Ivana Bacik (Independent)

I support this amendment, which is a corollary to my amendment. Section 8 appears to provide for a bypass to judicial procedure. Reading the Bill carefully, it is clear in section 1 that tracking devices are a type of surveillance type with a more limited function, because they are only used for the purpose of providing information regarding location. Location and movement are measured by tracking devices, whereas surveillance devices more broadly cover the content of conversations and of monitoring activity.

Tracking devices are a type of surveillance device, therefore, a garda, Revenue or Army officer who wishes to mount a tracking device in somebody's home or another place can do so by applying to a judge under section 4(5) for authorisation. I would be grateful for the Minister of State's clarification on whether an application for authorisation covers tracking and surveillance devices.

The primary procedure under this Bill, if one reads section 3, 4 and 5, is that somebody who wants to plant a surveillance or tracking device must go to a judge. Section 7 states in circumstances of urgency where a person wants to plant a surveillance device but does not have time to go to a judge, he or she can go to his or her superior officer. Section 8 provides a rather extraordinary bypass mechanism, where one bypasses the judicial authorisation procedure provided for in sections 4 and 5 where one wants a more limited tracking device to be placed, rather than the broader definition of surveillance device.

Why include tracking devices within the ambit of surveillance devices if one can go straight to a superior officer? There is no requirement that there be circumstances of urgency. I suggested an amendment where one could operate section 8 where there were circumstances of urgency. Senator Regan's approach, which was recommended by the Irish Human Rights Commission, states that section 8 should instead be the mechanism for seeking judicial authorisation of tracking devices only.

Either approach would be better than the current one, which envisages that one can go to a superior officer who it appears, although there may be constitutional problems, could be somebody involved in the investigation, to get permission for a tracking device for up to four months. One can enter somebody's home to plant a tracking device under section 8(5) and re-enter it to take it away. All of that can be done without judicial authorisation, even where there are no urgent circumstances.

This could potentially breach the convention and I am grateful to the Irish Human Rights Commission for providing a very considered set of observations on the Bill. It was very exercised by section 8, which it suggested provides for a separate mechanism for tracking devices. Paragraph 20 of its report states section 8 of the Bill provides for a separate system of authorisation for tracking devices and that this type of surveillance should be subject to the same types of safeguards provided for in the other types of surveillance envisaged under the 2009 Bill and that, in particular, there should be judicial supervision of the use of such devices.

On my reading, there can be such supervision under sections 4 and 5, because one can go to a judge where one merely wants to plant a tracking device as it is included as a type of surveillance device. However, there is an automatic bypass, without the need for circumstances of urgency, in section 8. I am concerned the provision might be too broad, particularly having regard to the case of Klass v. Germany to which Senator Regan referred and which is also dealt with by the Irish Human Rights Commission.

It recommend that there should be a requirement that a judge should authorise the operation of tracking devices so that the same safeguards are applied to the use of all types of surveillance devices, including tracking devices. The Minister of State could make that change or take my proposal in amendment No. 9, that is, to limit section 8 to the circumstance of emergency as apply in section 7. Either mechanism would allow superior officers to authorise tracking, but would also allow for safeguards to be in place to the same degree as are in place for the planting of surveillance devices more broadly defined.

There is a lack of clarity about the definitions. It is not clear, as Senator Regan and I have discussed, whether section 8 is envisaged to be the sole procedure for planting tracking devices or sections 4 and 5 should be read as applying to it. Sections 4 and 5 do apply to tracking devices - that has to be the clear reading. However, any officer who is involved in an investigation and is aware of these procedures will be aware he or she can simply go straight to his or her superior officer without going to a judge, if all he or she wants to plant is a tracking device.

In practice, the judicial authorisation route will be bypassed because section 8 exists in its present form, and because there is great potential for abuse it is important that section 8 be amended, by Senator Regan's amendment or by mine. Either would address the concerns offered by the Irish Human Rights Commission. It has, as we have, offered a broad welcome for the Bill. We are offering these amendments in a spirit of seeking to be constructive, to strengthen the Bill, to ensure it is less open to challenge than in its current form and to ensure there is less potential for abuse.

As a colourful example of a recent high-profile bugging exercise, I read that the indiscretions of Italian Premier Silvio Berlusconi have come to light because of covert surveillance devices planted in the home of his hosts at a party he attended. As a by-product of the bugging, which was to investigate a completely different set of dealings between different businessmen, various conversations Mr. Berlusconi had with women came to light and entered the public domain. The case highlights the fallout that can occur from covert surveillance and the great deal of care that needs to be taken when we are authorising it.

I do not say this by way of opposition to the Bill because I accept, as I have already done, that it is welcome and sets an important statutory framework. However, we need to ensure it is a strong and watertight statutory framework. I am not sure section 8 is sufficiently watertight in its current form. I would be grateful to hear the Minister of State's considered view on this point.