Maurice Cummins (Fine Gael)

I move amendment No. 20:

In page 32, between lines 21 and 22, to insert the following new subsection:

"(10) All documentation comprising the notification to member states of interception shall be treated as official documents relating to an authorisation, or the application therefor, for the purposes of the Act of 1993, and the provisions of section 8 of the Act of 1993 shall apply.".

One of the main areas of concern highlighted on Second Stage, and by the media, is the interception of communications of Irish citizens living in Ireland by governments of other EU countries. This is covered in Part 3 of the Bill. It allows the Government to request interception in other member states, and other member states to request interception here. This law was previously contained in the Interception of Postal Packets and Telecommunications Messages (Regulations) Act 1993. Section 2 of the Act allows the Minister to authorise an interception provided the criteria set out in section 3 of the Act are satisfied.

An important safeguard is included in the Act in that section 8 allows a designated judge of the High Court to investigate authorisations and to inspect any official documents relating to an authorisation or the application thereof. The judge is to report to the Taoiseach at intervals of not more than 12 months in regard to the general operation of the Act and matters he considered should be reported. This report is to be laid before the Houses of the Oireachtas, together with a statement on whether any matter has been excluded therefrom on the grounds that it would be prejudicial to the detection of crime or the security of the State. I have not been able to find a record of any of these reports being laid before the Houses of the Oireachtas. Nevertheless, it is important to have some form of judicial scrutiny, particularly as the judge can tell the Minister that the authorisation should be cancelled and not extended.

The Bill appears to envisage that the authorisations of requests for interceptions under sections 22 to 24 are authorisations pursuant to section 2 of the Interception of Postal Packets and Telecommunications Message (Regulation) Act 1993. These requests require technical assistance from other member states and from this State. Section 24(8) allows the provision of the 1993 Act to apply to these provisions.

However, there is a second tier of requests whereby if this State does not require technical assistance from another member state, or it does not need technical assistance from this State, it is less clear from the Bill whether this tier will be subject to a report by a designated judge. If a Minister makes an authorisation of an interception under section 2 of the 1993 Act, and then notifies a member state pursuant to section 25 of this Bill, it is important that the documentation sent to the member state after the making of the authorisation is also available for review by the designated judge. Furthermore, a member state can notify the Minister of an interception pursuant to section 26(3) of the Bill if an authorisation would be given under section 2 of the 1993 Act in similar circumstances and in such circumstances the Minister shall allow the interception to be carried out or continued.

Allowing for the interception to be carried out or continued should be treated in the same manner as an authorisation pursuant to section 2 of the 1993 Act and, therefore, may be investigated by a designated judge. As this is not clear from the section, it should be clarified with an amendment. The Minister may require that an interception not be carried out or terminated and give the reasons for so requiring in writing. Again, it should be ensured that the documentation is available for review by the designated judge.

My amendments seek to clarify the situation and bring the Bill into line with the provisions of the Acts. They provide an extra layer of scrutiny and protection to people who may be subject to phone tapping or the interception of telecommunications. We do not have a great history in this regard about which we have spoken on different occasions in the past. It is of paramount importance to deal with this matter in a fully correct manner.