LAST week, I asked Justice Minister Alan Shatter to give the Dáil an itemised list of communication/correspondence that both he and An Garda Síochána agree are regulated by the current legislation relating to covert surveillance, and to specify if and to what extent the covert surveillance of a citizen’s email or internet usage is regulated.

The Irish Human Rights Commission, the statutory body established to advise the Government on compliance with human rights, recently reiterated its concern that the relevant legislation has “significant gaps”. Mr Shatter refused to provide that list and willfully misunderstood the request, stating that “it is not the practice for obvious security reasons to reveal details of equipment in use by An Garda Síochána”.

When a state interferes with a citizen’s right to privacy, and particularly when this is done through covert police surveillance, the European Court of Human Rights has repeatedly held that this intrusion must be balanced by the provision of adequate safeguards and remedies to the citizen, along with strong external monitoring and oversight of policy and practice.

There is also an increased onus on the state to provide the citizen with legal clarity and foreseeability with regard to the type of correspondence and communications the law relates to, and the type of situation and circumstances that might be the subject of covert surveillance.

There must also be “accessibility” to any covert surveillance rules or policies in use. However, the key principle emphasised by the Court is the requirement for judicial supervision.

Mr Shatter incorrectly stated in the Dáil that, in Ireland, surveillance can only be carried out by a Garda member in accordance with a valid authorisation provided by a district court judge. However, he did later admit the existence of Section 7 of the Criminal Justice (Surveillance) Act 2009, which allows any Garda above the rank of superintendent to internally approve another garda to undertake covert surveillance.

Although Section 7 is intended to apply only exceptionally and in urgent situations, it clearly allows gardaí to bypass the district court judge and to internally approve each other to conduct covert surveillance — there is no requirement for retrospective authorisation by a judge.

Section 8 sets out that the affixing and use of tracking devices — such as GPS on a vehicle — never requires judicial authorisation and is always internally approved by another garda. Gardaí are, quite literally (and legally), a law unto themselves in these instances.

We must not forget that what is at issue here is the prospect of several gardaí breaking into your home — by force, if necessary — to affix an audio or video recording apparatus, and watching and recording your family’s conversations and movements.

It is probable that the definitions in the 2009 Act do not extend to the more sophisticated and technologically advanced equipment now used by gardaí in such operations.

A Court of Criminal Appeal judgment in January (DPP v Idah) gives one worrying example of Garda abuse of this Section 7 power in circumstances which the court ruled were not, in fact, “urgent” and so an application could and should have been made to the district court. The evidence obtained was deemed inadmissible and the conviction quashed.

We have no idea how widespread or frequent Garda covert surveillance is. Although the 2009 Act does provide that at least one annual report must be prepared by a designated judge for parliamentary scrutiny, this report contains no figures or statistics.

The provision of such details would not reveal Garda methods nor would it threaten or identify specific operations. Mr Shatter did not confirm to the House whether the Government has yet designated a new judge to replace Mr Justice Feeney, now sadly deceased, whose last report dated to July 2012.

That report noted a “considerable increase” (“threefold”) in applications to district court judges for authorisations for Garda covert surveillance. Taoiseach Enda Kenny has not yet laid the July 2012-July 2013 report before the Dáil, as required.

A separate annual report by a different designated judge reviews the operation of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 regarding phone tapping and the interception of post, and the Communications (Retention of Data) Act 2011.

This report is even more scant on detail, consisting of a single page declaring a finding of satisfaction and compliance.

The most recent report sets out that the 2013 review was conducted in just one busy day in November when the High Court judge visited McKee Barracks, Garda headquarters in Phoenix Park, the Department of Justice, and the Revenue.

IT IS difficult to have faith in the thoroughness of this one-day annual review, given that the recent Data Protection Commissioner’s internal audit sets out that almost 2,000 requests for disclosure under the 2011 Act were made by gardaí in January 2012 alone. This lack of transparency is in stark contrast to the detailed statistics provided in similar reports by the relevant UK authorities.

The secrecy is compounded by restrictions in the 2009 Act on the usual court disclosure or discovery. The result is that it is difficult to see how a citizen or their solicitor could ever be in possession of enough factual information that might allow her to initiate a legal challenge that could test for constitutionality and human rights compliance. When in opposition, Finance Minister Michael Noonan himself referred to the act as “constitutionally suspect”.

Mr Shatter emphasised to the House the availability of a complaints referee — currently Judge Carroll Moran — that citizens can write to if they feel they have been inappropriately made the subject of covert surveillance. However, he refused to provide any data to demonstrate whether that system is working efficiently, or at all — and whether the referee has found many contraventions which must then be reported to the Taoiseach.

A further difficulty is that the only citizens likely to find out that they were the subject of covert surveillance (and thus the only citizens in a position to contact the complaints referee) are those that are criminally prosecuted, which would indicate that the covert surveillance undertaken in that instance was probably warranted.

Ordinary surveillance remains outside the three acts and is unregulated. This would include the trailing by an unmarked Garda car of Garda whistleblower John Wilson and TD Luke Flanagan last week, when they were accompanying another terrified Garda whistleblower to GSOC offices.

Garda use of ordinary cameras, binoculars, and night goggles to conduct surveillance is also excluded from the 2009 Act.

A recent judgment by the Court of Justice of the EU, striking down its parent EU directive, means that the Communications (Retention of Data) Act 2011 may now require a reconsideration. Mr Shater might surprise by taking a proactive approach and using this opportunity to review, update, and reform all three of these Acts.

I appreciate the requirement for intelligence-led policing in modern Ireland. Covert surveillance must, however, be properly regulated and produce admissible evidence. Any unifying legislation must provide legal clarity to citizens, establish a more rigorous and transparent system of external oversight, and ensure that Garda practice and law in this area is compliant with both constitutional and human rights.

Weak monitoring and oversight emboldens rogue elements, and can only result in the exploitation in practice of Garda powers that may already transgress the boundaries of what is legally acceptable. Covert surveillance powers must also be extended to GSOC so that it is on an equal investigatory footing with the organisation it is tasked to oversee.

The recent GSOC bugging and Garda tapes controversies may well have their roots in issues arising from Garda covert surveillance practices. Proactive and prompt legislative reform would go some way to preventing any recurrence of similar scandals.