Dáil Éireann Private Members’ Motion calling for independent inquiry into reports of unlawful surveillance of Garda Síochána Ombudsman Commission Speech by Alan Shatter TD, Minister for Justice, Equality and Defence

A Cheann Comhairle

Last Tuesday speaking in this House, I stated that the Garda Síochána and the Garda Síochána Ombudsman Commission are vital pillars in our democratic policing structures. The work of the Garda Síochána in fighting crime, combating terrorism, and protecting the public is of critical importance. Equally, the role of GSOC in independently investigating complaints or concerns relating to the Garda Síochána is central to the maintenance of continued high levels of public confidence in the Force. My fundamental role, as Minister for Justice, is to protect the security of this State, the institutions of this State and their integrity. My first and only concern, on learning of allegations of surveillance was to establish whether GSOC, a critical oversight institution, had been subjected to surveillance.

Prior to the establishment of GSOC, it was my view that we needed to establish such a body by way of legislation and some may recall that, following on allegations of Garda misconduct in Donegal, I was one amongst other Members of this House who called for a public enquiry and on the 20th of November 2001 proposed an extensive motion in this House for the holding of such an enquiry. Some months later the Morris Tribunal was established. When issues of difficulty arose in Abbeylara, not only was I a member of the Justice Committee which commenced hearings into Abbeylara, but I took so seriously the need for, not just independent oversight, but accountability to Parliament that I personally attended both the High Court and the Supreme Court to make submissions in favour of the Justice Committee being permitted to continue its enquiry into Abbeylara. So there is no one more committed than me to ensuring that we maintain the independence and functional integrity of GSOC and that there is full public confidence in the Commission.

I have, in recent days, listened to allegations made that I am seeking to undermine the role of GSOC or that I may want to abolish it altogether. The Chairman of GSOC, Mr Simon O’Brien, in his presentation to the Joint Oireachtas Petitions Committee, on Wednesday last, stated on more than one occasion his full trust in me as Minister. Kieran Fitzgerald, a member of the Commission, in an interview on PrimeTime on Tuesday night following my statement to the Dail, when questioned on my statement that evening to the Dail stated “we’ve no disagreement at all with the Minister”. Later on in the interview, when asked why the Commission did not report to me on the investigation undertaken by them, when it was suggested to Kieran Fitzgerald that GSOC “didn’t trust” me, he stated “we have full faith in the Minister”.

My concern to ensure a proper working relationship between An Garda Síochána and GSOC, and the resolution of well publicised difficulties last spring between the two organisations, resulted in meetings with both the Garda Commissioner and the Chairman of GSOC and, ultimately, the conclusion of a new protocol between both bodies, the objective of which was to ensure that GSOC could fully and properly carry out its statutory duties with the fullest necessary Garda cooperation. Just over two weeks ago, prior to the commencement of this controversy, I announced my intention to bring before Government proposals to amend the Garda Síochána Act of 2005 to address aspects of the legislation that required change and which have been the subject of both reports and public comment. I also took the steps necessary to ensure that, in the context of GSOC’s investigation into the Fixed Ticket Charge controversy, it had direct access to the Pulse system, and stated it will also have such access in other future investigations.

Today, it was agreed at Cabinet that the input of the Joint Oireachtas Justice Committee would be sought on the amendments to be made to the 2005 Act with regard to GSOC, in advance of my finalising the proposals to be brought by me to Cabinet. Hardly the actions of someone seeking to undermine the work of GSOC.

Last Tuesday in this House, I detailed the background to the investigation GSOC initiated and the outcome of that investigation. I summarised for the House the information furnished to me by GSOCs Chairman, Mr Simon O’Brien at our two hour meeting and that contained in the briefing note I received from GSOC and its public press release. I addressed the central issues of the “anomalies” or “potential threats” or “vulnerabilities” identified. Two of these, relating to a wifi system and a conference call telephone, resulted in GSOC initiating an investigation on the 7th October 2013. Following the instigation of that investigation, a third potential threat or vulnerability was identified in respect of a device that can access phone conversations and material from a UK telephone connected to a UK 3G network. I detailed to the House the conclusion reached by GSOC following on from that investigation and work undertaken by Verrimus, the security consultants who had undertaken the original security sweep in Sept 2013 and who had assisted GSOC in the investigation that took place. I recounted specifically, from both the Chairman’s meeting with me and the formal brief I received, the conclusion that there was no definitive evidence of any technical or electronic surveillance of GSOC offices. I also recounted that there was no connection between any member of An Garda Síochána with any of these matters. Despite the fact that what I said with regard to the surveillance replicated exactly the conclusion contained in the brief received by me from GSOC, I have been subject to continuing political attack alleging that I have undermined the role of GSOC and been covering up Garda misconduct.

Unfortunately, both inside and outside this House, GSOCs own conclusions and decision to conclude their investigation have been disregarded. In this context, It is worth noting what Commissioner Fitzgerald told PrimeTime.

Miriam O’Callaghan asked the following question with reference to GSOCs Press Release of Monday 10th February;
“in your statement last night you said there was no evidence of Garda misconduct, why would you say that in the first place if you weren’t thinking that?”

Kieran Fitzgerald replied
“because the reason we said that last night and that I’m happy to repeat it here now, is that its part of the public discussion, in Dail Eireann this evening, and all over the airwaves for the last couple of days, people are pointing fingers and may I say it is unfair of people to point fingers at An Garda Siochana on the basis of anything we have said or done”.

Miriam O’Callaghan continued “but your statement last night did that”

Kieran Fitzgerald replied
“No, our statement last night was meant to try to clear that up and say we did not find evidence of Garda misconduct because the public discourse seems to be pointing in the direction of finding the Guards guilty of this thing when we are saying quite clearly and categorically and in no uncertain terms, we found no evidence to point to that direction and for people to suggest that, you know, they were up to something, we’re the people who did the examination, we’re the people with the evidence, we do not have any evidence to point in that direction.”

It is unfortunate that, despite that clear statement by Kieran Fitzgerald on Primetime, that we have had a week of continuous fingerpointing at An Garda Síochána, and calls for enquiries by people who have not only assumed that GSOC was under surveillance or was bugged, but that the Gardai were the culprits.

While I don’t doubt the general legitimacy of concerns that have been expressed at reports of potential threats of surveillance of GSOC, I think it is a pity that we could not have had a more balanced debate on these matters.

An inference has been drawn by some that one of the three potential threats identified by GSOC – the use of a bogus UK network – could only involve technology available to Government agencies. The repetition of this inference has been fuelled by the Verrimus Report and has caused real concern for many. Information on the technology needed to create a bogus network – usually referred to as an IMSI catcher – is widely available on the internet. It is also the case that such devices have a range of up to several kilometres, so that even if there had been such a device it could have been anywhere in central Dublin and there is no indication whatever that it was directed at GSOC, whose staff do not in any event use UK-registered mobile phones. I referenced this fact in my speech last week based on the briefing I received from the Chairman of GSOC. It is also worth noting that the Chairman, in his presentation to the Joint Oireachtas Committee, clearly did not accept that the technology referred to could only be obtained by government agencies, despite the statement to this effect in their security consultants report. I did not reference it in my speech to the Dáil last week as the Chairman clearly placed no reliance on that advice. and this is clear from his own comments to the Joint Petitions Committee.

This political opportunism has extended to manifestly false claims that I misled this House, or withheld relevant information from it. I must say again that everything I told this House in statements on Tuesday of last week was based wholly, exclusively and accurately on the oral and written briefing given to me by the Chairperson of GSOC, and the press statement issued by GSOC.

Some Members opposite claimed to see significance in the fact that I did not specify that the investigation launched by GSOC was under section 102 of the Garda Síochána Act 2005. But I made clear to the House that GSOC had launched an investigation, and the fact of the matter is that section 102 is the only section under which GSOC could have launched such investigation. As anyone with even a passing familiarity with the 2005 Act will confirm, no other section could have been used by GSOC to initiate an investigation on its own initiative, so it is of no relevance that I did not expressly reference section 102 in my Dáil statement, just as GSOC did not reference it in their press release either. There were other sections of the legislation relevant to the investigation undertaken by GSOC to which no reference was made and to which GSOC itself made no reference in its press release. These include section 98 and section 103. It was not a night for delivering a legal treatise. It was an opportunity to explain to the House in as non technical language as possible the events that had occurred as recorded to me. I assumed those speaking in the House and, in particular, the opposition Justice Spokespeople were familiar with the Act and I certainly never expected that my statement would be distorted to a false allegation being made that I had, in some way, misled the House for some perceived political advantage, by my political opponents.

All sorts of motives have been attributed to me for not expressly mentioning section 102 of the Act which have no credibility in the context of my knowledge that members of GSOC were the next day to come before the Petitions Committee and of the likelihood that, at an extended questioning session in the Committee, there was a reasonable likelihood that specific aspects of the legislation applying to GSOC would give rise to questions. It has been suggested that I wanted to conceal the fact that GSOC commenced an investigation into members of An Garda Síochána. Those who make this charge choose to ignore the fact that GSOCs investigative remit is confined to investigating matters relating to An Garda Síochána. GSOC has no statutory entitlement to investigate any other individual or body other than a member or members of An Garda Síochána.

The issue of whether GSOC should have advised me of the investigation which they carried out under section 102 of the Garda Síochána Act 2005 has also resulted in spurious claims that either myself or the Taoiseach or other Government Ministers were attempting to divert attention away from the substantive issue of whether or not GSOC was under surveillance

Much was made of what was seen as the discretionary nature of the provision in section 80 (5) of the 2005 Act, under which GSOC may – and great emphasis was put on the word “may” – make any report that it considers appropriate for drawing to the Minister’s attention matters that have come to its notice and that, in its opinion, should because of their gravity or other exceptional circumstances, be the subject of a special report to the Minister.

First of all, it was never a question of diverting attention away from the substantive issue of whether or not GSOC was under surveillance. There is no binary choice between one and the other. Indeed, it is precisely because the substantive issue is of such importance – a point I have repeatedly emphasised – that the question of reporting this to me was such an important matter. It was not appropriate that I first learn of it in a Sunday paper in a report derived from a leak from GSOC that remains under investigation.

It is true that section 80(5) of the 2005 Act provides that GSOC may make a report to me in the circumstances I have described, but this is better described as an enabling provision rather than a purely discretionary one. In other words, it should be used in circumstances contemplated by the provision. In that context, I don’t think that any reasonable person would regard concerns of the nature we are discussing as anything other than grave or exceptional. I am not sure how anyone could sensibly argue the opposite in circumstances where this issue has dominated the TV and radio news for days on end, has been the subject of countless newspaper headlines and articles, was the subject of statements in this House last week, is the subject of a motion in the House this evening, and is being examined as a matter of urgency by a Joint Committee of both Houses.

Even apart from this, however, there is the separate obligation in section 103 of the 2005 Act. Section 103 provides that GSOC, where it launches a section 102 investigation, shall inform the Minister of the progress and results of the investigation. An exception to this strict requirement is allowed in only three circumstances, namely where supplying the information would prejudice a criminal investigation or prosecution; would jeopardise a person’s safety; or for any other reason would not be in the public interest. The first two exceptions are irrelevant. As regards the third, I find it impossible to see how it would not be in the public interest for the Minister to be advised of an investigation in these circumstances. In any event, and to be fair, GSOC have not argued that I was not informed for any of these reasons, and have expressed genuine regret at the decision not to keep me informed.

I make these points to illustrate how some Members opposite have sought every opportunity to generate controversy and manufacture concern in the hope of scoring political points, without regard for the consequences for GSOC, the Garda Síochána or public confidence in these institutions.

Since I addressed this House last week on these matters, the following events have taken place:

· Members of GSOC participated in a four hour hearing before the Joint Oireachtas Petitions Committee

· I received from GSOC three reports of Verrimus Limited, the first relating to the original security sweep and the second and third relating to further work undertaken by them subsequent to the commencement of GSOC’s investigation of 7th October 2013.

· I received from GSOC a report pursuant to section 103 of the Garda Síochána Act 2005

· I have engaged in correspondence with GSOC seeking to further clarify matters of relevance

· I have received a peer review report on the technical matters of relevance from RITS, an IT security consultancy firm to seek clarification of the technical information contained in the Verrimus report and an opinion with regard to the risks as identified and presented to GSOC.

· My officials have also obtained clarification from GSOC in respect of some matters.

I have considered in detail all of the documents and the information furnished to me and I have also carefully read through the transcript of the 4 hour hearing before the Joint Oireachtas Petitions Committee. I have received from GSOC information additional to that furnished to me on Tuesday last, prior to my statement to the House, and some information additional to that given to the Joint Oireachtas Committee during the course of the hearings. Included within that information are further details concerning the unused wifi in GOSC offices that was remotely accessed. It seems that Verrimus identified in Sept 2013 that it was being remotely accessed but could not identify from where. The unexplained accessing of the wifi is, of course, an indicator of a potential threat or vulnerability but, as it was confirmed to me that the wifi at no stage accessed any information whatsoever contained in GSOCs office, there was, of course, no real breach of GSOCs security. Whilst it seems Verrimus was unable to explain why the wifi was so accessed, the section 103 report explains that the wifi showed a connection to the Bittbuzz network and that the wifi system was found to be connecting to another wifi system “located in a business premises close to the Ombudsman Commissions offices”. It also states that “the Bittbuzz equipment had been installed in that business premises in approximately August 2013” and that the device using wifi in that business premises had only connected to Bitbuzz in approximately August 2013. It seems that some check was undertaken through Bitbuzz which confirmed that no confidential information was accessed and the section 103 report records that no further enquiries were made. It was concluded that it was likely that the wifi within GSOC was randomly linking into Bittbuzz “due to some unknown technical anomaly rather than some unauthorised technical or electronic surveillance”.

In reply to an enquiry from one of my officials in the Department of Justice, GSOC advised this morning that the “business premises” referenced is an Insomnia Coffee Shop within a Spar outlet on the ground floor of the building occupied by GSOC. It advertises wifi availability for customers and connectivity to Bittbuzz. I am unaware of any credible information that surveillance is being conducted on GSOCs offices by any of the customers of Insomnia. It is, of course, a matter of concern to me that this full information was not supplied to me prior to the Dáil Debate on Tuesday last nor given to the Joint Committee. Before this comment is used to accuse me again of trying to undermine GSOC, I want to reiterate that it is my only objective to ensure that the truth is known about all of these matters.

The report mentioned earlier that I received from RITS gives as an opinion, based on the reports provided to RITS, that “there is no evidence of any technical or electronic surveillance against GSOC”, that is no evidence at all, not merely no definitive evidence. This report also disputes other conclusions reached by Verrimus.

I appreciate that GSOC relied on the reports it received from the security company it contracted. I cannot ignore the report I received from the company asked to conduct a peer review of the technical documentation furnished by GSOC to me and the information accompanying it. Having regard to the differences that have arisen, the additional information I have received since I made my first statement to the Dáil, the ongoing nature of this controversy, its debilitating impact on the capacity of GSOC to get on with its work and the continuing overhang of suspicion voiced by some, despite the conclusions of GSOC, that the Gardai or a member of the Gardai, was engaged in misconduct, I concluded that it was important to do what is possible and reasonable to bring an end to ongoing controversy.

I briefed Cabinet this morning on developments that have occurred in relation to this matter following on from the hearing last week of the Joint Committee on Public Service, Oversight and Petitions. I gave the Cabinet my assessment of the potential damage to both GSOC and the Garda Síochána, and more widely to public confidence in the enforcement of law, from the character of the current debate on surveillance concerns. It was clear to me that it was necessary to provide a structure for all issues of controversy to be addressed with calm and reason. In the light of that, I and my Cabinet colleagues agreed to the appointment of a retired High Court Judge to inquire into all matters of relevance to the controversy that has arisen.

Up to Friday, it was my view that GSOC had enquired into these matters and reached a conclusion and that calls for an enquiry could be seen as undermining public credibility of GSOC and a rejection of the conclusions it reached in the investigation it undertook. No such enquiry calls have in the past been made when GSOC has concluded, following an investigation, that there have been instances of Garda misconduct. It seemed to me highly inappropriate to hold an enquiry in circumstances where GOSC has concluded that there was no evidence of Garda misconduct. However, the manner in which this controversy has continued and the new information I have received and the need to bring absolute clarity, insofar as that is possible, to all of these matters lead me to the view that it is in the public interest that a retired high court judge undertake the task agreed by Cabinet. It is of the utmost importance that the full truth is established beyond dispute.

I hope that all sides in the House will welcome this, and will now give the Judge to be appointed the time and space necessary to conduct this inquiry and report on his or her conclusions. I am reliant on the advices of the Attorney General as to the terms of the enquiry and expect that they will shortly be finalised. I hope too that GSOC will now be enabled to proceed with its work unhindered by controversy. As already stated earlier today I will of course attend before the petitions committee tomorrow to address any issues of relevance.