Is it too much to hope for law on snooping to be changed before election is called?
Published 19/01/2016 | 02:30
This morning, Justice Minister Frances Fitzgerald will bring a report to Cabinet on the accessing of journalists' telephone records by GSOC.
Speaking in Kildare yesterday, Taoiseach Enda Kenny seemed to grasp the gravity of the situation when he acknowledged that it would be appropriate to amend legislation to ensure that the power to access phone records is used sparingly and only in cases involving national security.
The catalyst for the current debate was the decision by GSOC to use relatively new powers under the Communications (Retention of Data) Act 2011 to access the personal phone records of two journalists as part of its investigation into alleged leaks by members of An Garda Síochána . The alleged leaks related to the high-profile, tragic death of Katy French in 2007.
While there has been criticism of the GSOC investigation, the priority now must be to ensure the powers given to the commission are reviewed.
There is no evidence so far that GSOC acted outside the law - merely that GSOC used powers which it should never have been given to investigate a complaint which, however legitimate it may have been, could never be classed as being so significant that a fundamental freedom enjoyed by the press should be undermined.
The Supreme Court has recognised the right of journalists to protect confidential sources of information. That right is recognised in international law.
Yesterday, in Kildare, the Taoiseach was unambiguous. "Clearly, the fundamental principle of journalistic sources being confidential is very important in a democracy," he said.
"Minister Fitzgerald is looking at this on the basis of the protection of the sources of information for journalists in a free world, in a free press," he added.
Last week, there was cross-party support for the right of journalists to protect confidential sources of information - so it's safe to assume Mr Kenny's comments would not be contested by his political opponents.
In these circumstances, would it be too much to hope the party whips would get together and enable the Houses of the Oireachtas to consider amending legislation before the election is called?
A starting point would be to reverse the changes which granted the powers to GSOC but, as Dr T J McIntyre of Digital Rights Ireland pointed out in this newspaper last week, we do need a wider look at the way the State treats data belonging to all citizens, not just journalists.
The fact that there is currently no requirement that a judge grant a warrant before phone records are examined by gardaí or GSOC is a function of inadequate legislation.
Any legislative reform must be based on the principle that access is only permitted following independent, judicial assessment and is demonstrably necessary. There must be a public interest test.
The Katy French complaint has understandably led to a focus on journalists - but this is not just about the rights of the media.
Sensitive communications, such as those between lawyer and client or TD and whistle-blower, are equally vulnerable.
Currently, the Act allows for an appeals procedure, in the case of individuals, and a judicial review of how legislation is being used. However, the appeal is of limited value, occurring after a journalist has discovered his or her confidentiality has been breached.
Many citizens are disturbed by the discovery that phone records can be scrutinised by GSOC. It is correct that citizens have a right to make complaints against An Garda Síochána and it is correct that gardaí have a right to defend themselves. It is also the right of the media to operate with freedom. I do not imagine for a moment that the Communications (Retention of Data) Act 2011 will become a dominant issue in the forthcoming election.
However, a prompt legislative response supported by all parties might restore belief in the ability of the political system to recognise a problem and address it in a timely manner.