Alan Kelly (Tipperary, Labour)
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494. To ask the Tánaiste and Minister for Justice and Equality if phone calls of this Deputy or other telecommunications have ever been intercepted by An Garda Síochána. [54395/17]

Alan Kelly (Tipperary, Labour)
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529. To ask the Tánaiste and Minister for Justice and Equality if this Deputy's phones or communications records or data in any format have been requested from licensed providers or service providers to this Deputy by An Garda Síochána over the past five years. [54704/17]

Charles Flanagan (Laois, Fine Gael)
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I propose to take Questions Nos. 494 and 529 together.

The Deputy will be aware that the interception of post and telecommunications is governed by the provisions of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.

The 1993 Act permits the Minister for Justice and Equality to authorise the Commissioner of An Garda Síochána, the Chief of Staff of the Defence Forces or the Chairperson of the Garda Síochána Ombudsman Commission to intercept communications but only for the purposes of investigating serious crime or safeguarding the security of the State, as provided for in the Act, and only subject to a number of strict conditions that are also set out in the Act.

The arrangements governing the retention of and access to telecommunications data for law enforcement purposes is provided for in the Communications (Retention of Data) Act 2011.

Under the 2011 Act, access to retained telecommunications data is available only to An Garda Síochána, the Revenue Commissioners, the Permanent Defence Forces, the Garda Síochána Ombudsman Commission and the Competition and Consumer Protection Commission only for the purposes of investigating serious crime or safeguarding the security of the State as provided for in the Act, and only subject to the strict conditions set out in the Act.

As the House will be aware, the Minister for Justice and Equality has no role in the process of seeking access to retained telecommunications data.

The operation of both these Acts is overseen independently by a serving Judge of the High Court who is designated by the Government for this purpose. The Designated Judge reports to the Taoiseach. In carrying out her functions the Designated Judge has, by law, full access to all persons and records she considers relevant and all relevant persons have, by law, a duty to co-operate with her.

In addition, a serving judge of the Circuit Court acts as the Complaints Referee. He is empowered to receive and investigate complaints from persons who believe that their communications have been intercepted or their communications data accessed. In carrying out his functions, the Designated Judge has, by law, full access to all persons and records he considers relevant to his investigations and all relevant persons have, by law, a duty to co-operate with him.

The Deputy will be aware that section 12 of the 1993 Act restricts disclosure in respect of interception authorisations and it places a requirement on the Minister for Justice and Equality to ensure that such arrangements are in place to limit to the minimum necessary for the purpose of the prevention or detection of serious offences or in the interests of the security of the State the disclosure of the fact that an authorisation has been given, and the contents of any communication which has been intercepted pursuant to an authorisation. Therefore it is not the practice and it would be contrary to the public interest to disclose detail of any authorisations to intercept. 

The Deputy will appreciate that in this regard I am maintaining the long-standing practice of my predecessors. Nonetheless, I can assure him and the House, just as I did in response to his previous questions on this matter on 11 July 2017, that I have never exercised the legal powers available to me to interfere in any way with the work of Members of the Oireachtas.

The Deputy will recall that when he raised concerns in the media last December that the powers in law for interception and access to retained data may have been used in respect of him or other Members of the Oireachtas, and that senior members of An Garda Síochána were abusing these powers, I immediately arranged for his concerns to be brought to the attention of the Designated Judge and I understand that, in accordance with her powers in law, she will investigate his concerns independently.

The Deputy will recall also that I wrote directly to him on 14 December 2017 setting out the position in respect of the concerns he had raised publicly that day, including inviting him to make a complaint to the Complaints Referee.

Deputies will be aware that on 3 October 2017 I published the draft scheme for a Communications (Retention of Data) Bill to replace the 2011 Act in order to take account of important decisions of the Court of Justice of the European Union in this area of law. Work on drafting that new Bill is ongoing. In addition, my Department is also advancing work on detailed proposals to update the current law with regard to the lawful interception of communications.