Clare Daly (Dublin North, United Left)
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7. To ask the Minister for Justice and Equality to review the Interception of Postal Packages and Telecommunications Messages Act 1993 and the Criminal Justice (Surveillance) Act 2009 to protect the privacy and human rights of citizens. [3014/16]

Clare Daly (Dublin North, United Left)
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This question relates to the previous one on foot of the Minister's decision to have a review of the 2011 Act regarding journalists' records. It obviously arose from the controversy and media backlash over GSOC accessing journalists' phone records, which was a little ironic given that some of the most vociferous objectors to the powers of surveillance for GSOC over the Garda are some of the quietest people with regard to the Garda exercising powers of surveillance. Nonetheless, it gives a very welcome opportunity to review the 2009 Act and the 1993 Act from the point of view of respecting the privacy of all citizens and not just journalists. While I know the Minister's plans in that regard, we should debate it further because it needs to be looked at.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As I have said, the 1993 legislation provides that an authorisation for interception may only be granted by ministerial warrant on application from the Garda Commissioner, the Chief of Staff of the Defence Forces or the chairperson of the Garda Síochána Ombudsman Commission, and only for the purposes of the investigation of serious crime or protecting the security of the State as set out in the 1993 Act and in accordance with the relevant statutory provisions.

As I said in reply to Deputy Wallace, the 2009 Act clearly provides that authorisation must be by the District Court on application by a senior officer of the relevant bodies for the purposes prescribed under that Act.

These Acts were passed by the Oireachtas and it was agreed to have judicial oversight of their operation - that is in law. They report directly to the Taoiseach. There is a complaints referee, who is a judge of the Circuit Court. All of these judges take their roles very seriously and operate completely independently.

The powers we have given to the relevant bodies arise in the context of investigating serious crime, that is to say, offences that carry a penalty of five or more years in prison, or for safeguarding the security of the State by the Garda Síochána or the Defence Forces. I will not restate the point I made earlier about how important it is to have these tools available to the relevant bodies.

There is no question of widespread powers being used casually. The investigatory powers that are set out in law are circumscribed as to their use not only by the provisions of the relevant Acts, but also by the statutory limits on the powers in the legislation as regards each of the bodies.

Clare Daly (Dublin North, United Left)
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Nobody suggests that every householder in Ireland is under surveillance or anything like that. It comes down to how serious crime is defined and what oversight is provided. What some people might deem to be a peaceful but robust protest, other people would deem to be kidnapping and so on. The problem is that we have weak monitoring and oversight of the surveillance powers that exist, which in itself emboldens rogue elements and facilitates bad practice. There is not judicial oversight in all circumstances. Senior gardaí can self-authorise where they claim it is an emergency.

On the judicial involvement, we have no records. We cannot say with certainty because the records and reports produced by the judges are very limited. Digital Rights Ireland has pointed out that one of the judges did a very thorough job but in general the reports are on one page and they repeat a standard formula - nothing to see here.

The provisions under the 1993 Act are even worse. The judge carries out a review of thousands of data records every year and completes that exercise in one day, visiting McKee Barracks, the Garda general headquarters in the Phoenix Park, the Department of Justice and Equality, and the Revenue. None of the reports has given any information on the number of requests and their purpose, as happens in the UK and even in the United States.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I have a detailed report before me on the review of the operation of the Criminal Justice (Surveillance) Act, which was presented to the Taoiseach by Mr. Justice Robert Eagar. That is available and I believe the Deputy has referenced it. It contains considerable detail. By its very nature, there will not be the level of detail because of particular issues relating to the serious crime that is being investigated. However, there must be limits on these powers, and I certainly agree with the Deputy that we need oversight and a balance between the competing rights. We must always be prepared to review and, if need be, either extend or restrict these powers.

It is important to keep the general law in this area under review. The former Attorney General and Supreme Court judge, Mr. Justice John Murray, is carrying out a review. With his vast experience in the European Courts, it will be interesting to examine what he reports about best practice. I certainly want to ensure we have best practice in this area. Clearly, these are essential tools that the Garda needs to address the challenges it faces. However, if there is a need for further oversight, that can be considered. We will have that report which will be important in guiding us regarding journalists, for whom there are particular issues such as protection of sources. There are always developments in law. If it comes across clearly that further oversight mechanisms are required, I am sure that will be examined in the coming months.

Clare Daly (Dublin North, United Left)
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We already have that knowledge. The Government's human rights watchdog has stated that we need to review this. Internationally Ireland is out of kilter. The Minister has repeated that the information cannot be given for security reasons and so on. Even in Britain the report that is published runs to hundreds of pages and details the numbers of operations, the reasons for each operation and even catastrophic failures where mistakes were made. How can we learn if we do not have that information? Even in the United States, the NSA reports for Congress have that type of detail.

The exclusion of ordinary surveillance from any of these Acts needs to be looked at. Who monitors that people could be trailed or have their houses or cars watched? There is none of this and it only applies to devices. The privacy of citizens is really important. This was sparked by the privacy of journalists whose stories were actually invading the privacy of citizens, which is a separate issue. The privacy of people needs to be balanced and protected, but that is for everybody and not just journalists. I appeal to the Minister to include the other Acts and to extend it to the records of citizens and not just journalists.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Deputy has made an important point about privacy. In this House in 2014 she asked me to carry out an inquiry into the leaking of information to the media regarding the Roma children. At that time she said, "the Minister could do some work about sources in An Garda Síochána leaking information to the media". She made that point quite strongly.

Clare Daly (Dublin North, United Left)
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I agree with the Minister 100%.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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She also said that GSOC should have the kinds of the powers I have said today are important. The Garda is under strong legal obligations under the 2005 Act regarding the privacy of individuals. Let us ensure that is also on the table. It is about a balance of interests, as she has said.

The Deputy said that Ireland is out of kilter with other countries. I have very clearly asked Mr. Justice Murray to examine the international situation.

One can see that we are not out of kilter when one looks at quite a number of countries. We saw what happened recently in France and Belgium. We do not have to go very far to see the type of powers the French must use. I do not want to exaggerate this because terrorism is one issue, and a very important issue, but clearly the French are in an emergency situation and have had to give very wide-ranging access powers to their police forces to deal with terrorism. This is a very clear example of where this tool is needed. There are incidents in Ireland of many forms of criminal activity where the Garda must act very quickly to access information to safeguard children and adults in dangerous situations. We need a balanced debate on this.

Michael Kitt (Galway East, Fianna Fail)
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On Question No. 8, the Deputy is not present, so I call Deputy Niall Collins on Question No. 9.