Dáil debates

Wednesday, 27 January 2016

Ceisteanna - Questions - Priority Questions

Garda Síochána Ombudsman Commission

9:30 am

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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1. To ask the Minister for Justice and Equality when she will review the powers of the Garda Síochána Ombudsman Commission; and if she will make a statement on the matter. [3202/16]

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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I have tabled this question in light of the recent issues which have arisen in the media relating to the accessing by GSOC of the phone records of journalists and, by extension, the phone records of people who were in contact with them. The issues surrounding the independence of the broadcasting and journalistic communities which have surfaced have been well aired and these communities, in turn, are seeking to protect their sources and uphold their independence.

9:35 am

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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As the Deputy is aware, the Garda Síochána Ombudsman Commission, GSOC, was established as a statutory independent body under the Garda Síochána Act 2005 to provide independent oversight of complaints made against members of the Garda Síochána. There is widespread support to have such a body. The Garda Síochána Act stipulates that GSOC is independent in the exercise of its functions, which is an important point as Members in this Chamber refer continually to the need for independent bodies. GSOC has been given extensive powers under the 2005 Act. The Garda Síochána (Amendment) Act 2015 amended the 2005 Act to expand GSOC's remit and powers. Deputy Collins may recall that at the time, a number of Deputies sought the granting of further powers to GSOC.

I assume the Deputy's question relates, as he has stated, to concerns that have been expressed widely in the media recently concerning access by GSOC to the telephone records of journalists. I understand this arose in the context of a criminal investigation being carried out by GSOC. It was misreported in recent days that access to telephone records by GSOC was made possible under the amended powers given to it last year but this is not correct. The relevant legislation, which was introduced by the former Minister, Dermot Ahern, is the Communications (Retention of Data) Act 2011. In the course of the debate at that time, there was discussion of the various balances and public interests that must be served under this legislation.

I make the point that I have absolutely no role in the process of requesting or authorising access to telephone records under current legislation and nor do I receive information relating to specific requests made in the course of investigations. That would not be appropriate, given the point I made about the commission being an independent body. However, issues of genuine concern have been raised as to the balance in the law between the important freedom of journalists to pursue legitimate matters of public interest and the basic rights of persons not to have their personal information improperly disclosed. Bodies investigating crime must have the proper appropriate statutory powers available to carry out their duties. However, it is necessary to examine the balance in respect of entirely legitimate journalistic activity being carried out in the public interest. As the Deputy is aware, the Government agreed with my recommendation to establish an independent review carried out by the former Chief Justice, Mr. Justice John Murray, who was a former member of the European Court of Justice. He will carry out the review, which already has commenced and he already has had initial discussions with officials of my Department.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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Apart from what was revealed regarding the access of journalists' telephone records, there also was much public disquiet about the quantity of other people's telephone records that also appear to be accessed. In respect of GSOC, as I have stated throughout my commentary on this issue, it is important to state that no one is above the law and no journalist is above the law either. Everyone must be subject to scrutiny and investigation where that is merited or warranted. The issue here is there does not appear to be transparency regarding the test GSOC applies to ascertain whether it will access the records of a journalist, as well as the fact that the journalist or person in question is not put on notice that he or she is having his or her telephone records accessed. This is why, as the Minister is aware, Fianna Fáil has published a Bill in this regard. The Minister has opted for a review but I believe there should be a High Court process in which an application is made to the High Court. This would be similar to other processes that happen in investigations by An Garda Síochána when, for example, it places telephone taps or listening devices. As part of that process, the journalist in question at least would be allowed to make a submission to the court in this regard.

By way of a supplementary question, the Minister has indicated she has asked Mr. Justice John Murray to conduct a review. She has outlined his qualifications and I could not agree with her more. In that regard, has the Minister asked him to make recommendations on the point that agencies accessing data do not publish details on how many applications they make in the course of a year?

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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Thank you. I will come back to the Deputy.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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In other words, I refer to getting a handle on the quantity of telephone records assessments right across the spectrum each year.

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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As the Deputy is aware, I recently have put various figures into the public arena on the question he has asked. The review's terms of reference are to consider international best practice and the legislative framework. It is the case in respect of all the Acts in this area that judicial reviews are carried out, which is important. The Deputy rightly raises the question as to whether, perhaps with regard to particular categories, there should be access in the first instance to a judge. This is one question I imagine Mr. Justice Murray intends to examine because the question of best practice and, as the Deputy is aware, the European Court of Human Rights issue regarding the protection of journalistic sources have received particular attention. One must make the point immediately that in the case of the investigation of serious crime, it is important that the Garda, GSOC and other bodies are able to take whatever actions they need but obviously having safeguards in place is important. At present, there are reports by judges, as well as a complaints process. I make the point that to date, no complaint has been upheld regarding the use of this tool.

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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I will come back to the Minister and call Deputy Niall Collins. I ask all Members to please observe the clock.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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That is fine.