Clare Daly (Dublin North, United Left)
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Deputy Wallace and I are very glad that the issue of surveillance and intrusion into the lives of citizens is finally being addressed and a topic of conversation. We have consistently tried to raise it in this House but to the complete disinterest of the media and political establishment. There is a certain double standard in the outcry over GSOC accessing of journalist phone records and the response has been entirely disproportionate.

Citizens have had their telephone conversations from prison with their solicitors tapped into and intercepted. Gardaí have been involved in some activity which has also been largely unmonitored. It is important to say the information GSOC was seeking was part of a criminal investigation into alleged Garda criminal activity. We know that there has been a huge problem with gardaí giving information to the press, which is often not in the public interest and breaches the privacy of citizens. It is very common and there is no action or accountability when it happens. Gardaí have to be accountable to somebody and, in this instance, GSOC is the body responsible. Its powers which are now in the public spotlight are powers which the Garda and other organisations also have. It is really important that we seize the opportunity, now that this information is coming into the public domain and somehow striking a chord in a way it never did before, to look at this issue because the right to privacy and other fundamental human rights are important. The Minister says she is to have a review, but it seems she is only reviewing the 2011 Act with regard to information on journalists. We need a review of the 2009 Surveillance Act and the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. That review must be conducted in the interests of all citizens, not just journalists, because citizens' rights have been abused. I did not see too many journalists who were concerned about the issue up to now.

Mick Wallace (Wexford, Independent)
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In December 2014 the Minister for Justice and Equality, Deputy Frances Fitzgerald, stated there was no question of mass surveillance being carried out in Ireland. She went on to say, when I raised the matter in the House, that the implications of the reports were that it was happening within the jurisdiction of the United Kingdom. However, she also said:

It is very clear that every country makes its own legal arrangements for lawful interception. I would expect [that any] such measures, if they were ever in operation, would have a proper legal basis and [that] the level of interference [would] be proportionate to the aims sought to be achieved, in any given country's legal approach.

In February 2015 the investigatory powers tribunal in the United Kingdom ruled that the large-scale interception and collection of the public's personal communications data by Government Communications Headquarters, GCHQ, in the United Kingdom and the National Security Agency, NSA, in the United States was illegal. Furthermore, it was illegal prior to Mr. Snowden's disclosure of the vast GCHQ and NSA mass surveillance programme. The two spying programmes under investigation were Prism and Upstream. Under the Upstream programme data were accessed in bulk using fibre-optic communications cables, including all major undersea cables carrying almost all communications between ordinary citizens in Ireland.

I asked the Minister multiple questions about this issue in January and June 2015 and she repeatedly gave the same answer, suggesting these were just media reports and that nothing unlawful was going on. She said the Minister for Foreign Affairs and Trade, Deputy Charles Flanagan, had received assurances from the United Kingdom that nothing was going on, even after GCHQ's oversight body had found it had been in breach of the law.

I, too, think that before GSOC can look at anyone's phone, it should have to go before a court. However, as we have argued before in this Chamber with the Minister and her predecessor, Deputy Alan Shatter, so too should the Garda. The idea that a garda can actually go to a superintendent or someone higher to obtain permission to interfere with someone's communications facilities is madness. It just does not work and the people of Ireland do not want it to happen. Journalists do not want it to happen and neither do citizens. We do not want our phones to be tapped and do not want to give anybody, including the Garda, the power to tap them without having to go before a court first. If there is criminal activity, it should be able to obtain a permit through the courts. The idea of a yearly review and rubber-stamping everything that went on is nonsense for everybody, including GSOC and the Garda.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I am sure all in this House will share my view that a free press plays an essential role in a democratic society in fostering full, free and informed debate on all issues of public concern. It is, therefore, of fundamental importance that journalists be able to carry out their legitimate work unhindered.

Concerns have been expressed in recent days on the question of access to the telephone records of journalists in the context of a criminal investigation being carried out by the Garda Síochána Ombudsman Commission, GSOC. Access to communications data is governed by the Communications (Data Retention) Act 2011. I must emphasise that I do not have any role, nor does my Department, in the process of requesting or authorising access to telephone records or logs under the 2011 Act; nor do I receive information on specific requests made in the course of those investigations. We have had many calls for strong, independent monitoring in various arenas and that is what we set up in GSOC. It would not be appropriate, in the context of the independent functions of bodies such as GSOC, for me to have that kind of information. It is an independent body which acts independently. As the House will be aware, genuine concerns have, however, been raised about the balance in the current law between the important freedom journalists should rightly have to pursue legitimate matters of public interest and the basic right of persons not to have their personal information improperly disclosed. This raises very complex issues. We are talking about the various balances between, for example, criminal investigation, the public interest, protecting sources and the rights of victims. These are fundamental issues for any society and democracy to manage in the best possible way.

I went to the Government today and it agreed to my proposal to establish an independent review of the law in respect of access to the telephone records of journalists. The review will cover all bodies that can have access to records under the Data Retention Act, including GSOC, An Garda Síochána, the Revenue Commissioners and the Defence Forces. The 2011 Act which was introduced by the former Minister Mr. Dermot Ahern in 2011 provides all of these bodies with that authority. I am pleased that the distinguished former Chief Justice John Murray who was also a former member of the European Court of Justice has agreed to carry out the review. I express my appreciation for his immediate agreement to conduct the review which I expect and anticipate will be completed in three months. It is about looking at the issue and getting a speedy report on the legislation.

Mr. Murray will be examining whether further safeguards are necessary. I have also asked him to look at the international situation. The draft terms of reference for the review are to examine the legislative framework in respect of access by statutory bodies to communications data of journalists held by communications service providers, taking into account the principle of protection of journalistic sources, the need for statutory bodies with investigative and-or prosecution powers to have access to data in order to prevent and detect serious crime, and current best international practice in this area. There must be clear criteria for accessing these records. It must be in respect of a serious offence which is punishable by a term of imprisonment of up to five years.

With regard to GSOC, in particular, while fully respecting the independence of the Ombudsman Commission, I was glad to meet this morning its chairperson, Ms Justice Mary Ellen Ring who was appointed by the Government some months ago and is a judge of the High Court. She has assured me of the clear and strict procedures in place in GSOC in this area and that it is operating fully within the law. She emphasised to me that GSOC requests for access to telephone records were decided at the level of the chairperson. As the Deputies said, within An Garda Síochána there is a request from a superintendent which is decided at chief superintendent level.

I have assured Ms Justice Ring - I emphasise this point to the House - that there is no question whatsoever of the review of the law in this area reflecting any lack of confidence in GSOC. The review arises not from the facts of any particular case but from the genuine concerns raised about the overall balance of the law in this area. While I am sure Deputies share my view that statutory bodies investigating offences need to have the appropriate statutory powers available to them to carry out their duties which are very important, we need to examine the balance in respect of entirely legitimate journalistic activity being carried out in the public interest. That is what I envisage being done in the review.

Clare Daly (Dublin North, United Left)
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I have to say the Minister's response is completely inadequate and off the mark. The review of the 2011 Act in regard to journalists is not enough. All citizens deserve to have their privacy and human rights protected, and the rightful outcry in regard to journalists' phones being intercepted should be shared in regard to other citizens' rights. The Criminal Justice (Surveillance) Act 2009 allows the Garda to break into somebody's house, to plant devices, to carry out secret recordings and to put a tracking device on a person's car. Some of these activities can be done on the say-so of a superior officer without any oversight or scrutiny, or any definitive figures being produced afterwards. This is not good enough. Privacy and human rights are deserved by all. I appeal to the Minister to look at the situation regarding all of the surveillance legislation which is on our books, the use of that and the powers that rest with the Garda, the Revenue Commissioners, the Defence Forces and other State bodies which are not open to proper scrutiny or freedom of information requests. It is not just a matter for GSOC. If the Minister was serious about freedom of the press and citizens' humans rights, those aspects would be examined as well.

Mick Wallace (Wexford, Independent)
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I too have serious concerns about surveillance in Ireland. We have not had much assurance in the past couple of years. We do not measure up to international best practice and this is an excellent opportunity to address many of the issues and concerns people now have in this area.

I found it interesting that the Association of Garda Sergeants and Inspectors was so eager to jump all over GSOC again, and it is laughable how it reacts sometimes. I read a very good letter in The Irish Timesthis morning by Ray Leonard. He stated:

I would suggest that any journalist aggrieved by GSOC’s actions should make a complaint under section 109 of the 2005 Act and seek a review of those actions by a High Court judge. I would be surprised if such a review found GSOC to have acted excessively but in the event that it did, then the public, the Garda Síochána (and the journalists) have a right to know and to ensure that such actions are corrected. This would also serve to assist GSOC in testing its processes and providing needed external quality control.

He has brought a bit of balance to the debate. I would again reinforce the need to protect the communication facilities of all citizens, not just journalists.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As that letter pointed out, under the current legislation, a report is done every year by a judge who, I am satisfied, has access to all of the records he needs. In this instance, the most recent report was published in November 2015 by Judge Paul McDermott. As Deputy Wallace rightly points out, there is an opportunity, if one has a complaint, to take it up, and there is an identified judge, Judge Hanna of the Circuit Court, who deals with complaints which are made in regard to any such access to records, if an individual has a complaint in regard to it.

To take up Deputy Daly's point, the various bodies which are named in the 2011 Act will also be considered, as I have made very clear. This is not just about GSOC but also about the access that An Garda Síochána, the Revenue Commissioners and the Defence Forces have in regard to these powers. This is included in the term of reference.

It is important to again put on the record of the House that the purpose of the Communications (Retention of Data) Act 2011 is not to pry into the communications or privacy of individuals but to support the work of statutory agencies which are carrying out important work in investigating what have to be serious criminal offences - that is the criteria. This clearly is a key factor in determining whether the decision is agreed to give access to those records. I think most fair-minded people in this House would agree these powers are necessary; the question is what are the appropriate checks and balances. That is precisely what I have asked the judge to review because, of course, we must have the strongest checks and balances possible in view of the importance of these issues. There are balances, and I have mentioned the balance between privacy and criminal investigation, defending the public interest, the rights of victims and, of course, the rights of journalists to protect their sources. These are the issues that will be taken into account.

When we are considering the rights of journalists, I would make the point that we must also take into account the very legitimate rights of a person or their family not to have personal information put in the public arena. We have to realise how very distressing it can be for individuals and families when information is leaked.

As I said, this review will be carried out by the former Chief Justice, Mr. Justice Murray. I believe this is a measured and responsible response to the issues raised, rather than rushing headlong into a legislative amendment. We need to consider these very complex issues.