Eugene Regan (Fine Gael)

The purpose of the Bill is to allow material gained by covert surveillance to be used in evidence in court. Gardaí have conducted covert surveillance for many years but this Bill provides for the information so gathered to be presented as evidence in court. It is aimed at organised crime but it is also relevant to white collar crime.

The Bill provides for the carrying out of surveillance on foot of an authorisation of the District Court for a period of up to three months and which can be renewed in urgent situations by authorisation from a senior officer for a period no longer than 72 hours. It provides for the creation of written records, the admissibility as evidence of information obtained and a mechanism for dealing with complaints and separate judicial oversight of the operations of the Bill by a High Court judge, which I will refer to later.

The Bill encompasses three main enforcement agencies: the Garda Síochána, the Defence Forces and the Revenue Commissioners. Considering the range and interlinking of the activities of criminals, including drug smuggling, customs and excise fraud, VAT fraud and money laundering, it is appropriate that all those bodies are included within the ambit of the legislation.

Fine Gael welcomes the publication of the Bill and urges its immediate implementation. We have called for it for some time on the basis that we will support any measure which makes inroads into tackling gangland crime. Given the conviction rate of 12% of 171 shootings which have taken place in the past 11 years, our evidence gathering measures clearly need to be improved in tackling this form of serious crime.

Covert surveillance legislation is essential but there is no guarantee it will have a major impact unless the necessary resources are put in place and an investment made in training, the provision of the best equipment and ensuring all procedures and structures are in place to implement it effectively. It will also be necessary to resource the national surveillance unit which will run the new bugging and tapping operations. The Garda Commissioner says a new unit does not need to be created, but additional resources will be required to handle the increased workload, comply with written records procedures and so forth.

There are two other fundamental issues that complement this operation. When there are cutbacks in budgets they tend to be across the board. This can be very damaging in the case of some fundamental services provided by the State. One of those is the Office of the Director of Public Prosecutions. The Director of Public Prosecutions has indicated he will be unable to carry out his duties with the budget cuts this year. That cuts across the entire policy of the Oireachtas on tackling and combating the most serious forms of crime. One of the other essential elements in the armoury the State requires to deal with this problem is the establishment of a DNA database. This is long overdue. All EU member states are required to maintain a DNA database and to participate in sharing information. The Minister for Justice, Equality and Law Reform promised legislation to deal with a DNA database last year but it has not been produced.

These are the essential prerequisites for the Garda and the Director of Public Prosecutions to ensure both the detection and prosecution of crime. This Bill can play a part but we should not exaggerate what it can achieve without the resources I mentioned. The most notable case where this type of technology and surveillance have succeeded was the case of the mafia boss, John Gotti. Such cases are rather dramatic and one hopes the resources will be in place, the necessary training will be provided and the sophistication of the gardaí involved in these operations will succeed in having similar success in the case of the some of the most notable gangland criminals in this country.

I do not wish to be negative as we welcome this Bill but the Law Reform Commission produced a report, Privacy: Surveillance and the Interception of Communications, in 1998 which dealt with the introduction of legislation such as this. It is extraordinary that it has taken so many years for the Government to act. The problems did not arise yesterday; there has been a serious escalation in gangland crime for some years, yet in 2007 the Government informed the Houses that no such legislation was in place. The Minister said:

Up until now, the Garda has been reluctant to use evidence obtained by covert surveillance in court, mainly for legal and operational reasons. That policy has now changed. In the opinion of the Garda Commissioner, the changing nature of crime, in particular, the growth of organised and gangland crime, requires a buttressing of the security response. In addition, the threats to society and to the integrity and effectiveness of the criminal justice system itself posed by these gangs, notably the attacks on ordinary people going about their daily lives, requires correspondingly robust legal measures.

It is extraordinary that the Garda Commissioner dictates when we pass legislation. It is up to the Minister for Justice, Equality and Law Reform to take the initiative in these areas and it is a matter for the Oireachtas to make these decisions. This undue deference to the Garda Commissioner in terms of dictating the pace at which we introduce legislation is inappropriate.

The right to privacy is a fundamental right under our Constitution and the European Convention on Human Rights, to which we subscribe. It is legitimate to interfere with that right for the general good if the interference is necessary, proportionate and carried out in accordance with law. Given the extent of criminal activity and gangland crime, and the fear and intimidation which local communities endure, the interference envisaged in the Bill is clearly legitimate. The setting down in law of the conditions under which this interference with the right to privacy by way of surveillance takes place means it takes place in accordance with law. This is why the Irish Council for Civil Liberties has welcomed the Bill. The council says it will place Garda surveillance on a lawful basis that broadly conforms to Article 8 of the European Convention on Human Rights. The council is also correct in its statement that intelligence-led policing, and not the restriction of fair trial rights, is the most effective way to tackle gangland crime. Intelligence gathering and the securing of evidence are essential ingredients in the detection and effective prosecution of crime.

With regard to the specific provisions in the Bill, which we will discuss in detail on Committee Stage, we should expressly include gangland crime among the objectives set out in the Bill. There is an issue with legal professional privilege and how we define the interference with the right to private property. However, two particular issues should be noted with regard to judicial supervision. We have the referee system but, in section 12, there is provision for the engagement of a sitting High Court judge to oversee the operation of this legislation. This provision is in the precursor to this Bill, the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. I have some concern about the provision in the Bill. The provision is welcomed by many bodies who see it as providing oversight and a necessary safeguard. It provides that a designated judge shall keep under review the operation of the legislation and report to the Taoiseach from time to time, and at least once every 12 months, concerning any matters relating to the operation of the sections that the designated judge considers should be reported.

I appreciate that this provision is in the 1993 Act but has the Attorney General's view been obtained on it? It seems to involve the Judiciary unduly in the executive legislative function. Requiring a sitting High Court judge to report to the Taoiseach on the operation and implementation of specific legislation appears to cut across the basic principles of the separation of powers. I await the Minister's response on this issue. In addition, where is a sitting judge to get the time and resources required? Will he or she have staff to carry out investigations of any maladministration or flaws in the legislation? I question the constitutionality of the provision, even if it is already in other legislation.

The other issue I wish to raise is the role of the Garda Síochána Ombudsman Commission. On the point I mentioned about supervision, the Garda Síochána Ombudsman Commission would be the appropriate body to carry out that review. The commission is not given a role in the legislation, nor is it available to the commission to use the provisions of the legislation to carry out its own investigations of issues concerning the Garda Síochána. That is a flaw in the Bill.

I welcome the fact that there is a remarkable similarity between this Bill and some of the provisions in the Bill I introduced in this House, the Criminal Law (Admissibility of Evidence) Bill 2008. Therefore, I cannot but support it.