an Bhille, ba mhaith liom roinnt ráitis ghinearálta a dhéanamh maidir le cur chuige an Rialtas i leith coireanna na gangs atá ag déanamh ionsaí ar an phobal atá an Stát, agus Baill na Tithe seo, ag iarraidh a chosaint. Creidim go bhfuil an cur chuige sin imithe ar strae. I roinnt cásanna, tá roinnt easnaimh móra ann.

I am concerned at the Minister's attempts to sell this Bill, via the media, as some sort of grand solution. There is a recognition since it was announced that this will not eliminate the need for eye-witness testimony and good old-fashioned Garda investigative work. We need to ensure that the Garda Síochána has the tools to carry out that work. We still do not have digital radio fully rolled out to the Garda. Digital radio, which cannot be intercepted by criminal gangs, is a simple tool which is in virtually every other country in Europe, including some of the poorest countries. Others have mentioned other tools that are unavailable.

There is a need for continuous community policing. If the Garda Síochána has the support of the community it will also get intelligence from those people because people want to protect themselves and be protected. We do not want the old-fashioned policing which came to prominence in the Morris tribunal and the Sallins and Dean Lyons cases. There is no role for that type of policing in Irish society.

In most cases witness testimony by members of the public will still be required. Therefore much more must be done in the area of witness protection. The repercussions of the recent murder of Roy Collins in Limerick are grave in the extreme. This murder is believed to have been in retribution for the fact that a member of his family testified successfully against a gangland hood some years back. Intimidation of the Collins family has continued. His father, Stephen Collins, was attacked again last week by a gang of nearly 25 criminals. These horrific crimes raise questions around the inadequacy of protections available to witnesses and their families.

Recent events in Dolphin House in my constituency have highlighted the links between State neglect, social exclusion and deprivation, drug dealing and crime. The failure of the Celtic tiger to visit the complex and of successive Governments to address the problems, social and housing in particular, in this and other working class estates has left them open to the type of activity that occurred in Dolphin House last weekend and early this week. The organised violence and intimidation aimed at the community and at the Garda Síochána was and is a direct challenge to the rule of law and the Garda. If that challenge is not met head on the community and its leaders will be left at the mercy of these thugs. Such violence will also have a knock-on effect, as has been seen in the past, for example, in Limerick where the same situation occurred. If the Limerick gangs had been tackled head on a number of years ago we would not have had the escalation, the lawlessness and the continuing feuding that has reached a scale never seen before in Limerick or in any part of this State.

The State must step in to tackle the gangs in Dolphin House but also must tackle the underlying problems and issues that led to that situation. Where are the regeneration plans for that estate? Where are the community games? The inhabitants have put up with years of neglect and the Celtic tiger never visited their estate. In this type of community, the people must feel confident that their estate has the backing to be able to stand up to the thugs. If not, there are people in the community who will not stand idly by and see their community brought into the abyss. I do not encourage this but the reality is that people will defend themselves. I have been made aware of this and have tried to discourage people from taking such action. The community must work with the Garda Síochána and the Garda must work with and for the people. That means protection. In the case of Dolphin House, Dublin City Council also has a role to play. It must deal with the anti-social tenants and the elements who are plying their evil trade in Dublin council estates. In return, the community will back both Dublin City Council and the Garda Síochána.

Witnesses must feel safe and confident that they and their families will be protected. No expense can be spared to this end. The legislation before us will not do that job on its own, if at all. Additional legislation and perhaps additional resources will be required for witness protection. As it currently operates, the witness protection programme will not do the job. That has been accepted by the Minister and by the Garda Síochána. The general consensus of those involved in the former witness protection programme is that it is of limited use in Ireland. The Garda Commissioner, Fachtna Murphy, recently emphasised how difficult it is to ask people to relocate abroad. The previous Commissioner, Noel Conroy, said that most people are simply too scared. The Director of Public Prosecutions, James Hamilton, said the programme is of limited use because the demands it places on those entering it are drastic.

A full range of protection for witnesses, short of secret relocation, must be explored and resourced. In the case of the recent Collins murder, if the the individual from the family who gave evidence had been relocated, his family would have remained at risk. It would have made no difference to the gangs who are willing to go out of their way to target and kill an innocent person, a State witness, and threaten his family. The challenge to the State is to stand up to those thugs.

In many ways, producing new legislation is the easy part. However, nine times out of ten the response we really need is practical and resource-based rather than legislative. The Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, claims that tackling crime is his number one priority. He has even used this as an excuse to annihilate the equality and human rights infrastructure through funding cuts, justifying this by his mission to fight crime. Laudable though that mission is, the evidence does not stack up. The Minister is in denial concerning the implications of his own Government's budgetary decisions for operational management and front line policing.

All the Garda associations, including the Garda Representative Association, the Association of Garda Sergeants and Inspectors and the Association of Garda Superintendents, have pointed out the brain drain and contraction of Garda numbers as consequences of the pension and income levies, the overtime ban and, in particular, the recent illogical recruitment and promotions embargo. Only last week, the president of the Association of Garda Superintendents clearly stated that early retirement requests are increasing. Coupled with the public sector recruitment and promotions moratorium, this means that management levels will be difficult to maintain. Ultimately, front line policing will suffer. The force does not even have the equipment and now there is the threat it will not have the members. We are in dire straits and there is a need to address that aspect of the recent budgetary decisions.

Is léir ón stair go n-ardaíonn coireacht, go háirithe coireacht atá ceangailte le drugaí, in am an mheathlú. Ní chóir dúinn an tráth eacnamaíochta seo a úsáid mar leathscéal chun cosantaí finnéithe, teaghlaigh agus an phobal i gcoitinne a chur ar leataobh. Ag casadh ar an mBille, níl aon rogha againn seachas an reachtaíocht seo a ghlacadh. Tá orainn é a dhéanamh de thoradh an cinneadh a rinneadh san cúirteanna.

This Bill is not optional. It is mandated by the 1937 Constitution, the European Convention on Human Rights and the jurisprudence of the Strasbourg court. Privacy is enshrined and is well recognised under Article 40 of the Constitution. Privacy is more precisely protected by Article 8 of the European Convention on Human Rights which states:

Everyone has a right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime for the protection of health and morals or for the protection of the rights and freedoms of others.

The key case detailing the thinking of the European Court of Human Rights in this field, which still prevails, is Klass v. Germany in 1978. In this case, the Strasbourg court ruled that states do not enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance.

The court, being aware of the dangers such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the contracting states may not, in the name of the struggle against espionage or terrorism, adopt whatever measure they deem appropriate.

It further ruled that the court must be satisfied that whatever system of surveillance is adopted, there exists an adequate and effective guarantee against abuse. Obviously, that is what we are trying to address in the Bill. As Paul Anthony McDermott stated at the annual national prosecutors conference in Dublin Castle last summer:

The constant emphasis the Strasbourg court placed on the detailed provisions and criteria laid out in the German law makes it all the clearer that it is necessary for Ireland to set out its police powers in relation to covert surveillance and undercover detection in an accessible statutory framework subject to checks and balances and tailored to the need to protect the interests of democratic states. Any blank cheque written for the Irish legislature for An Garda Síochána in this area will not be honoured in Strasbourg.

The absence of such a statutory framework and the type of abuse to which its absence gives rise was highlighted by the Morris tribunal when it investigated Garda corruption in County Donegal. The third volume of the tribunal's report published in 2008 investigated allegations of covert surveillance and taping and I shall put some of the conclusions of that report on the record.

The tribunal pointed out that apart from the unusual Kane v. The Governor of Mountjoy Prison case, the Garda Síochána have been left without statutory guidance and the citizen without adequate understanding of the extent to which overt or covert surveillance may be carried out on an individual. The tribunal stated that it was disturbed and dismayed at the extent to which covert taping was conducted by gardaí not only of conversations with civilians, but of conversations between gardaí supposedly working together. It noted that was entirely wrong that gardaí should be recording persons, including their colleagues and senior officers, at will or contemplating or carrying out covert surveillance using electronic devices without any statutory guidance or regulation and without internal guidelines.

Mr. Justice Morris concluded that the legislature had a job to do. We are thankful the Minister has started the work by presenting us with this Bill. Obviously, the Garda also has a job of work to do and recent progress has been made in setting down guidelines so that never again will we have the type of corruption and skulduggery that Mr. Justice Morris investigated within the Donegal division.

On the interesting issue of surveillance, wire tapping and so on, I asked a previous Minister for Justice, Equality and Law Reform to guarantee that no Member of this House was under electronic or other surveillance. The answer I received from him was to the effect that two Members of the House were under surveillance. I do not know who they are, perhaps one might be a Fianna Fáil backbencher who was up to no good. However, can the present Minister give a guarantee at this stage that there is no surveillance of Members of this House? I do believe wire tapping is done anymore, it is more a case of electronic taps.

The culture of secrecy and the special branch agenda, which predominated in this State for the last 30 years is said to be at an end. However, I do not believe it is because in my constituency at Easter, members of the special branch were still monitoring Sinn Féin Easter Week commemorations. There is still a level of harassment of Sinn Féin members and I had thought that at this stage the special branch would have copped on, or at least the Garda Commissioner. I intend to raise this issue with him, directly.

Another aspect is that it is not just a question of surveillance by An Garda Síochána or the Defence Forces that needs to be looked at because although I am not a conspiracy theorist, external espionage groups such as MI6, the CIA or even Mossad are operating in Ireland. It is strange that we have never seen, as in other countries, an exposure of the activities of foreign security services. Very little action appears to be taken in this regard and they seem to be allowed to work at will. Perhaps we can address this at another stage, namely, the dirty murky world of political and economic espionage, which is aimed against this State and the people living in it. Perhaps greater sentencing might be considered for those involved in such activities.

I want to highlight a number of areas where, without interfering with the purpose of the Bill or compromising its objectives, it can be improved. I am disappointed that the positive safeguards, principally judicial involvement in the authorisation process, are not being extended to a broader range of surveillance techniques. A host of surveillance and covert policing techniques with inherent privacy implications are still to remain without lawful basis. I believe the European Convention on Human Rights is wide open to legal challenge, even where the use of such techniques might be justified and allowable, were it to be underpinned by legislation. In addition, the many great shortcomings of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and the data protection provisions contained in the Criminal Justice (Terrorist Offences) Act 2005 still remain unaddressed. Also the principle of judicial authorisation as a norm is to be welcomed, but we need to tighten up in that area.

Constitutional practices in the United States contrast massively and favourably against the approach taken by Britain, which is what we are emulating, although I accept the need for the Bill to contain provisions for emergency authorisation in the absence of a judge being available. However, I believe certain amendments should be made in section 7 which deals with this eventuality. In urgent cases, section 7 allows a superintendent to authorise surveillance for a period of 72 hours. This needs to be tightened up. The onus should be on the superintendent to make an ongoing effort to obtain judicial authorisation and to document this effort. In addition, from my reading of the Bill, there is nothing to stop the Garda authorising 72-hour surveillance, breaking for 24 hours and then replicating such authorisation again and again - in effect, putting in place long-term surveillance without judicial authorisation.

There are a number of other issues I intend to address on Committee Stage. This legislation is required and that it will be useful in the ongoing fight against the criminal gangs in particular, which have become more and more adept at avoiding prosecution and are becoming more and more sophisticated. They seem to have all the resources they need and if the Garda Síochána is to tackle them it will need not just the legislation but the resources required by a modern police force.

See this speech in context