Frank Fahey (Galway West, Fianna Fail)

Amendments Nos. 6 to 14, inclusive, relate to interception provisions. Amendments Nos. 7, 8 and 11 were raised by Senator Cummins and Senator Brian Hayes on Committee Stage. Amendments Nos. 7 and 11 would bring all documentation on notification of member states of interceptions or applications to member states for interceptions within the terms of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. The amendments sought to allow a review of the interception provisions of this Bill by a judge of the High Court, as is provided for in section 8 of the 1993 Act. At the time the Minister said he would review if it was possible to agree with what was being sought having regard to the provisions of the EU convention.

Having considered the matter further, in consultation with the Office of the Attorney General, the Minister is of the view that bringing authorisations under such provisions within the scope of review by a judge of the High Court, as provided for in section 8 of the 1993 Act, would be not just a useful but also a desirable addition for the purpose of independent oversight of all interception. Towards that end the official amendments Nos. 10, 12 and 14 have been brought forward to meet the concerns expressed by the Senator.

Amendment No. 14 also extends the provision in section 9 of the 1993 Act to the regime encompassed by this Bill. Under section 9 of the 1993 Act there is a provision for a companies complaints referee, who will be a Circuit Court or District Court judge or a barrister or solicitor of ten years' standing appointed by the Taoiseach. He or she may review complaints from individuals about certain aspects of the Act. The oversights envisaged, however, will not obviously, implicitly or explicitly, allow the designated judge to enjoy any degree of extra-territoriality. The oversight rule would be confined solely to decisions and actions taken domestically by the Minister or the Garda. It would not, for example, extend to non-national decision making. Including this provision would not conflict with the interception provisions of the EU convention. I am grateful to Senators Brian Hayes and Cummins for making these proposals.

Amendment No. 8 was also proposed on Committee Stage by Senator Cummins. The amendment seeks to provide that the interception being carried out here by another member state where technical assistance from Ireland is not required will be deemed to be an authorisation within the terms of the Interception of Postal Packages and Telecommunications Messages (Regulations) Act 1993 and the directions which issued to a telecommunications provider should also apply to these interceptions. Section 26(3) provides that if an authorisation is given under section 2 of the 1993 Act, the Minister will agree to allow an interception not requiring technical assistance to be carried out or continued. As technical assistance from the State is not required in this instance, the effect of an interception under section 26(1)(c), the question of the issue of instructions to authorised undertakings under section 110 of the Postal and Telecommunications Services Act 1993 does not arise. The amendment sought, therefore, is unnecessary as the point being made is already catered for in the Bill.

Amendments Nos. 6, 9 and 13 on the part of the Labour Party were previously tabled on Committee Stage. On amendment No. 6 the purpose of this provision is to give effect to Articles 18.6 and 18.7 of the 2000 convention. The provisions included the option of Ireland making a declaration to the EU at the time of ratification of the EU mutual assistance convention that we are unable to provide for immediate interception and transmission of telecommunications to EU member states. In that event, Ireland would be obliged to intercept, record and subsequently transmit telecommunications recordings to the requesting member state if we would make an interception in a similar domestic context. This will be done when the information provided in Articles 18(3) and 18(4) of the 2000 convention is presented by the requesting state. This information relates to issues such as from whom the request is received, the conduct being investigated and the desired duration of the interception etc. The possibility of making the declaration provided for in Article 18(17) is a safeguard and enables us to review the capacity of the telecommunications system we have in operation, prior to ratification.

On Committee Stage, Senator Tuffy was concerned the provision would allow the Minister to change the law by an executive act. This is not the case. Ireland would be obliged to advise the Oireachtas at the time of ratification of any proposed declaration and in the event of any subsequent amendment to that declaration. The Attorney General's office supports this view and for these reasons I cannot support the proposed deletion.

Amendment No. 9, if accepted, would have the effect of Ireland legislating to provide that information obtained prior to the Minister agreeing to an interception where technical assistance from Ireland is not required would not be used except in the specific conditions provided for in Articles 2(4)(b)(ii) of the convention. Ireland cannot legislate to tell other countries what they can or cannot do. We have covered this issue in subsection (5), which provides that the material already intercepted in a number of circumstances, including where an authorisation is not subsequently given, may not be used or may be used under specified conditions which will be outlined by the Minister in writing. These conditions will obviously include, but need not be limited to, those in Article 2(4)(b)(ii) of the convention. The point raised is thus already covered in the Bill and, therefore, the amendment is unnecessary.

Amendment No. 13 requires authorised undertakings in the State to use their best endeavours to access interception equipment in a member state to intercept messages which cannot be directly intercepted in the State. Section 27(2)(d) provides that where the authorised undertaking has received directions to facilitate, and it can facilitate interception by accessing interception equipment in a member state, it will do so by accessing the equipment. To accede to the proposed amendment would run contrary to the provisions in section 27(2)(d) and for that reason I cannot accept it.

Amendments Nos. 10 and 12, which relate to section 26 are merely technical. The first, to section 26(3), replaces the word "allow" with "authorise". This is for the sake of clarity and consistency as "authorise" and "authorisation" are used throughout the provisions. Likewise, the second minor amendment to section 26(4) does not change the meaning but is a clarification and tidying up of the language used.

In summary, amendments Nos. 10, 12 and 14 cover the issues raised in amendments Nos. 7 and 11. I do not intend to accept amendments Nos. 6, 8, 9 and 13.