Before we commence, I remind Senators that they may only speak once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage, each non-Government amendment must be seconded. The Minister is most welcome back to Seanad Éireann.

I move amendment No. 1:

In page 9, to delete lines 25 to 30.

I second the amendment.

I express my deep regret that a guillotine has been proposed for this legislation. The number of amendments tabled for consideration could be dealt with quite comfortably within the time period allocated to it. It may be that the proposed guillotine will be academic. We have to strongly protest that the Government has become addicted to using the guillotine even today when it not necessary. There is no call for it, nor is there any suggestion that this is being unnecessarily delayed or the like.

The amendment relates proposes to delete lines 25 to 30 on page 9. It was tabled on the basis that the Minister indicated on Committee Stage that he understood concerns that I raised about the general aspect of the existing section 8, as drafted. I wish for the record of this House to show what those concerns are. Section 8 provides:

A member who has reasonable grounds to suspect that a person—

(a) has committed, or is committing, an offence, or

(b) is in possession of a relevant article,

may require the person to provide his or her name, address and date of birth to the member.

It is not in any sense limited to a public place. It is not limited to circumstances in which a search has been undertaken. It is not limited as to what kind of offence that we are concerned with. The Bill is concerned with quite a broad spectrum of serious offences but here we are empowering any member of An Garda Síochána who comes into contact with any person anywhere in the State whom he or she has reason to suspect has committed any offence at any time in the past and saying that he or she can demand that person's name, address and date of birth. The Minister seemed to share my view that was an unnecessarily broad power to confer on any member of An Garda Síochána. It means that virtually anybody who has committed an offence in the past can have his or her name, date of birth and address demanded by any member of An Garda Síochána. For instance,if a garda suspects a person who has in the past committed an offence and has been convicted of it is abroad, on the streets or wherever else, this section is so lazily drafted that it gives a garda the right to stop that person and ask him or her, not merely his or her name, but also his or her current address and date of birth. It is an offence not to give it to the garda in those circumstances.

The reason that I proposed its deletion was that in its present form, it is unacceptable. I had hoped that the Minister would allow sufficient time between Committee Stage and Report Stage to address the unnecessarily wide scope of that particular provision. However, for some reason, this is very urgent. We, therefore, find ourselves in the position that the Minister has tendered no amendments on Report Stage. He has not reflected anything that happened on Committee Stage, which was guillotined. We now find ourselves in the position that we are being asked to say as a House that section 8, in its present state, is acceptable. It is not acceptable. The Minister may think that he might go to Dáil Éireann having had more time to consider the matter and amend it there, but that will involve coming back here with the amended section. The proper procedure is that the Department should have allowed itself a good week or two to consider whether it wants to tighten up the incredibly lax aspects of this section and to do something about it.

While I am on the subject of these Garda powers, last Sunday, the deputy Garda commissioner, Paul Cleary, was the subject of a story in The Sunday Times saying that An Garda Síochána is to launch a dedicated security service to counter the activities of hostile states, domestic and international terrorism and extremism in all its forms. The agency will be called An Garda Síochána security service. The deputy commissioner is quoted as describing its establishment as "significant in the force's history but necessary given the unfolding security landscape across Europe". It is the case that under section 7 of the Garda Síochána Act 2005 that protecting the security of the State is already a function of An Garda Síochána.

I was a bit mystified as to why the establishment of a security service as a separate branch of An Garda Síochána should be announced by the deputy commissioner in circumstances such as this through a press release to a particular journalist. It occurs to me that if we are setting up a specialised security agency within An Garda Síochána with specialised resources and the like, insofar as that is something new, there should have been, first, an announcement by the Minister for justice and, second, it should have been made to the Houses of the Oireachtas and brought before the justice committee of the Oireachtas to discuss what this new agency will actually do, how it will be different from what is going on at the moment and what precisely on the face of it we are involving ourselves with. The story as published stated, "A detective chief superintendent has been appointed to lead the security service and its state-of-the-art technology". We do not know what that is. Is it surveillance? I do not know. It also stated, "The bureau will also serve as the counter-espionage agency, protecting the government, politicians, state agencies and the gardaí themselves." This perhaps is slightly irrelevant to amendment No. 1 but we are giving in section 8 the right to any member of An Garda Síochána, including these people, to stop anybody on the street who they believe has committed an offence in the past, no matter what the offence is, and to demand of them their name, address and date of birth.

Section 8 is so badly drafted they could be plain-clothes gardaí or gardaí who are part of this new security service. We are being asked to rush through consideration of this legislation but we are being deprived of a Minister standing in this House and informing the House about what The Sunday Times was so elaborately briefed on last Sunday, what difference this new agency will make and what the limitations and reporting requirements will be for it. When you look at what has happened in Britain, MI5 and MI6 are much less secret organisations than they used to be, or at least we think they are. I get worried that the democratic aspects of what we get up to, including considering section 8 in all its inadequacy, is railroaded through on a guillotine motion without people carefully considering what powers An Garda Síochána really are going to have, how they will be deployed, who in an An Garda Síochána will deploy them and in what circumstances. This is a blank cheque being given to stop anybody in the street who a member of An Garda Síochána has reason to believe or suspect has committed any offence - trivial, serious or whatever. This is the new power. It does not even just apply to stopping persons in the street. It applies to people anywhere that a garda can lawfully confront any person and ask them for their identification in the manner prescribed.

In that vein, I propose the deletion of this section until such time as the Minister comes up with an acceptable section. We cannot be asked to accept it is defective and too wide but that the Minister may go to the Dáil and come up with a different section, or a different wording for the section, and if we pass it in this House in a guillotined debate, we will get around to reconsidering it later in the Dáil. In all probability the Dáil's consideration will also be guillotined, the way we are going. I get concerned about the legislative process that is leading to an inadequate section being rubber-stamped without a fair opportunity for people to tease out what it actually means. If the Minister is saying it is fine as it stands and he is not going to change it that is one issue, but he led the House to believe he would consider tightening it up and now there is no sign of any amendment to the Bill arising out of what happened on Committee Stage.

I thank Senator McDowell for his amendment and his contribution. It is important to point out there are ten amendments on Report Stage and three hours for them. I am happy to be here for the three hours. It is also important to recall that for the Garda Síochána (Powers) Bill 2026, which I deliberately started in the Seanad, I was here for Second Stage on 4 February and Committee Stage on 14 May, 26 May and 10 June. I have given a lot of time to listening to what Senators have to say in respect of the legislation. The guillotine will not be necessary tonight because I know we will be able to finish ten amendments within three hours. It is unfair to say it has been rushed or railroaded when the Bill has been in the House since 4 February and this is my fifth appearance before the House in respect of the legislation.

Senator McDowell is correct in stating that he highlighted on Committee Stage a concern he had about section 8 of the Bill. His concern was that if the section was read in a particular way, it could imply that a member of An Garda Síochána had authority to stop someone and require them to give their name, address and date of birth, even if they were not lawfully present on the person's premises or elsewhere. At the time I indicated that I thought it was implicit within section 8 that this power could only be exercised in a public place or in a place where a member of An Garda Síochána is lawfully present. However, I did recognise that section 9 contains a not dissimilar power concerning stop and search for possession of a relevant article. The first part of it expressly limited the locations where that power could be exercised to a public place or where the Garda was otherwise lawfully present. I said I would look at it and I have asked officials to look at it. The Senator is correct in stating that I do not have an amendment before the Oireachtas today. Once I get the advice from officials and if I am not satisfied with it, I will require an amendment to be brought forward in the Dáil for the purpose of amending section 8 so that it contains a similar restriction as in the introductory part of section 9.

However, amendment No. 1, which Senator McDowell has put forward today and we are considering, is not an amendment that seeks to amend section 8 by inserting the restrictions I just outlined, namely, that this is a power that can only be exercised by the Garda in a public place or where it is lawfully present. Instead, the amendment seeks to remove section 8 in its entirety. I cannot accept that because it is an important power An Garda Síochána has.

In practical terms, if this section 8 was removed, it would mean that even where a garda has reasonable grounds to suspect criminal offending or the possession of a relevant article, there would be no statutory authority under Part 2 to require a person to provide basic identifying information. I do not consider that such an outcome would be appropriate or conducive to the effective investigation and prevention of crime. For that reason, I am not in a position to accept the amendment.

It is also the case that the provision can be read in such a way that this is not a power that is exercisable at large. It is expressly conditioned by the requirement that the member have reasonable grounds for the relevant suspicion before any such requirement may be made. It is this threshold safeguard that ensures the power is both necessary and appropriately constrained.

If it was the case that the provision was enacted as it is, and if a member of An Garda Síochána was unlawfully present in somebody's residence and sought to invoke section 8 by asking the person whom they reasonably suspected of committing an offence to provide his or her name, address and date of birth, I think it is fairly clear that the courts would not find any offence being committed in circumstances where the garda was unlawfully present when that power was invoked under section 8.

As I said to Senator McDowell on the last occasion, I will get advice from officials in respect of this and if I am not satisfied with that advice, I will bring forward an amendment in the Dáil, and obviously we will come back to this House, to put in the limitation contained in section 9. However, my preliminary view, in advance of receiving that advice, is that it is fairly implicit in the provision that this is a power, as is the case with all Garda powers, that can only be exercised in circumstances where a garda is in a public place or lawfully present.

Briefly, by way of reply, the problem is with the Minister saying that in his view, it is implicit that that is the case. That is not the way in which we should be legislating. Somebody on the street who is confronted by a garda, or somebody who is somewhere else where a garda is lawfully present, and the garda claims he suspects him of having committed any offence, at any time in the past, is not going to be able to search the Dáil record. He will not be able to say the Minister seemed to think that this was confined to public places and, therefore, it is his right not to have these particulars demanded of him by a member of An Garda Síochána and his right to refrain from giving his name, address and date of birth on pain of committing a criminal offence means that he can safely tell the garda to get lost. That is not the way we do business. If we want to make it applicable to public places, we should say so. Print and ink are not so expensive that we cannot actually say what we mean and that we leave things implicit in circumstances such as this.

On another point, if the Minister considers section 9, he will see that it mentions the power to search somebody for a "relevant article", which is defined in section 7 as anything stolen or obtained unlawfully, explosive materials, controlled drugs, firearms and ammunition, any article the possession of which is in contravention of the Firearms Act, syringes where the person concerned might use them to cause injury to another person, computer programmes and computer passwords and encryption keys. Those are the things which the power of search relates to. Why, therefore, should not the definition of "offence" be similarly linked? If someone cannot be searched except on the suspicion of one of the "relevant article" offences in section 7, why can people be stopped and asked for their name, address and date of birth for any offence? It is not just simply the location; it is also the enormous breadth of the suggestion that if a member of An Garda Síochána believes that somebody has committed an offence as a historical fact, they can ask that person, when they see them in the street, for their name, address and date of birth, without limit.

The point about it being in a public place or that being implicit in it is not the only problem with section 8. It far too broadly and, I suggest, excessively widely drafted at the moment. It needs to be tightened up. It really is not correct. I am not going to call a vote on this because the Minister has said he will look at it again. However, it is not good enough for the people drafting the legislation to come up with a section of that kind and say that this or that is implicit in it. That power is given to a member of An Garda Síochána. Persons against whom that power to identify themselves with their name, address and date of birth is deployed are not in a position to say, "Well, this may be the statute law but this garda is asking me now, in the street or in some other public place where he is lawfully present, for this information and telling me that if I do not give it to him, I will be committing an offence and because I do not know whether the Minister's view of what is implied or explicit is correct, I cannot risk being arrested for an offence." When we are drafting legislation and considering the work of the draftsman in circumstances such as this, our job is to get it right and not to say, "Seanad Éireann saw problems with this and the Minister said that if there was a problem, he would address it in a Dáil amendment, rather than dealing with it in this House."

I refer to the widening functions of An Garda Síochána and the new security section, which has been established as Ireland's secret service, effectively. We have to be careful about the powers we give An Garda Síochána. I am in favour of the Garda having effective powers but not overweening powers. It was in that spirit that this amendment was offered to delete the section, because it is bad law. I put it to the Minister, if he wants to, either in this House on Report Stage, which, unfortunately, is now being guillotined, or in Dáil Éireann, to come up with a proper section 8. Undoubtedly, some legislative measure incorporating some of the elements of section 8 is a sensible arrangement but this is not the way to do business.

I move amendment No. 2:

In page 11, to delete lines 16 to 19.

I second the amendment.

Amendment No. 2 seeks to delete lines 16 to 19 on page 11 of the Bill, as amended on Committee Stage. Those lines refer to "A person of whom a requirement under paragraph (c) of subsection (2) is made". The paragraph in question - section 11(2)(c) of the Bill - provides that a garda may "require the driver to be in or on or to accompany the vehicle, as may be appropriate, for so long as is necessary to complete the search". Section 11(4) of the Bill, which we are proposing to delete, refers to "the purposes of section 15", which, as we will discover when we read section 15, is another way of saying for the purposes of committing an offence. Section 15 provides that a person who "shall be guilty of an offence" will:

be liable—

(i) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months, or to both, or

(ii) on conviction on indictment, to a fine not exceeding €30,000 or to imprisonment for a term not exceeding 5 years, or to both.

The latter provision makes it an arrestable offence.

Let us read section 11(4) again:

A person of whom a requirement under paragraph (c) of subsection (2) is made shall, for the purposes of section 15 [in other words, to determine whether he or she has committed an offence], be considered to have failed to comply with that requirement where he or she, at any time while the requirement is in force, is not in, on or accompanying the vehicle in relation to which the requirement was made.

I need to get a clear indication of what is being talked about here. For the purposes of determining whether a person has failed to comply with a requirement, and for the purposes of criminalising them, they will be deemed "to have failed to comply with that requirement where he or she, at any time while the requirement is in force [whatever that means] is not in, on or accompanying the vehicle in relation to which the requirement was made". I have to say I do not understand that. I think I know what it is driving at, in that if a person walks away from the car, they are deemed to be failing to comply with the requirement to bring it somewhere so that it can be searched. I think I understand that, but that is not what this subsection says. It does not say that. It says that a person will be deemed "to have failed to comply with that requirement" if, at any time, they are not in the vehicle. That is bad drafting, again. It really is. If the Minister is bringing this to Dáil Éireann, he should have another look at that because I would not like his Bill to be laughed out of court or Dáil Éireann. If, at some stage, a person gets out of the car, they are deemed to have a committed a criminal offence if they have been required to drive the car to a place where it can be inspected. That cannot be right, and it is badly drafted.

I know what it is driving at. I think the draftsman in the Attorney General's office could come up with a better attempt to achieve what the common-sense view of it is probably intended to achieve. Let us be clear that this section actually says that the driver is required to be in or on or to accompany the vehicle, as may be appropriate, for so long as is necessary to complete the search. We are talking here about somebody who has had a requirement made of them. Such a person is deemed to have failed to have complied with it if, at any time while the requirement is made, he "is not, in, on or accompanying the vehicle". If he goes to use the bathroom in a pub near where the thing has happened, he has committed an offence because he has refused to comply with this requirement. It is not well drafted - that is all I would say. That is the reason I have proposed its removal in its present form.

Sometimes I feel I am back in the classroom having my homework corrected by the teacher. I rise with trepidation. Unlike in the classroom, I am able to answer back here.

Without fear of punishment, I am sure.

Can I try to explain it to Senators? Section 11 deals with additional provisions to search. Section 11(2) says, "Where a member decides to search a vehicle under section 9 or 10, the member may do one or more of the following". This is a provision that arises when a member of An Garda Síochána, exercising their reasonable suspicions available under sections 8 or 9, decides that it is necessary to search a vehicle. Section 11(2)(c) says that one of the things the garda can do is, "require the driver to be in or on or to accompany the vehicle, as may be appropriate, for so long as is necessary to complete the search". If a garda wants to search a car, he can say to the person in, on or accompanying the car that they have to stay with the vehicle while the officer searches it. What happens if the person decides that they are heading off? It makes it extremely difficult for the garda to complete the search. What we are trying to do is put forward a provision that would make the failure to comply with that requirement an offence in those circumstances. That is what is set out in section 11(4), which refers to "A person of whom a requirement under paragraph (c) of subsection (2) is made". In other words, it relates to the person who is told to stay with the car, accompany the car or to be in or on the car. A person of whom such a requirement has been made, shall for the purposes of determining whether an offence has been committed - the offences are under section 15 - be considered to have failed to comply with that requirement, which, in effect, means they are committing an offence, "where he or she at time while the requirement is in force, is not in, on or accompanying the vehicle in relation to which the requirement was made". This provision is seeking to say that anyone who disobeys a direction - an order - from a garda that requires them to stay with the vehicle is committing an offence. That is the purpose of the provision.

Similar provisions already exist in respect of many offences on the Statute Book. Their purpose is to ensure that lawful searches can be carried out effectively and safely, and that there is clarity for both members of An Garda Síochána and members of the public as to what compliance with a lawful direction requires.

Notwithstanding what Senator McDowell views as the inelegance of the drafting, I am satisfied that subsection (4) is both necessary and proportionate, and I cannot support its deletion. As we know, the amendment would also delete a reference to section 15, which is the offences section. That applies only where a person obstructs a member of An Garda Síochána acting under the powers conferred by the legislation or fails to comply with a lawful requirement made under those powers. The offences provision is intended to support the effective operation of the statutory powers granted by the Oireachtas. Subsection (4) provides necessary clarity as to how compliance with this particular requirement is to be assessed.

The purpose is very clear. A garda is entitled to direct a person who is in charge of a vehicle, who is in it, who is on it or who is accompanying it to stay with a vehicle while a search is carried out. If he of she does not do that and breach the requirement set by the garda, he or she is committing an offence.

I fully agree with the Minister. In terms of practical experience, if you have suspicion to search a vehicle, you may well be of the opinion an offence may be carried out. The person operating the vehicle may well leave the scene and that has been the case. The requirement for the person to stay on the scene is practical, common sense and necessary. Senator McDowell made the point that the person may leave the scene for a particular genuine reason. That is actually covered by the wording "as may be appropriate". From an operational sense, I am in agreement and have no doubt that Senator Gallagher will be in agreement as well that this is practical and required.

I thank Senator O'Donovan for his contribution and commend him on that. The requirement is imposed by the member of An Garda Síochána and the wording is "require to driver". The garda can permit somebody, to use Senator McDowell's example, to go if they need to go to the toilet. The garda can restrict or limit the requirement imposed on them. I again thank Senator O'Donovan for his helpful contribution in terms of the practicality of what happens when a search of a vehicle is ongoing.

I said at the beginning that I know what the amendment is trying to achieve. If somebody does a runner, he or she is already caught by section 15 because he or she has failed to comply with section 11(2)(c) and is liable to be arrested if he or she does a runner. The particular need for section 11(4) is not apparent to me. If someone is required under section 11(2)(c) to "be in or on or accompany the vehicle, as may be appropriate, for so long as necessary to complete the search" and if he or she fails to do that, he or she already committed an offence under section 15. Section 11(4) adds nothing to that.

It is a significant enough point that if a member of An Garda Síochána decides to search a vehicle under sections 9 or 10, he or she can also, for instance, under section 11(2)(b), "where the place at which the member finds the vehicle is, in the member's reasonable opinion, unsuitable for such search, take the vehicle or cause it to be taken or require the driver forthwith to take the vehicle to a specific place which the member considers suitable for such search". The person could be asked to bring it to the yard at the back of a Garda station under that power. He or she is effectively under arrest if he or she is required to bring his or her car to some place that a member of An Garda Síochána tells him or her to bring it and he or she is obliged to do that forthwith.

I do not see how section 11(4) adds anything to the scope of section 15, which is the failure to comply with the requirement that is made of anybody. I do not see how the special provisions in section 11(4) are required. If someone has done a runner having been stopped, by doing that he or she has failed to comply with the garda's direction under section 11. He or she has committed an offence because he or she will have failed to be in or on or accompany the vehicle, as may be appropriate, for as long as is necessary to complete the search.

We will give consideration to it in light of what the Senator said.

Is the amendment being pressed?

I press the amendment.

I move amendment No. 3:

In page 11, to delete line 35 and substitute the following:

“(b) the time, place and date of the search;”.

I second the amendment.

This amendment is very simple and again refers to page 11. It relates to the record of a search under sections 9 and 10, which is required by section 13(2)(b), and amends it to include the time, place and date of the search. That would cover circumstances where people are brought to special custody suites. In any event, there is no reason the place of the search should not be recorded on PULSE, wherever it is made and in whatever circumstance.

I understand what the Senator wants to do is insert the word "place" in section 13(2)(b) so that will be recorded. A lot of information is being recorded already under section 13. It requires the Garda to keep a record that shall contain the following information; the name, address and date of birth of the person or the driver of the vehicle concerned; the time and date of the search the reason or reasons for the search; the provision of this Part under which the search was conducted; and the outcome of the search, including where a search results in the seizure of a thing suspected to be a relevant article or evidence of or relating to the commission or intended commission of an offence, the thing concerned. All of the crucial detail in respect of the search is provided. I do not see the relevance or usefulness of the place of the search.

We are getting the name and personal information in respect of the individual but regarding the place where the search took place, does it matter if it happened in one street in Monaghan town or another street in Monaghan town? I understand the intention behind the amendment, which is to ensure that an adequate record is maintained of the exercise of search powers but it is not necessary. Section 13 already provides for a statutory record to be made of the search, including the time and date on which it occurred. In addition, Garda operational records, such as PULSE, routinely captures further details relating to the exercise of search powers, including information regarding the location of an incident. That information is already provided for on PULSE.

The purpose of the section is to establish the key elements that must be recorded in law. It is neither necessary nor desirable to proscribe every operational detail on the face of primary legislation, where those matters are already addressed through Garda procedures and recording systems. I am satisfied that sufficient records of the exercise of these powers will be available for operational, supervisory and accountability purposes without the need for this additional statutory requirement.

If the Minister could say, with his hand on his heart, that the PULSE record would not say it was on Grafton Street of wherever that I was searched, I would take what he is saying and think it was a very conservative position but maybe there was some sense in what he is saying. I believe that any record made by any member of An Garda Síochána of a stop and search will mention the place where it happened. The Minister may have forgotten the particular debate on Committee Stage that gave rise to the amendment was that some of the other Members of the House wanted there to be some data as to whether or not people were brought to custody suites for personal searches or not. The Minister will recall that Senator Ruane expressed a desire there should be some record of the number of times that people are brought to a custody suite under the powers in the Bill as opposed to cursory searches on the street.

She was concerned that those personal searches were a major intrusion, especially when carried out in a custody suite, on the liberty and freedom of movement of people who are searched. Effectively, they are detained and brought to a Garda station and subject to a search. I am not simply dealing with what she was concerned with, which was internal or cavity searches, but general searches involving strip searches, for instance, which are entirely justified in many circumstances and entirely necessary in limited circumstances.

If the Minister would tell me that the Commissioner of An Garda Síochána regards it as unduly onerous to say where a search took place, that is fine, but it is simply obstructive because that material will be on PULSE. If I am stopped on Grafton Street, the PULSE record will say that is what happened and that I was not somewhere else, for example, on O'Connell Street. I believe the record will state that and, therefore, I cannot see that there is any additional imposition on An Garda Síochána in simply recording where searches took place, rather than just simply the fact that a search took place. In the end, people will look back on this debate and this amendment and they will say there is no need whatsoever to record the place where a search took place. There is none because the Seanad decided that it was not part of a proper record. Therefore, I do not accept the Minister's rejection of the amendment.

Section 13(3) is relevant to this. Obviously there is a purpose behind keeping the record of this information. The reason is the person or driver who is the subject of a search may make a request in writing to a superintendent in the Garda Síochána district in which the search was carried out for a copy of the record. The purpose of section 13 is to enable the person who is searched to get information. The real information they are looking for is the reason or reasons for the search. They will be aware of where they were searched, of that there is no doubt. The location of a search is recorded on PULSE, so PULSE will identify where a person was stopped. I fail to see the legislative advantage to putting in primary legislation the place where a person is searched in circumstances where the objective of the provision is to enable a person to seek information. They will know where they were searched.

I know it is slightly out of order but, with the permission of the Chair, I just want to say that I do not take subsections (3) and (4) as being the entire purpose of the record being created. It is important for other general reasons of accountability of An Garda Síochána, regardless of whether or not the individual wants a record, that there is a proper record of the places of a search, the people who were searched and the outcomes of the search available to the Minister and the Commissioner. In those circumstances, given that the Minister has conceded that the place of a search will in fact be available, I do not see any reason it should not be put in. I ask the Minister to reconsider the matter before he gets to Dáil Éireann.

I move amendment No. 4:

In page 12, between lines 9 and 10, to insert the following:

"Report on the operation of search and seizures

14. (1) It shall be the duty of the Commissioner to furnish to the Minister at least once in every calendar year a report containing the following data in anonymised format:

(a) the total number of searches made under section 9;

(b) the total number of searches made under section 10;

(c) the total number of searches made under sections 9 and 10 where such searches did not result in the seizure of a relevant article of evidence relating to the commission of an offence;

(d) such other information as the Minister may prescribe by regulation in relation to the age, gender, race, nationality and social status (including membership of the traveller community) of persons searched or of the drivers of vehicles searched.

(2) The Minister shall as soon as practicable lay the report furnished to him under this section before each House of the Oireachtas.”.

This amendment arises out of the extensive debate we have had on this matter. I do not propose to repeat it or to extend today's proceedings to go back over all of the reasons that were advanced by Members of the House in relation to this matter. The amendment is designed to enable the publication of statistics about stop and search by the Minister so as to assure the public that these kind of stop-and-search powers are being properly and impartially administered.

I second the amendment.

I thank Senator McDowell for the amendment. It is important to state that the purpose of recording information in relation to a particular stop and search, as provided for in section 13, is to provide a clear and factual account of the incident, which may be relied upon by the person concerned. That needs to be emphasised. Section 13 is for the benefit of the person who is searched. It was not designed as a mechanism for statistical reporting on the operation of Garda powers generally. That is an issue of importance and which should be available, but that is not the purpose of section 13. While this amendment does not amend section 13 directly, it would repurpose information gathered in the course of individual stop-and-search encounters for a broader statistical reporting function, including the publication of demographic information relating to persons stopped and searched.

I recognise the importance of accountability and of understanding whether patterns of disproportionality exist. However, I am not convinced that a stop-and-search encounter is the appropriate setting in which to collect sensitive demographic information. Stop and search is intended to be a brief and focused interaction based on reasonable suspicion. Requiring members to collect information relating to race, nationality, Traveller identity or social status at that point raises practical and methodological concerns. It may lengthen what is intended to be a brief interaction and risks increasing tensions at what is already a sensitive moment. There may be more appropriate ways of collecting such information that ensures it is accurate, consistently recorded and capable of meaningful analysis. That is a valid point. If we think of the powers that are contained here for stop and search, they are powers that are going to be exercised based on reasonable suspicion and a decision that a member of An Garda Síochána is going to make immediately and spontaneously. If it is a requirement that information relating to the age, gender, race, nationality and social status of the persons concerned is collated, the search process is going to become inordinately complicated. If a garda is suspicious that somebody has committed or is committing an offence and stops that person and avails of the powers under this legislation, he or she will know that if they stop the person and search them for that reason, he or she will nearly have to go through a questionnaire with the person to find out his or her age, race, gender, nationality and social status. That would grossly undermine the purpose of the legislation and the provision.

I agree with Senator McDowell, and I am well aware that this information would be very useful to have in terms of trying to identify people who come in contact with the criminal justice system. However, I do not believe this is the mechanism to do it. This would inflict serious damage on the ability of members of An Garda Síochána to do their job spontaneously, based on decisions they make on the spur of the moment and based on their reasonable suspicion.

The Senator should be aware that the Government is currently considering how demographic information may be used appropriately across the criminal justice system, including through the development of a common identifier for individuals engaging with the criminal justice system. That work is ongoing. I believe it provides a more appropriate context in which to consider these complex issues than an amendment to the stop-and-search provisions of the Bill.

I also have reservations regarding subsection (1)(c) of the amendment. The fact that a search does not result in the seizure of a relevant article or evidence does not of itself indicate that the search was unjustified or improperly carried out. The statutory test is whether the member has reasonable grounds for suspicion at the time the power is exercised. Stop-and-search powers are preventative as well as investigative and, accordingly, seizure rates viewed in isolation may not necessarily provide a complete picture of the operation of these powers.

I also should point out that the programme for Government has committed to introducing a common identifier for individuals who interact with the criminal justice system. This will enable gardaí, courts, prisons and probation records relating to the same individual to be connected, and it will improve the State's ability to assess the operation of criminal justice powers. The Department of justice has indicated that the preferred approach is to use the PPSN as that identifier and it awaits legal advice on that matter. The objective is to allow information to be linked across different parts of the justice system. This will avoid duplication and improve data quality. Similar approaches to record linkage already exist in other areas of the public sector, including health, although their application to the criminal justice system would be different. Importantly, the operation of a common identifier does not depend on the routine recording of ethnicity at the point of stop and search. Where demographic information is lawfully available through other datasets the identifier can facilitate broader statistical analysis without requiring ethnicity to be recorded during every encounter.

For those reasons, I think it would be inappropriate to include this amendment so that it would operate in respect of every time a garda invoked powers of stop and search. However, I do recognise that accumulation of this data is important and worthwhile, and there is work being done on the common identifier for that purpose.

Does anybody else wish to comment before Senator McDowell does a final round? No. Senator McDowell, please.

Briefly, I want to reply, if I may, to the Minister's contribution. First, the information which a member of An Garda Síochána is obliged, under the Minister's text, to establish under section 13(2)(a), is "the name, address and date of birth of the person or, as the case may be, the driver of the vehicle". Those are three things which certainly are mandatory requirements of the report of a stop and search. If we are into questionnaires on the side of a street, those things have to be recorded and the reason for the search has to be recorded.

According to section 13(2)(e): "the outcome of the search" has to be recorded. The Minister mentioned the accumulation of information, in searches that yield nothing, would complicate matters. It is already required to be made. If somebody is stopped and searched, the Minister's text requires it to be said that there was a search, these were the reasons for the search, and this is the main address and age of the person involved. Section 8 states that a member of An Garda Síochána is entitled to "require the person to provide his or her name, address and date of birth". That provision is already in the Bill.

The additional entitlement that the amendment would make to allow the Minister, in his discretion, to include further material to be recorded does not complicate anything if the Minister decides that ethnicity, race or nationality are irrelevant. Senator Keogan, after Committee Stage, informed me that she was told by members of An Garda Síochána that these are recorded. Again, the Minister said that he would confirm to Senator Keogan whether this kind of material is recorded and we are having a Report Stage debate before that information was furnished to her, which I think is unfortunate to put it mildly.

As for the common identifier idea the Minister has mentioned based on the PPS or whatever else, just imagine it is the PPS number. The PPS is not recorded on the street. No reasonable person, and none of us, know our PPS numbers unless we have a robotic memory. If a Garda asked me for my PPS number I would have to tell him that I have no idea whatsoever. Maybe it is my VAT number or it is the same number.

The Senator is very lucky.

I cannot recollect that. If I was a much younger barrister I might not have registered for VAT.

The Senator does not need it.

I do not know my PPS number.

The Senator is drifting slightly off the topic of the amendment.

The point I am making is that the PPS number would only come into play where someone was convicted and then there is the common identifier that Michael McDowell of such and such a number was convicted of assault in Dundalk District Court and the same person was commonly identified, by that number, as having engaged in theft somewhere else. It would be very clear, and should be clear, to the Garda that a repeat offender - a person who was convicted of a number of things in different places - is identified clearly as being the same person and not just somebody with a similar name. That is not what this amendment set out to achieve. It is not setting out to achieve accuracy as to who is or who is not the subject of a number of encounters with the criminal justice system, which could only happen in the context of a conviction unless the Minister is going to introduce some system whereby people have to, on demand, when they are being searched, yield up their PPS number, which is nonsense in my view.

This comes down, in the end, to the wilful decision, I think, emanating from An Garda Síochána that they do not want in the Republic of Ireland the same obligation to provide material or to record material, which is required under the Police and Criminal Evidence Act in the UK and equality legislation to be the subject of, number one, a record, and number two, accountability, in order to ensure that the law is fairly and impartially applied between different sections of society based on their status. I do not believe, and I do not think anybody thinks, that the forces of law and order north of the Border or on the island of Britain are impeded by making the kind of record which shows conclusively whether the use of stop and search powers is used disproportionately in respect of some groups in society.

I reiterate my point that on any view of effective policing, it is quite possible that particular stop and search incidents are going to weigh more heavily on people in certain categories. I have no doubt but that that will be the case and it does not necessarily suggest racism, ageism, misogyny or whatever words are thrown about in such circumstances. I have no doubt that statistical homogeneity is never going to be achieved in the way in which these powers are actually applied by any effective police force. What I do say is that it is important, if we are introducing the stop and search powers of this kind, that we do what I believe the European Convention on Human Rights, ECHR, would require of any responsible member state and what is done right across the various constituent parts of the United Kingdom to at least make it clear what age groups are being more or less affected by the deployment of these powers.

I believe there is no decent answer to a similar requirement existing in Irish police procedure. The Minister's reference to the programme for Government and the plan to have a common identifier for people who are in contact with An Garda Síochána based on the PPS number have nothing to do with the proposition as to what kind of person is likely to be stopped at random on a street in Dublin. There is no connection between the two, and we will never connect people up with a common identifier unless they are convicted of an offence and unless there has been some court process. Nobody will be in a position, and gardaí are not entitled, to ask for a common identifier of people whom they search. If such a power were to be conferred on the Garda, the accusations of Big Brother would be enormous. It would be said that the Garda was effectively keeping an eye on people whom gardaí randomly stopped and searched and was able to connect them by a common identifier with other brushes they may or may not have had with the criminal justice system.

I regret to say I am not persuaded. On this occasion the Minister has made it very clear he does not intend putting into effect in Ireland what is required in Northern Ireland and Great Britain. Therefore, in the circumstances, I have to press the amendment.

I will briefly respond if I can. Senator McDowell has raised some very interesting points. This is a complex and difficult issue. I do not believe that the appropriate mechanism to deal with this complex and difficult issue is in the legislation that is going through the Seanad today. What Senator McDowell wants to be able to get information on, through this legislation, is details pertaining to the nationality, the race and the social status of persons searched. The Senator referred to what is happening in the UK. I am nearly hesitant to move into this territory, but what I want to see happen as Minister for justice is that when a member of An Garda Síochána exercises powers that they have under section 8, section 9 or section 10, they do so completely blind to an individual's race, gender or nationality. The only basis for An Garda Síochána to exercise these powers is if it has a reasonable suspicion that an offence is being committed. There is a lot to be gained from getting data as to whom the Garda is interacting with, and that is why I referred to the other work that is ongoing. What I would not like to see happen, however, is that if data is produced, in some respect this puts an obligation or pressure on members of An Garda Síochána to move outside the statutory scheme, which is that people should be stopped and searched only if there is a reasonable suspicion of an offence being committed. I would not like to see a situation where the Garda has data and says, "Oh, look, a certain nationality is over-represented and another nationality is under-represented; we need to stop and search more of the latter." That is not what should happen. I have no doubt without getting any data that the overwhelming number of people who are stopped and searched, or who would be stopped and searched pursuant to the provisions here, will be men as opposed to women. I do not think it could be suggested that for gender equality reasons the Garda should seek to ensure that more women are stopped and searched.

It is a complicated issue. There is a huge benefit in policymakers, the public and the Garda having data on who is being interacted with when it comes to the criminal justice system, but I would be very hesitant about adding that obligation on when it comes to the stop-and-search powers. There may be other ways of doing surveys in respect of it, but the only reason a stop-and-search power should be used by a member of An Garda Síochána is that he or she has a reasonable suspicion that an offence is being committed.

Is the amendment being-----

Very briefly, and I will finish on this-----

No, no, no. Senator-----

You have allowed the Minister in twice, a Chathaoirligh.

I know, but the rules of-----

I am sorry, but you have allowed him in twice, a Chathaoirligh.

I know. The only person allowed to speak twice is-----

Is me.

-----is you. I have allowed it before. I can say that the Minister does not come back in, just to be helpful to the House, but the proposer gets to speak twice. Do you want to press the amendment, Senator?

I am trying to be reasonable. All I am saying is that I hear what the Minister has said but the issue is not as described by him. It is not about whether men and women are unfairly discriminated in relation to these matters. I can see that some sections of the population are more likely to feature than others. I fully accept that proposition. What I am saying, however, is that Ireland is deliberately blinding itself to the reality of the deployment of these powers in similar jurisdictions in which racial minorities-----

Are you pressing the amendment?

-----are inordinately the subject of police stop-and-search powers. I fully agree with the Minister-----

Senator, are you pressing the amendment?

-----that a blind approach is what is required, but the simple fact is that that is the same in England as well. The Home Secretary in England would say exactly the same - "I want no discrimination and I expect no discrimination" - but the facts prove otherwise.

Senator, are you pressing the amendment?

I am.

I welcome from Dexcom in Galway, Columba McGarvey, Adrian Furey and Orla Lovett, who are guests of Deputy Peter Roche. They are most welcome to Seanad Éireann. I thank them for being here.

I welcome the Minister back to the House. Amendments Nos. 5 and 10 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 5:

In page 14, between lines 18 and 19, to insert the following:

“(2) Where an application for a search warrant relates to premises, devices or materials belonging to a journalist or publisher, the court shall, save in exceptional circumstances, conduct an inter partes hearing and invite the journalist or publisher to make submissions on whether journalistic privilege applies.”.

I second the amendment.

Amendments Nos. 5 and 10, as the Cathaoirleach has said, are linked. Many aspects of this Bill are to be welcomed, including the fact that it codifies Garda use of powers to stop and search, arrest, searches and seizures, and detention, and clarifies the law on stop and search. It is welcome that what was found in provisions in over a dozen pieces of legislation is now reduced to two clear powers to stop and search. The Commission on the Future of Policing in Ireland recommended in 2018 that in order to ensure the legitimacy of policing and the protection of the rights of all: "There needs to be clarity and transparency about police powers and codes of practice as to how to exercise those powers. This should be based in legislation." It also recommended that "legislation defining police powers of arrest, search and detention should be codified, with statutory codes of practice."

While these changes are welcome, the delay in bringing them forward is notable. It is now eight years since the commission on the future of policing made its recommendations, however, the part of this Bill Sinn Féin has significant issues with is its failure to explicitly recognise the right of journalists to protect sources. This Bill fails to explicitly recognise the right of journalists to refuse to reveal confidential sources. The Minister needs to address the extensive concerns about the implications of this Bill for the ability of journalists to do their job, including holding those in power to account. It should be amended to ensure there is a court hearing to determine whether journalistic privilege applies before a warrant can be granted, as is the case in many other jurisdictions, including in the North.

The District Court should be empowered to take journalistic privilege into account when considering a Garda application for a search warrant, rather than after the application has been granted. The Bill needs to explicitly recognise the rights of journalists to protect sources, which is arguably required to bring the law into line with the 2023 decision in Emmett Corcoran v. the Attorney General where the Supreme Court judge, Mr. Justice Gerard Hogan, stated that: "The general protection of sources is integral to a free press." He added that without constitutional protection of the media’s right to protect sources, journalists "cannot be reasonably be expected to discharge their functions of educating public opinion and holding government to account in the manner expressly provided for in article 40.6.1 of the Constitution.” Sinn Féin has tabled a number of amendments to address these flaws in the Bill.

Amendment No. 5 strengthens the essential protections for journalists and publishers and ensures that when An Garda Síochána seeks a search warrant for journalistic materials, the court must, except in truly exceptional circumstances, hold an inter partes hearing. That means the journalist or publisher can make submissions on whether journalistic privilege applies. This safeguard is not about obstructing investigations; it is about defending press freedom, preventing fishing expeditions and upholding the public's right to know. By requiring judicial scrutiny and participation from those affected, we reinforce transparency, proportionality and the vital independence of the media in a democratic society.

Amendment No. 10 provides journalists and publishers with a vital safeguard, which is rapid High Court review of any warrant or order affecting them. It ensures decisions are examined promptly, recognising the fundamental importance of protecting journalistic sources and preventing undue interference with the media's democratic role.

I thank Senator Andrews for his amendment and his contribution. Senator Andrews's amendment and the subsequent amendments relate to Part 3 of the Bill, which concerns search of premises. Senator Andrews has correctly emphasised the importance of our legal process giving recognition to journalistic privilege. The reason I am bringing forward amendments in respect of Part 3 is specifically because of the Supreme Court judgment to which Senator Andrews referred, namely, Corcoran. Corcoran, as I indicated previously, was a very important decision. It involved a journalist being subjected to a search warrant application by An Garda Síochána. It was heard in the District Court. The search warrant was for the search of the offices of the journalist and his own residence. The District Court was not informed at the time of the search warrant application that the respondent to the application was a journalist. Mr. Corcoran went the whole way to the Supreme Court and was successful in his challenge to the search warrant that was imposed against him. The reason An Garda Síochána had sought the search warrant and access to his digital communications - his computer - was because there had been a very serious assault and attack in a certain part of the country and the Garda believed there was valuable and useful information and evidence on Mr. Corcoran's laptop. Ultimately, however, journalistic privilege prevailed.

During the course of the Supreme Court judgment, Mr. Justice Hogan, to whom Senator Andrews referred, indicated that section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 was very defective because it did not provide any mechanism for the court to be informed about the fact that an application for a search warrant may impinge upon or affect journalistic privilege. Mr. Justice Hogan and the rest of the Supreme Court said that section 10, which is the provision that deals with the application for a search warrant, required urgent legislative intervention by the Oireachtas. That is why I am bringing forward what is in Part 3 of this piece of legislation. It is to ensure the concerns expressed by the Supreme Court are responded to, and that the legislation seeking search warrants is more robust, and also recognises and reflects the importance of privilege that may arise. I believe that the provisions contained in the Garda Síochána (Powers) Bill do so.

Senator Andrews's amendment refers to the necessity for an inter partes hearing, but it is important at the outset to set out what is the procedure set out in Part 3 of the legislation. For instance, looking at section 17, it governs the standard provision in respect of an application for a search warrant.

It sets out when a member of An Garda Síochána may apply for a search warrant. Section 17(5) states:

Where an applicant [who is a member of An Garda Síochána] suspects that privileged material may be present at the proposed place of search, or contained in, or accessible from, any electronic device or information system that may be present at that place, his or her application shall include such information as is known to him or her relating to -

(a) the nature of the privileged material concerned, and

(b) any other matter relating to the privileged material ...

To begin with, therefore, there is now an express statutory obligation on any garda who is applying to the District Court for a search warrant to inform the court of the fact that he or she believes there may be privileged information pursuant to the search. That could be legal professional privilege, it could be journalistic privilege or it could be some other public interest privilege. That is expressly provided for.

Then there are further provisions contained within section 19, which provides for the search of electronic device or information system under search warrant. As the last subsection of section 19 provides that "subject to the condition that a privilege screening or digital forensic examination of the data concerned may be conducted", there is a recognition that there is a process of screening information for any privileged information.

However, the real substantive provisions that relate to Senator Andrews's amendment are contained in sections 24 and 25 of the Bill. Section 24 sets out a process for the determination as to privilege. If there is going to be a complaint made by an individual who is the subject of a search warrant that information or a computer was seized that contains material governed by privilege, this is set out in subsections (1) and (2) of section 24. Without reading out all the procedures, there is a mechanism contained within this for a hearing before the High Court where individuals can set out what they view as the reasons as to why the search warrant or the material should not be inspected because it is covered by journalistic privilege. Obviously we could not have a situation where somebody is just able to say you cannot search that because it is legal privilege or that it is journalistic privilege. There has to be some assessment of it. Just because somebody is a lawyer it does not mean that their phone is protected from search by the Garda. Privileged material on the phone is protected but the Garda are entitled to probe that. Similarly, just because a person says he or she is a journalist does not mean that the search comes to the end.

I indicated, I think on Committee Stage, that I felt this proposed amendment to section 18 was not necessary and I remain of that view. The Bill already provides for inter partes adjudication before privileged material may be examined, but preserves the ability for initial warrant applications to proceed ex parte where operationally necessary. As I mentioned already, sections 24 and 25 of the Bill create a structured mechanism for the resolution of privileged disputes. Where material is apprehended to be privileged and an authorised member seeks to access it for evidential purposes, an application must be made to the High Court. That application proceeds on notice to the relevant person who is entitled to identify the material claimed to be privileged and make submissions to the court. The court may also issue interim preservation directions and appoint an independent and suitably qualified person to examine the material and report back. Unless and until the court determines that the material is not privileged, it cannot be examined by investigators. Where privilege is upheld the material must be returned or deleted. That distinction reflects the approach endorsed in the Corcoran case, as I just indicated, namely, that the essential safeguard is prior independent review before access to the material itself, rather than requiring every procedural step to occur on notice. For that reason I cannot accept the amendment.

Senator Andrews may have been concerned that the term "journalistic privilege" is not contained within the Bill. There are reasons for that. It is hard to get a specific definition "journalistic privilege". It is recognised in Irish law and it is respected in Irish law. The decision of Corcoran emphasises that. As a drafter, I thought it was more appropriate to have a reference to privilege in general. There can be an assessment on whether it is legal professional privilege or journalistic privilege or other types of privilege that may arise. There is a statutory procedure in place that enables that submission or that contention of privilege to be assessed and determined on an inter partes basis.

Before I come to any Senators to reply, I welcome the guests of the Garda College from the United States of America, the National Executive Institute of the Federal Bureau of Investigation. They are most welcome to Seanad Éireann and I am sure the Minister and our colleagues here in the Seanad welcome you as well. I hope you enjoy your stay in Ireland and thank you for all the work that you do in your collaboration with our Garda College.

No Senators are indicating to reply. Is the Senator pressing the amendment?

Yes.

Amendments Nos. 6 and 8 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 6:

In page 14, between lines 18 and 19, to insert the following:

“(2) In considering an application for a search warrant, the District Court may consider whether journalistic privilege applies and shall refuse the application unless satisfied that the requirements of section 21 (Protection of Journalistic Sources) have been met”.

I second the amendment.

Amendment No. 6 empowers the District Court to actively consider journalistic privilege when assessing search warrant applications. It ensures warrants are refused unless strict requirements are met. This protects press freedom, prevents overreach, and reinforces the essential democratic role of independent journalism.

Amendment No. 8 strengthens the protection of journalistic sources by allowing disclosure only through a court order and only where strictly necessary and proportionate. It requires judges to weigh constitutional rights, European Court of Human Rights jurisprudence, and domestic case law, ensuring press freedom is upheld while balancing genuine public interest needs.

I thank Senator Andrews for his amendment. I think this was also discussed on Committee Stage. The proposed insertion of section 21 on which this amendment relies is not necessary as the Bill already provides appropriate safeguards in relation to journalistic privilege. As I mentioned earlier, the application for a search warrant to the District Court requires members of the Garda to notify the court of any issues related to privilege as is known to them. This ensures that if there are concerns regarding privilege the Garda must bring them to the judge's attention and this allows the judge to make informed decisions and draw appropriate inferences about the potential privileged material without placing the entire responsibility on the Garda. There is an application in the District Court and the district judge has to be satisfied with the application. If the Garda are aware that there may be privileged material involved in the search, that must be brought to the attention of the district judge. It is a matter then for the district judge to strike a balance between safeguarding privilege and ensuring that the judicial process can move forward. For that reason I cannot accept the amendment. As I said earlier, I believe that the provisions contained within this are sufficient to respond to the concerns that were highlighted by the Supreme Court in the case of Corcoran, and which I am giving effect to in this statutory provision.

Senator Andrews has also moved forward amendment No. 8. Are we discussing this also?

Yes. We are discussing amendments Nos. 6 and 8 together.

Amendment No. 8 is sufficiently covered by the provisions of the Bill already. The Bill significantly strengthens the protection of journalistic privilege. It introduces a judicially supervised process governing potentially privileged material. Applications are assessed on a case-by-case basis with the court empowered to seek additional information and to grant, limit or refuse access depending on what is necessary. I believe very categorically that the statutory provision in place will ensure that if a member of the Garda, the Irish police force, is going to the District Court looking for a search warrant, and if the garda is aware that this may involve privileged material, there is a statutory obligation on the garda to bring that to the attention of the court. The court will very much take that into account. Even if the search warrant is granted and information is then procured by An Garda Síochána, they cannot look at it until such time as an order is made. If an application is made by the affected party claiming that this involves privilege there is a process for it to be determined before a High Court judge. It is very thorough.

I welcome law enforcement officers from the United States who are guests of the Cathaoirleach. I hope they enjoy their visit.

I move amendment No.7:

In page 16, between lines 5 and 6, to insert the following:

“(2) Where a journalist or publisher asserts journalistic privilege in respect of material stored on an electronic device, no requirement to provide access credentials shall apply until a court has determined whether the privilege applies.”.

I second the amendment.

Amendment No. 7 ensures the District Court can assess whether journalistic privilege applies before granting a search warrant. It requires the court to refuse any application unless strict safeguards are met protecting press freedom and preventing disproportionate intrusion into journalists’ work.

I thank Senator Andrews for his amendment. Under section 19(1)(f) of the Bill there is an ability within a search warrant for it to be expressed in such a way as to require any person who appears to the authorised member to have access to, or to have under his or her power or control, the information held in any electronic device or that can be accessed by it to provide them with the passwords.

The amendment put forward by Senator Andrews and his colleagues is in respect of that. It says that where journalists or a publisher asserts journalistic privilege in respect of materials stored on an electronic device no requirement to provide access credentials, which is what is provided for in section 19(1)(f), shall apply until a court has determined whether the privilege applies. The Bill therefore places the issue of compelled access under judicial supervision from the outset because an order under section 19(1)(f) will only be made where the judge is satisfied that such powers are necessary and proportionate having regard to the sworn information provided by the applicant. The Bill therefore places the issue of compelled access under judicial supervision. This approach adopted reflects the recommendations of the Law Reform Commission which recognised that persons executing search warrants may require powers to obtain assistance from persons present, including assistance in accessing digital material. Similar provisions already exist in Irish law under the Criminal Justice (Theft and Fraud Offences) Act. The Bill, therefore, is not creating a novel or unrestricted power but rather modernises and structures existing investigative powers in light of the realities of encrypted digital evidence.

Importantly, the Bill also responds directly to concerns expressed in another important Supreme Court decision, DPP v. Quirke, and, indeed, in Corcoran v. The Commissioner, with regard to the seizure and access of a device. It expressly allows a judge to limit the scope of any warrant concerning electronic devices and to attach conditions where necessary. The reason for that is that in the Quirke decision Mr. Justice Charleton said that an electronic device is really a separate space that requires a specific and separate authorisation.

On the amendment, an additional provision stating that a journalist or publisher has no obligation to provide access credentials once privilege has been asserted would be counterproductive. The statutory framework already assumes that access to a device may be required in order to identify, preserve and securely process potentially privileged materials before a court can determine whether privilege applies. In the context of encrypted devices it may be impossible to conduct privileged screening unless the device can be accessed or preserved. A blanket exception would therefore risk frustrating the operation of the carefully balanced safeguards contained in the Bill. Therefore I cannot accept the amendment. Privilege will be preserved and protected and there is the mechanism whereby it can be assessed but what cannot happen is somebody says “privilege” and therefore you cannot look at it or seek to access it. It is at a further stage for the content of the privilege to be assessed and determined by the court.

I move amendment No. 8:

In page 17, between lines 16 and 17, to insert the following:

“Protection of Journalistic Sources

21. (1) A journalist or publisher shall not be required to disclose the identity of a confidential source except by order of a court.

(2) A court shall only make such an order where—

(a) it is strictly necessary and proportionate for the administration of justice, and

(b) the public interest in disclosure substantially outweighs the public interest in the protection of journalistic sources.

(3) In determining an application under this section, the court shall have regard to—

(a) Article 40.6.1 of the Constitution,

(b) the jurisprudence of the European Court of Human Rights, and

(c) relevant domestic case law.”.

I second the amendment.

I move amendment No. 9:

In page 19, between lines 21 and 22, to insert the following:

“Safeguards for Retention, Access and Use of Digital Data

24.(1) Any digital data seized, captured or otherwise obtained under a search warrant issued pursuant to this Act shall be retained only for the minimum period strictly necessary for the investigation of the offence to which the warrant relates.

(2) Digital data that is not, or is no longer, relevant to the investigation or prosecution of an offence shall be securely deleted without delay.

(3) The Garda Commissioner shall ensure that all digital data retained under this Act is subject to:

(a) strict access controls;

(b) comprehensive audit logging;

(c) encryption at rest and in transit; and

(d) periodic review to confirm ongoing necessity and proportionality.

(4) Digital data obtained under this Act shall not be used for any purpose other than the investigation of the offence specified in the warrant, unless authorised by a further warrant issued by a judge of the High Court.

(5) Where digital data includes information relating to third parties not suspected of any offence, such information shall not be examined, retained or used except where strictly necessary and proportionate and expressly authorised by a judge.

(6) Nothing in this section shall be construed as permitting the retention or use of digital data in a manner inconsistent with the Constitution, the European Convention on Human Rights, or the Charter of Fundamental Rights of the European Union.”.

I second the amendment.

Amendment No. 9 relates to safeguards for retention, access and use of digital data. The amendment introduces essential safeguards for how gardaí retain and handle digital data seized under warrant. The amendment ensures data is kept only for the minimum time necessary, securely deleted when irrelevant and protected through strict access controls, encryption and audit logs. It requires periodic reviews to confirm ongoing necessity and prevent mission creep.

Crucially, the data will only be used for the specific investigation named in the warrant unless a High Court judge authorises any broader use. Where third party information is involved additional judicial approval and strict proportionality apply. Overall these safeguards reinforce constitutional and human rights standards in the digital search context.

I thank Senator Andrews for his amendment. In responding to it I must rely upon what is in section 23 of the Bill because it deals with very many of the concerns expressed by Senator Andrews in his amendment.

Section 23 is entitled "Treatment of material seized under search warrant". Section 23(1) provides that anyone who "seizes material, shall ensure that following its removal from the place of search the material is stored and a record is made of the material". There is also a requirement that when it is no longer needed the material must "be returned to the person who disclosed the material", and then, others who have it must ensure that the material is deleted, without delay, and the person from whom it was seized must be informed at the time of its deletion.

Section 23 sets out the rules for handling seized material. It requires confidential treatment and the return of deleted material. As I have said, it is consistent with the decision of the CJEU in the Landeck case on police access to data stored on mobile phones during criminal investigations. That court was of the view that there was a need for post-access notification once this would not prejudice the investigation. Such notification is not required per subsection (4) where doing so would compromise national security, prejudice a criminal investigation or criminal proceedings or would jeopardise the safety of a person.

As I said, I believe that section 23 addresses the concern set out in the amendment. However, even if the amendment was accepted it would not be possible for the Garda to ensure that data is encrypted at rest and transit as the seized data may itself be encrypted. Members of the Garda are obliged to log and retain digital evidence seized in the format in which it was captured under warrant. Encryption runs contrary to current evidence and best practice of maintaining the technical integrity of seized data should it be challenged in court proceedings. Therefore, I cannot accept this amendment.

I move amendment No. 10:

In page 22, between lines 19 and 20, to insert the following:

“Expedited High Court Review

26.(1) A journalist or publisher affected by a warrant or order under this Act may apply to the High Court for an expedited review of the decision.

(2) The High Court shall determine such applications as soon as practicable, having regard to the importance of protecting journalistic sources.”.

I second the amendment.

When is it proposed to take the next Stage?

Now.

Is that agreed? Agreed.

I thank everyone. I thank the Minister for his presence in the Chamber again today.