The Irish Human Rights Commission (IHRC) today welcomed the placement of surveillance powers on a statutory footing through the Criminal Justice (Surveillance) Bill 2009 (2009 Bill).
However, the IHRC believes that while there are many positive aspects to the Bill further safeguards may be needed to bring the Bill fully in line with human rights standards.
The IHRC is currently reviewing the 2009 Bill in relation to the relevant human rights law, in particular in relation to the right of every person to respect for their private life, family life, home and correspondence as set out in the European Convention on Human Rights. Full observations on the 2009 Bill will be published shortly.
Following the IHRC’s preliminary examination, Dr Maurice Manning, President of the IHRC said "overall the IHRC welcomes the Criminal Justice (Surveillance) Bill 2009 as it puts in place the necessary legal framework for surveillance activities. Vital safeguards such as the requirement for judicial authorisation for surveillance in most cases have been included. We particularly welcome the improvements which have been made to the Bill from the draft Scheme of the Bill. However, to ensure that the 2009 Bill fully complies with Constitutional and international human rights law, further essential safeguards are required."
Mr Éamonn Mac Aodha, Chief Executive of the IHRC continued "The 2009 Bill will be considered by the Oireachtas this week, and there are several areas of the Bill which the IHRC has concerns about. We hope that the members of the Oireachtas will take these into account when considering the 2009 Bill. The areas of remaining concern for the IHRC include: the definition of surveillance, the use of tracking devices, supervisory powers, and complaints procedures."
Definition of Surveillance
The IHRC considers that the definition of surveillance under the 2009 Bill should be extended to include photographing people in a public place with the objective of compiling information about them or their activities and recommends that such surveillance should be subject to similar safeguards provided for other forms of surveillance under the Bill.
Use of tracking devices with authorisation of a judge
The IHRC considers that tracking devices should be included in the definition of surveillance device provided in the 2009 Bill and should be subject to the same safeguards as other forms of surveillance. Consequently, the use of tracking devices should require the authorisation of a judge. In addition, the maximum duration for which the use of a tracking device can be authorised should be reduced.
Supervisory Powers and Complaints Procedures
The IHRC welcomes the role of the designated High Court judge in overseeing the operation of this legislation. It considers that should the High Court judge detect surveillance being carried out on an individual in contravention of the legislation, a mechanism should be put in place to refer the breach to the relevant complaints body. Also, where this occurs, a further procedure should be put in place so that a person who has been the subject of unlawful surveillance is informed of this so that they can exercise any remedies available to them under the legislation.
Codes of Practice for the Operation of Surveillance Powers
In line with recent recommendations by the IHRC in its policy statement Human Rights Compliance of An Garda Síochána, a detailed and accessible human rights based code of practice in relation to the operation of surveillance powers under the 2009 Bill is an important aspect of ensuring that covert surveillance is accompanied by adequate and effective safeguards. The IHRC further considers that effective compliance measures should be incorporated into a code of practice on covert surveillance and where appropriate a breach of the code of practice should invoke disciplinary action.
ENDS/
A spokesperson is available for comment.
For further information please contact
Fidelma Joyce
Irish Human Rights Commission
Tel: 01 8589601 Mob: 087 783 4939
Notes to Editor
– Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) protects the right of everybody to respect for their private life, family life, home and correspondence. Article 8(2) of the ECHR allows the State to justify interference with these rights where such interference is in accordance with law and is necessary in a democratic society in the interests of national security, public safety, and for the prevention of disorder or crime among other grounds. For an interference to be regarded as necessary in a democratic society it should be proportionate to the legitimate aim pursued and there should be adequate and effective safeguards in place to prevent arbitrary interferences with rights.
· In its recent policy statement entitled Human Rights Compliance of An Garda Síochána, the IHRC expressed the view that when legislation governing Garda powers in key aspects of operational policing is being drafted or reviewed, consideration should be given, where appropriate, to including a provision to provide the Minister for Justice with the power to issue supplementary codes of practice to accompany the statutory Garda powers. Their purpose would be to govern the exercise of Garda powers, in this case surveillance powers. The codes of practice would comprehensively set out Garda policy and procedures, informing Garda decisions and regulating Garda powers in a transparent and human rights compliant manner. Such codes of practice should be underpinned by the relevant human rights standards. The IHRC considers that legislation providing the Minister for Justice with the power to issue codes of practice should require the Minister to engage in an appropriate consultation process prior to issuing the codes of practice.