WE LOVE A good phone-tapping scandal here in Ireland.
The recording of journalists Bruce Arnold and Geraldine Kennedy by the Fianna Fáil Minister for Justice Seán Doherty in the summer of 1982 (in an effort to figure out where Cabinet leaks to the two were coming from) emerged early the following year. It was a scandal that brought down the Garda Commissioner, effectively ruined Doherty’s career and eventually, nine years later, brought to an end the political career of Charles Haughey.
Just last year, the recording of phone calls at Garda stations eventually saw both the Minister for Justice Alan Shatter and Garda Commissioner Martin Callinan impaled on their respective swords.
A phone tap is an Irish scandal like no other, one that genuinely seems to motivate and outrage an often sleepy electorate.
From that point of view it is perhaps understandable that the coalition government of Fine Gael and Labour wanted to bring a phone-tapping bill to the Dáil in 1985, in order to regulate the secret recording of phone conversations and prevent the kind of farrago that had brought the previous government down in such a spectacular fashion.
The bill (known as the Interception of Postal Packets and Telecommunications Messages [Regulation] Bill 1985) was brought forward by then Minister for Justice Michael Noonan in December 1985. Noonan was only a recent recruit to the Dáil – nevertheless he had conducted himself with aplomb when the initial emergence of the 1982 taps hit the headlines in January 1983 and was seen as someone with a steady hand.
Its stated aim, per the memo to government from Noonan with which it was introduced, was to “provide an effective system of checks and balances to exclude arbitrary action and to provide safeguards against abuse” for any phone-tapping or surveillance authorised by the Minister for Justice.
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The chief method of regulation suggested by the bill was to appoint a designated judge to act as a sort of referee to bring any “unnecessary authorisations” granted by the minister to his attention, so he could cancel them.
The real problem seen with the bill was one of legal proceedings – ie what was to be done if “the authorities” were to abuse the nascent legislation and ended up having a legal case brought against them.
“Putting forward a legal defence to such proceedings could put the whole system in jeopardy,” reads Noonan’s memo.
This seems to have been the fundamental issue – the memo cites the fact that when the British finally enacted such phone-tapping legislation (something they did not do until they had no other choice) they were able to install fail-safes that prevented any official from being accused of committing an offence – something Ireland could not do with its written constitution.
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Further, the bill sought to keep the existence of any warrant for a phone-tap secret from the courts as otherwise “the system of authorised interceptions could not function successfully”.
Regardless, the complications presented by the bill seem to have brought it to a halt once it was debated by the Dáil in early 1986.
An official phone-tapping bill wouldn’t see the light of day until Albert Reynolds took over after Haughey was forced to resign in February 1992 over his own role in the tapping scandal of a decade earlier.
The 1993 version of the legislation would be practically unchanged from its 1985 incarnation.
As Alan Shatter himeslf said in the Dáil during the debate surrounding that bill in October 1992, the legislation was “overdue, and very badly needed”.
I am concerned that we have a situation in which the leaders of the two parties in government are bad mouthing each other and accusing each other of being dishonest in circumstances where it seems that each of these parties may have justifiable reasons to tap each other’s telephones. It is becoming increasingly urgent that this legislation be enacted.
See National Archives File 2015/88/44
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