Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

Today, it was agreed at Cabinet that the input of the Joint Oireachtas Committee on Justice, Defence and Equality would be sought on the amendments to be made to the 2005 Act with regard to GSOC, in advance of my finalising the proposals to be brought by me to Cabinet - hardly the actions of someone seeking to undermine the work of GSOC.

On Tuesday last, in this House I detailed the background to the investigation GSOC initiated and the outcome of that investigation. I summarised for the House the information furnished to me by GSOC's chairman, Mr. O'Brien, at our two hour meeting and that contained in the briefing note I received from GSOC and its public press release. I addressed the central issues of the "anomalies", "potential threats" or "vulnerabilities" identified. Two of these, relating to a Wi-Fi system and a conference call telephone, resulted in GSOC initiating an investigation on 7 October 2013. Following the instigation of that investigation, a third potential threat or vulnerability was identified in respect of a device that can access phone conversations and material from a UK telephone connected to a UK 3G network. I detailed to the House the conclusion reached by GSOC following on from that investigation and work undertaken by Verrimus, the security consultants which had undertaken the original security sweep in September 2013 and which had assisted GSOC in the investigation that took place. I recounted, specifically, from both the chairman's meeting with me and the formal brief I received, the conclusion that there was no definitive evidence of any technical or electronic surveillance of GSOC's offices. I also recounted that there was no connection between any member of An Garda Síochána with any of these matters. Despite the fact that what I said with regard to the surveillance replicated exactly the conclusion contained in the brief received by me from GSOC, I have been subject to continuing political attack alleging that I have undermined the role of GSOC and been covering up Garda misconduct.

Unfortunately, both inside and outside this House, GSOC's conclusions and decision to conclude its investigation have been disregarded. In this context, it is worth noting what the commissioner, Mr. Kieran FitzGerald, told "Prime Time" this day last week.

Ms Miriam O'Callaghan asked the following question with reference to GSOC's press release of Monday, 10 February:

In your statement last night you said there was no evidence of Garda misconduct, why would you say that in the first place if you weren't thinking that?

Mr. Kieran FitzGerald replied:

Because the reason we said that last night and that l'm happy to repeat it here now, is that it's part of the public discussion, in Dáil Éireann this evening, and all over the airwaves for the last couple of days, people are pointing fingers and may I say it is unfair of people to point fingers at An Garda Síochána on the basis of anything we have said or done.

That was said by Mr. Kieran FitzGerald, a commissioner in GSOC. Listening to the contribution of Sinn Féin members tonight, one would think it was said somewhere in outer space and no one was listening.

Ms O'Callaghan, in reference to finger-pointing, continued, "but your statement last night did that". Mr. FitzGerald replied:

No, our statement last night was meant to try to clear that up and say we did not find evidence of Garda misconduct because the public discourse seems to be pointing in the direction of finding the Guards guilty of this thing when we are saying quite clearly and categorically and in no uncertain terms, we found no evidence to point to that direction and for people to suggest that, you know, they were up to something, we're the people who did the examination, we're the people with the evidence, we do not have any evidence to point in that direction.

It is unfortunate that, despite that clear statement by Mr. Kieran FitzGerald on "Prime Time", we have had a week of continuous finger-pointing at An Garda Síochána, and calls for inquiries by persons who have not only assumed that GSOC was under surveillance or was bugged, but that the Garda were the culprits. We have had more of that tonight from Sinn Féin. Having regard to that party's history, of course, it suits Sinn Féin to have An Garda Síochána continuously under some form of suspicion.

While I do not doubt the general legitimacy of concerns that have been expressed by various persons at reports of potential threats of surveillance of GSOC, it is a pity that we could not have had a more balanced and rational debate on these matters.

An inference has been drawn by some that one of the three potential threats identified by GSOC - the use of a bogus UK network device - could only involve technology available to government agencies. The repetition of this inference has been fuelled by the Verrimus report and has caused real concern to many. Information on the technology needed to create a bogus network - usually referred to as an IMSI catcher - is in fact widely available on the Internet. It is also the case that such devices have a range of up to several kilometres, so that even if there had been such a device it could have been located anywhere in central Dublin. There is no indication whatsoever of which I am aware that it was directed at GSOC, whose staff do not in any event use UK-registered mobile phones.

I referenced this fact in my speech last week based on the briefing I received from the chairman of GSOC. It is also worth noting that in his presentation to the Joint Oireachtas Committee, the chairman clearly did not accept that the technology referred to could only be obtained by Government agencies, despite the statement to this effect in their security consultant's report. I did not reference it in my speech to the Dáil last week as the chairman had clearly placed no reliance on that advice, and this is clear from his own comments to the Joint Petitions Committee. However, we have reached the stage where these and other factual arguments cannot get a fair hearing.

This political opportunism has extended to manifestly false claims that I misled this House or withheld relevant information from it. I must say again that everything I told this House in statements on Tuesday of last week was based wholly, exclusively and accurately on the oral and written briefing given to me by the chairperson of GSOC and the press statement issued by GSOC. If that were not the case, the endorsement of Mr. Kieran FitzGerald would not have been forthcoming.

Some Members opposite claimed to see significance in the fact that I did not specify that the investigation launched by GSOC was under section 102 of the Garda Síochána Act 2005. I made it clear to the House, however, that GSOC had launched an investigation. The fact of the matter is that section 102 is the only section under which GSOC could have launched such investigation. As anyone with even a passing familiarity with the 2005 Act will confirm, no other section could have been used by GSOC to initiate an investigation on its own initiative, so it is of no relevance that I did not expressly reference section 102 in my Dáil statement, just as GSOC did not reference it in its press release. There has been no public criticism of GSOC for not referencing and naming the section in its press release.

There were other sections of the legislation relevant to the investigation undertaken by GSOC to which no reference was made and to which GSOC itself made no reference in its press release. These include section 98 and section 103 of the 2005 Act. It was not a night for delivering a legal treatise. It was an opportunity to explain to the House in as non-technical language as possible the events that had occurred as recorded to me. I assumed those speaking in the House and, in particular, the Opposition justice spokespeople were familiar with the Act. I certainly never expected that my statement would be distorted to a false allegation being made by my political opponents that I had, in some way, misled the House for some perceived political advantage.

All sorts of motives have been attributed to me for not expressly mentioning section 102 of the Act, which have no credibility in the context of my knowledge that members of GSOC were the next day to come before the petitions committee and that, at an extended questioning session in the committee, there was a reasonable likelihood that specific aspects of the legislation applying to GSOC would give rise to questions.

It has been suggested that I wanted to conceal the fact that GSOC commenced an investigation into members of An Garda Síochána. Those who make this charge choose to ignore the fact that GSOC's investigative remit is confined to investigating matters relating to An Garda Síochána. GSOC has no statutory entitlement to investigate any other individual or body, other than a member or members of An Garda Síochána.

The issue of whether GSOC should have advised me of the investigation which it carried out under section 102 of the Garda Síochána Act 2005 has also resulted in spurious claims - repeated this evening - that either myself, the Taoiseach or other Government Ministers were attempting to divert attention away from the substantive issue of whether GSOC was under surveillance.

Much was made of what was seen as the discretionary nature of the provision in section 80(5) of the 2005 Act under which GSOC may - and great emphasis was put on the word "may" - make any report that it considers appropriate for drawing to the Minister's attention matters that have come to its notice and that, in its opinion, should because of their gravity or other exceptional circumstances, be the subject of a special report to the Minister.

First of all, it was never a question of diverting attention away from the substantive issue of whether or not GSOC was under surveillance. There is no binary choice between one and the other. Indeed, it is precisely because the substantive issue is of such importance - a point I have repeatedly emphasised - that the question of reporting this to me was such an important matter. It was not appropriate that I first learned of it in a Sunday newspaper in a report derived from a leak from GSOC that remains under investigation.

It is true that section 80(5) of the 2005 Act provides that GSOC may make a report to me in the circumstances I have described, but this is better described as an enabling provision rather than a purely discretionary one. In other words, it should be used in circumstances contemplated by the provision. In that context, I do not think that any reasonable person would regard concerns of the nature we are discussing yet again this evening as anything other than grave or exceptional. I am not sure how anyone could sensibly argue the opposite in circumstances where this issue has dominated the TV and radio news for days on end, has been the subject of countless newspaper headlines and articles, was the subject of statements in this House last week, is the subject of a motion in the House this evening, and is being examined as a matter of urgency by a joint committee of both Houses which took four hours last Wednesday to question members of GSOC. If that is not a matter of some gravity or extraordinary circumstance I do not know how one would define the meaning of either term.

Even apart from this, however, there is the separate obligation in section 103 of the 2005 Act. Section 103 provides that GSOC, where it launches a section 102 investigation, shall - and I emphasise the word "shall" - inform the Minister of the progress and results of the investigation. An exception to this strict requirement is allowed in only three circumstances, namely: where supplying the information would prejudice a criminal investigation or prosecution; would jeopardise a person's safety; or, for any other reason, would not be in the public interest. The first two exceptions are irrelevant. As regards the third, I find it impossible to see how it would not be in the public interest for the Minister to be advised of an investigation in these circumstances or of the outcome of such an investigation. In any event, and to be fair to GSOC, GSOC has not argued that I was not informed for any of these reasons, and has expressed genuine regret at the decision not to keep me informed.

I make these points to illustrate how some Members opposite have sought every opportunity to generate controversy and manufacture concern in the hope of scoring political points, without regard for the consequences for GSOC, the Garda Síochána or public confidence in either institution.

Since I addressed this House last week on these matters, the following events have taken place: Members of GSOC participated in a four-hour hearing before the Joint Oireachtas Committee on Public Service Oversight and Petitions; I received from GSOC three reports of Verrimus Limited, the first relating to the original security sweep, and the second and third relating to further work undertaken by it subsequent to the commencement of GSOC's investigation of 7 October 2013; I received from GSOC a report pursuant to section 103 of the Garda Síochána Act 2005; I have engaged in correspondence with GSOC seeking to further clarify matters of relevance; I have received a peer review report on the technical matters of relevance from RITS, an IT security consultancy firm, based in this country, to seek clarification of the technical information contained in the Verrimus report and an opinion with regard to the risks as identified and presented to GSOC; and my officials have also obtained clarification from GSOC in respect of some matters.

I have considered in detail all of the documents and the information furnished to me. I have also carefully read through the transcript of the four hour hearing before the petitions committee. I have received from GSOC information additional to that furnished to me on Tuesday last, prior to my statement to the House, and some information additional to that given to the joint committee during the course of the four hour hearing.

Included within that information are further details concerning the unused Wi-Fi in GSOC's offices that was remotely accessed. It seems that Verrimus identified, in September 2013, that it was being remotely accessed but could not identify from where. The unexplained accessing of the Wi-Fi is, of course, an indicator of a potential threat or vulnerability. However, as it was confirmed to me that the Wi-Fi at no stage accessed any information whatsoever contained in GSOC's office, there was of course no real breach of GSOC's security.

Whilst it seems Verrimus was unable to explain why the wifi was so accessed, the section 103 report explains that the wifi showed a connection to the Bittbuzz network and that the Wi-Fi system was found to be connecting to another Wi-Fi system "located in a business premises close to the Ombudsman Commission's offices".

It also states "the Bitbuzz equipment had been installed in that business premises in approximately August 2013" and that the device using Wi-Fi in that business premises had only connected to Bitbuzz in approximately August 2013. Some check was undertaken through Bitbuzz which confirmed that no confidential information had been accessed and the section 103 report records that no further inquiries were made. It was concluded that it was likely that the Wi-Fi within GSOC was randomly linking into Bitbuzz "due to some unknown technical anomaly rather than some unauthorised technical or electronic surveillance". That information only came to my attention on Friday.

In reply to an inquiry from one of my officials in the Department of Justice and Equality, GSOC advised this morning that the business premises referenced was an Insomnia coffee shop within a Spar outlet on the ground floor of the building occupied by GSOC. It advertises Wi-Fi availability for customers and connectivity to Bitbuzz. I am unaware of any credible information that surveillance is being, or has been, conducted on the offices of GSOC by any of the customers of Insomnia. It is a matter of concern to me that this full information was not supplied to me prior to the Dáil debate on Tuesday last, nor given to the Oireachtas joint committee on Wednesday. Before this comment is used to accuse me again of trying to undermine GSOC, I reiterate that it is my only objective to ensure the truth is known about all of these matters.

The report mentioned earlier that I received from RITS gives as an opinion, based on the reports provided for RITS, that "there is no evidence of any technical or electronic surveillance against GSOC"; that is, no evidence at all, not merely no definitive evidence. The report also disputes other conclusions reached by Verrimus. I appreciate that GSOC relied on the reports it had received from the security company it had contracted. I cannot ignore the report I received from the company asked to conduct a peer review of the technical documentation furnished by GSOC to me and the information accompanying it. Having regard to the differences that have arisen, the additional information I have received since I made my first statement to the Dáil, the ongoing nature of this controversy, its debilitating impact on the capacity of GSOC to get on with its work and the continuing overhang of suspicion voiced by some, despite the conclusions of GSOC, that the Garda Síochána or a member of the Garda Síochána was engaged in misconduct, I concluded that it was important to do what was possible and reasonable to bring an end to ongoing controversy.

I briefed the Cabinet this morning on developments that had occurred in respect of this matter following on from the hearing last week of the Joint Committee on Public Service, Oversight and Petitions. I gave the Cabinet my assessment of the potential damage to both GSOC and the Garda Síochána and more widely to public confidence in the enforcement of law from the character of the current debate on surveillance concerns. It was clear to me that it was necessary to provide a structure for all issues of controversy to be addressed with calm and reason. I briefed the Cabinet on all the information at my disposal. In the light of the briefing and my concerns, my Cabinet colleagues and I agreed to the appointment of a retired High Court judge to inquire into all matters of relevance to the controversy that had arisen.

Up to Friday, it was my view that GSOC had inquired into these matters and reached a conclusion and that calls for an inquiry could be seen as undermining public credibility of GSOC and a rejection of the conclusions it had reached in the investigation it had undertaken. No such inquiry calls have in the past been made when, following an investigation, GSOC concluded that there had been instances of Garda misconduct. It seemed highly inappropriate to hold an inquiry in circumstances where GSOC had concluded that there was no evidence of Garda misconduct. However, the manner in which this controversy has continued, the new information I have received and the need to bring absolute clarity, insofar as that is possible, to all of these matters lead me to the view that it is in the public interest that a retired High Court judge undertake the task agreed by the Cabinet. It is of the utmost importance that the full truth is established beyond dispute. I hope all sides of the House will welcome this and now give the judge to be appointed the time and space necessary to conduct this inquiry and report on his or her conclusions. I am reliant on the advices of the Attorney General on the terms of the inquiry and expect that they will shortly be finalised. It is regrettable that Members of this House, following the announcements, should impugn my motives and objectivity with regard to the terms to be furnished to the judge. This matter will be settled by the Attorney General and the judge to be appointed must be satisfied the terms of reference are appropriate to the matter to be looked into.

I hope the decision will enable GSOC to proceed with its work unhindered by controversy. As stated, I will, of course, attend before the petitions committee tomorrow to address any issue of relevance. The report to be produced by the judge will be laid before both Houses of the Oireachtas, unedited and untouched in any shape by me. It is regrettable that people should question my integrity and suggest anything other than that in the context of comments made in this House. It is of the utmost importance that the matter be dealt with in a calm and cool way. It is important that Members do not further impugn the integrity of either body or jump to conclusions and make public comment in jumping to conclusions in this issue and presenting themselves as defending GSOC, while denying the credibility of the conclusions reached by GSOC in its investigation. I cannot understand that approach. I cannot understand how that does what some say they are seeking to do, to ensure the integrity of GSOC. My commitment as Minister is to ensure we get to the truth. I do not express any favouritism as between the Garda Síochána and GSOC. They are hugely important bodies that will fill an important role in the State and must do so in the context of the statutory framework within which they operate. It is important that they abide by the statutory framework and meet the obligations imposed on them.

It is important that no further comment be made leaving any cloud of suspicion hanging over any body in circumstances in which there is no evidence for such a cloud. That is not in the public interest. I plead with Deputies that we have had a week of hyperbole, hysteria and wild claims.

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