Catherine Connolly (Galway West, Independent) | Oireachtas source

I am glad the Minister is here. In his speech, he acknowledged that Members inside the House and people outside the House would have different viewpoints. I certainly have a very different viewpoint on this Bill. Let me also say that I have the greatest respect for the gardaí on the ground. Many is the time I have had little respect for the management, as with all institutions. That was not helped by my introduction to the Dáil in February or March 2016, when the first document I read was the O'Higgins report in respect of Sergeant McCabe. I do not think we can mention that man's name often enough with respect and with gratitude for what he did. That was my introduction. I have read many reports after that from High Court judges and various people on Garda behaviour. When I talk about Garda behaviour, I talk about it from the top down. In my role as a Deputy and as a mother, I am the first to ring the guards in the expectation that they will come and that I can trust them and tell them what is happening. I am talking here about what has happened with the Garda. The Minister will remember the Morris tribunal. He might remember the price of that and the foolishness of thinking those matters were confined to one geographical area in Donegal. Had anybody at the time thought to look at that, we might have pre-empted what happened subsequently with Sergeant McCabe but we did not do that, of course. Then there was the collusion between the Garda and the Northern Ireland police force, the Smithwick tribunal. There is any amount of examples.

The Minister must forgive me if I come from a very sceptical position. I adopt that same position in respect of my own role as a Deputy and this institution. I constantly question myself and all institutions because they end up protecting themselves and they do not end up serving the people they are there to serve, including councils and local authorities that have taken on the mantle of corporatisation. We did have councils that served. Institutions are always in danger of serving themselves and becoming more important than the people they are there to serve.

The title of the Bill seems innocuous: Garda Síochána (Recording Devices) Bill 2022. The Minister's speech failed utterly to ease out the balance that must be made between the fundamental right to privacy and the infringement, intrusion or invasion of that right for the common good or public safety. That is a very delicate teasing out. Top of the list has to be the fundamental right to privacy. We take that away at our peril. When we take it away, we must do it in a way that is measured, necessary, proportionate and only for a certain length of time. Those safeguards are not here at all for me to see and I have done my best. I welcome some of the provisions. I welcome the mandatory human rights assessment and that there is an acknowledgement that there must be a data processing assessment and so on. I welcome those provisions. The Minister must forgive me for straying again but it is all relevant. When we were debating Report Stage of the Mother and Baby Institutions Payment Scheme Bill 2022 yesterday, one of the things that was lacking from the title was putting it in context, which is for what various groups, such as the Irish Human Rights and Equality Commission, the Irish Council for Civil Liberties and various organisations on the ground, asked. We should enshrine in the title the fundamental principles of human rights and then the legislation derives from that. That was not done. It certainly has not been done here. The title is minimalist and underestimates what we are doing.

I try to stay away from my own opinion even though I am after telling the Minister I am very sceptical. I do my best to read the documents of the experts who went before the Joint Committee on Justice. I welcome the report of the joint committee and the work that went into prelegislative scrutiny. I am often standing here criticising the fact that prelegislative scrutiny has not happened. In this case, it did happen and I want to acknowledge that. The Irish Council for Civil Liberties states that it has concerns about this Bill which proposes to significantly expand the ability of gardaí, including civilian and reserve gardaí, to monitor people's behaviour in public spaces. It states that this will impact people's rights to privacy, data protection, freedom of expression, freedom of assembly, and will engage protections against non-discrimination. I do not think we can disagree about what is set out here, maybe on the extent to which the Bill is infringing those rights. I think the Minister will accept that it is infringing. That has been acknowledged.

It is important to address the right to privacy because it is not set out anywhere. The right to privacy is protected by Bunreacht na hÉireann, the European Charter of Fundamental Rights, and the European Convention on Human Rights. Of course it may be limited and I am sure the colleagues to my right more learned than I are going to talk about that. The right to privacy is protected in all of these legal instruments. The Data Protection Act 2018, which is fundamental, gives effect to the General Data Protection Regulation, GDPR, with which we are all semi-familiar, and the law enforcement directive. Parts 5 and 6 of the 2018 Act concern the processing of personal data by data controllers who are competent for their role. Local authorities and the Garda have utterly failed to comply with their obligations in the operation of CCTV cameras.

That is not my opinion; that is the Data Protection Commissioner's opinion and I understand that the Data Protection Commission is continuing in its investigations into Garda stations and 31 local authorities. In general terms, article 5 of the GDPR sets out key principles which are central to data protection, namely:

Lawfulness, fairness and transparency; purpose limitation [so we do not have creep. If there is a reason and a purpose it should be set out clearly.]; data minimisation; accuracy; storage limitation; integrity and confidentiality; and accountability.

I thank the Library and Research Service for setting this out for us in the Bill digest, and I want to thank the ICCL, the Irish Human Rights and Equality Commission, IHREC, and all of the other organisations that have made submissions and helped us. The Bill digest states:

the European Convention on Human Rights and the EU Charter of Fundamental Rights allow for an encroachment upon the right to privacy where it is necessary and proportionate to do so. The use of technology for law enforcement purposes gives rise to such an infringement on the individual’s right to privacy and data protection. [It has to be done in proportionate and necessary way.] To ensure that such infringements are necessary and proportionate, the European Data Protection Supervisor recommends: “... a law enforcement measure, if and when assessed to be necessary, should then be analysed according to whether it would be more proportionate if it were limited to only serious crimes." [and it goes on to expand on that.] With respect to video-surveillance [which is an integral part of this, in all its forms, including drones], the EDPS also stated that such "systems should not be installed if they are not effective in achieving their purposes, for example, if they merely provide the illusion of greater security".

In all my political career I have heard certain segments of people on the ground and councillors crying out for more CCTV cameras. I remember doing a lot of research at the time and gathering up the research papers and there was no evidence to justify the installation of CCTV cameras in the manner in which they were being installed. If we fast forward to 2023 it is more than 22 years later and the evidence on what we are putting through here is, at the very least, inconclusive. The Minister talked about evidence this morning when he was interviewed and I noticed that there was a complete failure to follow up on what that evidence is because I would love to see it. I have read all of those documents and the evidence on the surveillance we are carrying out is, at best, contradictory and inconclusive. These organisations have asked us to be careful in what we are doing, and that includes the Policing Authority. They are of graded opinions on what they find of concern. The ICCL is the most outspoken on its concerns. The Policing Authority had great concerns as well, although it saw some advantage in the Bill. It said it depended on how it was managed and protected and on the oversight.

I see the Chair of the Committee on Justice, Deputy Lawless, is here, and I have already thanked him for the committee’s work and detailed scrutiny of the Bill. We have 15 recommendations from that committee, having looked at and listened to all of these submissions. It recommended:

that the Codes of Practice covering Head 2 ensure that the information and data collected by body-worn cameras... and CCTV devices will not use Facial Recognition Technology [that is recommendation no. 1]... and will not be used to racially profile members of the public.

I will leave it to the Chair of the committee to go through the recommendations but what jumps out at me is that it recommended: "a pilot scheme to trial the use of recording devices and BWCs" [body-worn cameras].

Part 2 of the Bill concerns the operation of recording devices by the Garda. This part does not include CCTV or ANPR. It includes the use of a device that is remotely controlled and can be attached to an animal. It states that its use must be “necessary and proportionate” and in line with “an applicable code of practice”. There are no codes of practice to be seen anywhere. I would have thought we would have seen those. I read some explanation that there cannot be a code of practice because of the complexity of procurement and that this has to be sorted out first to see what is appropriate. I welcome the fact that if we are going to go with this the recording devices have to be overt, although I am concerned that the term “in so far as practicable” is in the Bill.

Part 3 of the Bill looks at the use of ANPR. Again, it must be "proportionate” and "data sharing" agreements are mentioned. I am concerned about the “focussed monitoring” of a particular vehicle for up to three months. I am also concerned with the way that can be authorised without the District Court and that the District Court can make in cameradecisions on authorisations and renewals. I understand this was not discussed during pre-legislative scrutiny but I can be corrected on that. I mention the statutory basis for recording phone calls to and from the Garda station. This follows on from the Fennelly Commission and there was no statutory basis up until now for the recording of phone calls. Gardaí have been operating illegally or with no legal status, monitoring or taping people’s phone conversations.

Then we have the change to the legal framework for the authorisation and installation of cameras. This is particularly interesting for me, coming from 17 years in the local authority. Under statute, only Garda personnel and local authorities will be authorised to operate such schemes. Why is that? It is because the Data Protection Commission is still carrying out investigations? I am subject to the Minister’s correction on that. The Data Protection Commission has previously investigated the use of CCTV for law enforcement purposes and found several infringements. This Bill is seeking to correct that situation. However, my difficulty is the Data Protection Commission is still carrying out its investigations, and these are the most serious infringements without any contract or written agreement between the local authority and the Garda or a third party operator. There are many other infringements and we are not waiting for that investigation to be completed. What I have read is of serous concern to me. I was part of a local authority that saw the operation of those CCTV cameras without any clarity or legal basis. The legal basis that was there was infringed by both the Garda and the local authority personnel. That is of serious concern to me.

Then there is part 6 of the Bill, which concerns the power of a member of the Garda to process live feeds of third party CCTV. The listeners need to know we are giving the power to the Garda to access, in whatever manner is appropriate, remotely or otherwise, CCTV cameras somewhere else outside of Garda operation and operated by a third party. We are going to do that without any judicial authorisation in certain situations. In other situations there will be judicial authorisation and then that authorisation can go on for quite some time. I have huge difficulties with that.

I have already welcomed the mandatory human rights assessment. I am nearing the end of my time so I will stick to quotes form the organisations. The European Convention on Human Rights stated that the use of surveillance technology should be particularly precise, considering their invasiveness and the potential for the sophistication in technology to increase over time. The test of being "necessary and proportionate" is mentioned 16 times in the Bill. The staff in my office outlined this, as did the staff in the Library and Research Service. However, there are no criteria in the Bill which define how this test will be carried out. As mentioned already, the ICCL talks about the vast expansion of the surveillance powers of the Garda, without sufficient evidence that these developments are necessary in an Irish context and under our international obligations, proportionate to the risk they pose to a range of rights.

The Policing Authority is not known to be very radical, and it has done great work during Covid. I read all of its reports and it expressed concerns about the use of recording devices such as drones. It expressed concern that they would become normalised and recommended that the legislation set out the principles and standards of accountability and oversight. We have all the other worries about profiling and bias, which are built into the technology as I understand it. We also have concerns over policing in certain areas and there is generally a whole range of concerns that I would have thought should have been teased out in the Minister’s speech.

While we want to protect the Garda, it must be done within the context of human rights and in a limited way for a limited purpose that is proportionate and necessary. That is not what is happening here. That is not what the ICCL believes is happening. It tells us that it will go on to look at facial recognition technology, which was never discussed, yet, the Ministers, Deputies Harris and McEntee, state that they will produce an amendment. Deputies have been deprived of the process of pre-legislative scrutiny on that. It will be brought forward as an amendment.

The ICCL is concerned that the Bill will enable gardaí to routinely collect, retain, store and search vast amounts of the personal data relating to members of the public. It believes that facial recognition technology has no place in Irish policing and goes on to clarify why that is the case . It has great concerns about the live feed, which I share, relating to the Garda accessing third-party video or CCTV footage with or without District Court judge approval, depending on the situation.

This legislation is wrong. The Garda needs protection. There could be a place for cameras, depending how they are monitored, how the data is collected, who uses them, when they are used and when they are switched off. I noted various comments about domestic violence by the Minister. I am a little cynical in that regard, particularly as someone who has repeatedly addressed the issue of domestic and gender-based violence in the House and what is lacking in that area. Suddenly, body-worn cameras will be a great asset when a garda attends a domestic incident. I am a little cynical about such use. The Minister might clarify whether that was discussed with Women's Aid and all the other organisations that have been in contact with Deputies.

See this speech in context