Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I thank the Minister for coming to the House to address this issue. I raised this matter yesterday and what we have seen in the media so far is highly disturbing. I do not always believe everything or, indeed, anything that is published in the Irish Independentso I acquainted myself through other means with some of the background to the story. Apparently a highly decorated detective was taking a case against the State for bullying that he endured in An Garda Síochána. He alleges that he was forced to put illegal phone taps and traces on innocent people. There was no authority given to track their phones or to listen in to their conversations, in some cases for months on end.

There have been numerous phone tapping scandals over the years in this State. The Taoiseach said in 2013 that he operated on the presumption that somebody was listening in to his phone calls. The Attorney General did not have the confidence to speak over the phone to a former Minister for Justice and Equality, former Deputy Alan Shatter, and had to speak to him in person. When the former Deputy Michael McDowell was Minister for Justice, Equality and Law Reform, he refused to confirm or deny that the phones of Deputies were being tapped. He finally admitted in 2003 that the phones of a number of Deputies in this House were tapped. Journalists' phones were tapped and Deputy Catherine Murphy uses burner phones on the presumption that her phone was being tapped when she was looking into the Siteserv issue. The whole thing is rotten.

When did the Minister become aware of the full extent of the disclosures from this officer?

Clare Daly (Dublin Fingal, Independent)
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There is a certain irony in the furore in the media and among politicians regarding the issues of phone tapping and surveillance. It is as if this is a big revelation, that nobody knew this was going on and that it is a big surprise. This is not a surprise. Our legislation, passed by Members in this House as recently as 2009 and 2011, allows for lawful surveillance of citizens. I have no doubt the Minister will say that there are perfectly legitimate reasons for that, including counteracting terrorism, serious crime and so forth. We are told that there are safeguards in place to ensure that the privacy and human rights of citizens are protected but myself and Deputy Wallace have pointed out in this House, particularly during the last Dáil but also in this one, on numerous occasions that the Postal and Telecommunications Services Act 1993, the Criminal Justice (Surveillance) Act 2009 and the Communications (Retention of Data) Act 2011 are not fit for purpose because they do not balance the rights in that regard. The Minister will say the Defences Forces, An Garda Síochána, the Revenue Commissioners and the Department of Justice and Equality can seek to have peoples' phones tapped and to have their records looked at but that there is oversight, that a judge has to look at that at the end of the day. However, as we have pointed out, the judge who compiles that report goes in on one day, asks to see one or two requests out of thousands and then says that he or she was given everything asked for. That is not proper oversight and scrutiny.

A review was initiated last year when the media suddenly woke up to this issue when the phone records of some members of the media were being requested by GSOC. Those people were involved in criminality and GSOC was investigating criminal behaviour on the part of gardaí. That is when the media got interested. When are we going to review the 1993 and the 2009 Acts, which are open to wholesale abuse?

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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It does not surprise me but it is completely scandalous that we have revelations from yet another Garda whistleblower alleging that innocent people's phones are being tapped. In one case, according to the allegation, a sitting Deputy had his or her phone tapped by An Garda Síochána, possibly as a result of pressure from a Minister. Certainly, the whistleblower believes it was a political move by a Minister at the time. The garda was subsequently transferred which certainly suggests that there was something seriously amiss and that the correct procedures for getting these taps were not being followed.

Deputy Clare Daly has alluded to the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, which allows for bugging. The Criminal Justice (Surveillance) Act 2009 allows the police to break into one's house to install cameras and to come back after three months to take those cameras out. One might not know they were ever in one's house. There have been extraordinary allegations that all this is being done without proper procedure and oversight, and possibly for political reasons. The Taoiseach is supposed to get an annual report on complaints, but we have been told that no such records can be found, which is unacceptable. Will the Tánaiste get these reports? If there are any irregularities, will she hand the names over to the Director of Public Prosecutions? Can she say how times phone and mail surveillance has been authorised by her and other justice Ministers under her Government? How many of these cases of surveillance were political?

Eamon Ryan (Dublin Bay South, Green Party)
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It is important to try to get to the bottom of this story. We need to find out whether it is true. If it is true, we must find out who the people involved are. I take Deputy Clare Daly's point that this should not just be about the political system. We have this example. I was interested to listen to what the Taoiseach said yesterday when this matter was raised in the Dáil. My reading of what he said was that having seen the report of the review of the period in question, he does not think there is any evidence of anything. Is that the limit of the investigation we are doing? Given that a whistleblower has raised concerns about an incident involving his removal or change of position, is it not possible for the Minister for Justice and Equality to take targeted measures to find out whether this case is real? If it transpires that it is real, we need to get the details and ascertain how they can be shared. It is important for a variety of reasons that this should be done. I share the concerns expressed by Deputies Ó Snodaigh, Clare Daly and Boyd Barrett about the widespread use of surveillance by the Irish authorities and by the authorities in the UK, the US and elsewhere. Examples of such activity can be seen around the world at present. It is important for those of us in the political system to appreciate that if there is any sense that an office on the Government side is being used to put surveillance on the other side, that is hugely damaging to trust in the political system. It is very important for us to find out who it is. Until we do that, a whiff of suspicion and rumour will surround anyone who might possibly be involved, even though he or she might be completely innocent. We need to get to the bottom of this to clear everyone's name. We need to uncover whether this is true, who exactly was involved and what the consequences will be for the individuals in question.

Mick Wallace (Wexford, Independent)
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This is the 13th time we have raised this issue in this Chamber. We have not been getting a whole lot of satisfaction. In January 2016, the Minister, Deputy Fitzgerald, announced a review of the Communications (Retention of Data) Act 2011 regarding information on journalists only. We pointed out that the review should be all-encompassing and should include the Criminal Justice (Surveillance) Act 2009, the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, as well as the 2011 Act, because all three Acts give State agencies the power to abuse the privacy of Irish citizens and not just journalists. The Tánaiste has said that the former Chief Justice, John L. Murray, has completed the report of this review. According to the Tánaiste, this report has been on her desk since 27 April last. When does she intend to publish the report? It seems that following the settlement of a High Court case involving a retired detective, the Garda brought the matter to the attention of the designated judge. Will the Minister tell us how soon after the High Court settlement this matter was referred to the judge? We met a garda who works in this area not so long ago. This individual, who was present when the designated judge came around in three separate years, told us that the manner in which this duty was carried out was a joke. The judge was given a cup of tea, asked to be given a look at this one and that one and said "have a good day, good luck". The system does not stand up to any scrutiny. It leaves a lot to be desired. It beggars belief that the Tánaiste is refusing to revisit it. We need to do things differently. The same assessment in England runs to 99 pages each year. Ours is just a rubber-stamping job.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I thank the Ceann Comhairle for giving me an opportunity to address this matter. While it has been alleged in recent reports that there have been abuses in the interception of communications, it would be quite wrong to suggest it has been established that there has been widespread abuse of the interception system. Of course any abuse would be completely unacceptable. The reports do not specify the timeframe for these allegations, but I understand, in so far as it can be established, that they relate to the early 2000s. Plainly, it would be a matter of concern if there were any abuses of the system for intercepting communications. The notorious improper interception of journalists phones in the early 1980s led to the current legislation, which contains strong safeguards to ensure the system of interceptions is operated properly. As Deputies are aware, the interception of phones is governed by the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, which sets out clearly and in detail the arrangements for giving effect to an interception.

It is important to use the short time available to me to give the House a full understanding of the multilayered checks and balances in the system. A Minister for Justice and Equality cannot initiate a warrant and can only act on applications made to him or her. A Minister for Justice and Equality does not and would not have any access to the content of any interception that may be made. The 1993 Act provides that only the Minister for Justice and Equality may grant authorisations to intercept communications; that this may be done only on the basis of a reasoned application from the Garda Commissioner, the Chief of Staff of the Defence Forces or the chairperson of the Garda Síochána Ombudsman Commission; that this may be done only for the purposes of the investigation of serious crime and in the interests of the security of the State; and that this may be done only when a number of strict tests, as set out in detail in sections 4 and 5 of the 1993 Act, are satisfied.

The conditions that apply to "serious crime" are that an investigation is being carried out into a serious crime or to prevent a serious crime, and that investigations not involving interception have not produced and are unlikely to produce the necessary information or evidence and that interception is likely to do so, and that the importance of obtaining the information justifies the interception notwithstanding the interference with privacy. The conditions that apply to protecting "the security of the State" are that investigations are being carried out based on a reasonable belief that activities which are going on endanger the State's security, and that investigations not involving interception have not produced and are not likely to produce the necessary information or evidence and that interception is likely to do so, and that the importance of obtaining the information justifies the interception notwithstanding the interference with privacy. As a further check, all applications must be considered by a senior officer of the Department before being submitted to the Minister to ensure the conditions set out in the Act are satisfied. All applications from the Chief of Staff of the Defence Forces must also be recommended by the Minister for Defence before submission.

The designated serving judge of the High Court who independently oversees these matters must report to the Taoiseach at least once a year on the operation of the Act. Over the years, these reports, which are laid before the Oireachtas, have confirmed that the Garda and Army authorities have been in compliance with the Act. There has been some adverse reflection on the work of the designated judges. I must say this is utterly ill-founded. One should not underestimate for a moment the importance of the constitutional independence of the designated judges or, indeed, the considerable experience and abilities of the individuals who have carried out that role with distinction. The designated judge has full powers of access to all relevant people and documents. There is a corresponding obligation in law on all relevant people to co-operate. The current designated judge is Ms Justice Marie Baker. She is aware of the matters in question as they were raised with her by the Garda authorities. It is a matter for her to decide what action she will take in respect of these issues.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I do not know which of the recent Garda Commissioners - Pat Byrne, Noel Conroy, Fachtna Murphy or Martin Callinan - the Tánaiste has just tried to hang by saying she understands these actions "relate to the early 2000s".

The information I have is that these actions did not only happen in the early 2000s but that they have continued up to this day, and that implicates the current Garda Commissioner, who also happened to be the assistant commissioner dealing with security issues such as phone tapping from 2009 to 2011. Let us not forget that. The Minister cannot simply ignore the role-----

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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The Acting Chairman is interrupting my time but I have not made any charges, I said that-----

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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-----the current Garda Commissioner was an assistant commissioner from 2009 to 2011.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I am advising the Acting Chairman of what I said, if he would listen. From 2009 to 2009 the Garda Commissioner was the assistant commissioner dealing with the security matters which are covered in these allegations. I also believe the information I have-----

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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You have interrupted me. The information I have is that Garda whistleblowers' phones are being tapped up to the present day and those of journalists, Deputies and campaigners are routinely monitored.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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How many of these were made in error? How many of these are being listened to and traced illegally? There is a range of questions on this----

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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-----but the opportunity to raise them is not being given to me.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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You interrupted me for 20 seconds. I am finishing by using the minute that I was given.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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In fairness to the other Deputies, I will not finish my time, but you are disgrace in that Chair. You are totally partisan on this.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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You did not allow me the time to speak and interrupted me by making a scurrilous comment.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I refuse to do so.

Clare Daly (Dublin Fingal, Independent)
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The Minister said there is no evidence of widespread abuse. I put it to her that widespread abuse is lawful under our present system of surveillance. Despite the protestations about checks, restrictions and oversight, the reality is that our laws allow for wholesale covert surveillance without proper scrutiny and oversight. Sections 7 and 8 of the 2009 Act specifically allow for tracking devices to be placed on citizens' cars without going to any judicial authority for approval. It allows for a senior officer above the rank of superintendent to basically certify themselves to carry out covert surveillance on citizens. The reports the Judiciary do at the end of the day have no numbers, no reasons are given and there is no proper oversight. They are carried out in a day and a half. That is not fair. We need to have a radical overhaul of all of the legislation in this regard.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Following on from that, the emergency clause in the 2009 Act, which allows a superior officer rather than a judge to carry out these recording or tracking of people doubled between 2009 and 2010. Will the Minister explain what the hell was going on in that period?

I have a direct question for the Minister. During her tenure or the tenure of Ministers for Justice and Equality in this Government, how many phone and mail surveillance operations were authorised and how many of those were political in nature as opposed criminal? Will she comment on the report from the designated judge for 2016 on all the surveillance operations under both Acts and indicate if they were for political or criminal purposes?

Eamon Ryan (Dublin Bay South, Green Party)
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I have the highest regard for Ms Justice Marie Baker. Will the Minister indicate when the judge was informed by the Garda - as was implied by the Minister today - of concerns about this particular reported case? In responding to that incident, will the Minister outline if the judge will report directly to the Taoiseach, as is normal, or will she also report the Minister for Justice and Equality? Will the judge's report in this regard be laid before the House or what is the mechanism whereby we can get to the bottom of this story? It is important that we do so, otherwise anything is possible in terms of who may be involved or what the real implications might be. Can the Minister give me a timeline as to when she expects the judge's report? Has the Department or the Minister finally got sight of the issues that the Garda authorities raised with Ms Justice Baker in this particular instance and when did they raise them?

Mick Wallace (Wexford, Independent)
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The designated judge has issued the same identical two-page report since 2014 with only the year and date changed. That is no reflection on the judge, this is the system, and it leaves a lot to be desired. There is zero detail in it. How can the Minister have confidence in the designated judge system after the March 2014 audit by the Data Protection Commissioner discovered that gardaí were systemically rubber-stamping requests for telephone data after the fact, a practice that is in clear breach of the Communications (Retention of Data) Act 2010 and something which the designated judge has obviously seriously failed to detect? Dr. T. J. McIntyre from Digital Rights Ireland has pointed out that the Irish oversight system is out of line with international practice. He said that in almost all EU member states there are parliamentary committees which can oversee surveillance by security agencies. Ireland is one of only four EU member states which does not make its security agency accountable to Parliament, instead on security matters the Garda Commissioner answers only to the justice Minister who also has the decision to tap phones in the first place.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As I said, public reporting on this issue has not been specific as to the timeframe for these allegations. I have been advised that in May 2008, in the context of illegal action for personal injuries, certain allegations were brought to the attention of the Department of Justice about abuses in the system. These certain matters and questions related to the early 2000s. These matters were brought to the attention of the then designated judge who examined them and concluded that there had been no breaches of the Act. Obviously, the Act has been overseen, as I said, and the designated judges have satisfied themselves that it is being operated in accordance with strict legal requirements. If there is evidence of anything else, that is investigated at any one particular point.

I also understand that following the settlement of a legal case earlier this year, An Garda Síochána contacted the designated judge to bring matters which arose in those legal proceedings to her attention, so the designated judge is aware of these matters and it is a matter for her to decide what, if any, action on her part might be necessary regarding this matters. To answer Deputy Ryan's question, the appropriate person to look into it is the designated judge who, as I have said, has full and independent powers in this regard. If one reads the Act, it is very clear that the functions of a designated judge are prescribed by law and I cannot seek to interfere with the exercise of these powers in any way. The House can be satisfied, however, that a constitutionally independent person is in place with full legal powers to address these matters. The important issue is not the length of the reports but the substance of the process.

Allegations have been made in reports that the phone of a political activist was intercepted at a time in the past. It is never the practice to comment publicly on the use of these powers in any particular case. There are restrictions in the law on the disclosure of the existence of particular interceptions. In respect of allegations made in reports, they have not been very detailed but it would appear, as I have said, they relate to matters alleged to have arisen in the early 2000s. Of course, many in this House will recall that at that time there were people who described themselves as political activists who were at the same time engaged in activities in support of unlawful organisations.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I will conclude by saying that I maintain the long-standing practice of my predecessors not to speak in detail about interceptions. However, I have made it clear previously in this House that I have not used the powers available to me to interfere with the wholly legitimate work of public representatives.