Michael McDowell (Dublin South East, Progressive Democrats)

On the last point, section 85(3) applies the Data Protection Act to this material, therefore, the issue is covered.

What the Senators are asking me to do from two different perspectives is to establish a set of safeguards in Irish domestic law, which we apply to Irish domestic circumstances and which are intended to ensure there is scrutiny and oversight of how this is operated. I am generally sympathetic to the notion that there should be oversight and protections and I intend to examine the issues raised by the Senators before Report Stage. However, in general in the European Union, we have gone down the road of mutual recognition of judicial and court orders and a fundamental strategic decision has been made in this regard. Ireland is very hot on this choice. We have decided not to go down the road of ensuring every member state's law should be the same but all states should recognise each other's legal system as valid and attempt to give effect thereto. That fundamental choice was made a number of years ago on judicial co-operation in Europe and it is based on the pillar of mutual recognition and not on the basis of approximating our laws to have the same laws throughout Europe

If, for example, an Irish judge were to perform in regard to a foreign request for an intercept the same function I carry out in a domestic context, he or she would exercise juridical supervisory control over decisions made by foreign courts or foreign prosecuting magistrates. A number of issues would, therefore, arise. First, is it consistent with the convention for Ireland to establish that additional hurdle for others? I would have to consider that point of European law. Second, how could an Irish judge, apart from seeing that the documentation appeared to be in order, work out whether the basic justification was present? Will he summon officials from France, Luxembourg, Germany or the Czech Republic or wherever to ask them to stand up the application for an intercept and outline in retrospect whether it is correct? This raises an issue of practicality. Would the judge attempt to apply Irish domestic protections to an application that might be based on a different legal system? How practical is it for Ireland to provide its own safeguards, which permit it to erect additional obstacles to mutual legal assistance based on its constitutional jurisprudence, legal system and concept of what is right and wrong? This is not a novel issue, as it also arose in the context of the European arrest warrant.

One must reflect on a number of issues. Before we get to the policy issue, are we entitled to do this or is it desirable? Would it be open to Ireland under the convention to put these safeguards in place? The judicial oversight involved in the interception of telephone calls and postal packages is exercised in retrospect in almost all cases. If, for example, procedures are followed and a designated official in the Department brings to the Minister a request from the Garda Commissioner for the interception of a particular telephone line and I sign the warrant, having examined the file, it is not returned to the judge that day for him or her to countersign it or whatever. He or she is required on an annual basis at the very least to scrutinise what I have been up to in retrospect. The issue is what effect that scrutiny would have if I could not stand up the merits of the transaction.