‘Substantial’ reform
The conference heard from Grant Donaldson, the Independent National Security Legislation Monitor (INSLM) for Australia, whose office reviews the operation and effectiveness of national-security and counter-terrorism laws.
He described the Irish bill as a “very substantial piece of law reform”, adding that much of the work being planned for the new examiner was similar to that of his office.
One extra function for the Irish reviewer was to provide advice to the Minister for Justice in relation to requests for information made by oversight bodies.
The bill also requires the examiner to assess whether delivery of national-security services is of “the highest level of efficiency and effectiveness”, and matches international standards.
“That is going to be a very, very significant task,” Donaldson commented.
Unredacted information
He also referred to one section of the bill that means that intelligence services will not have to produce information on an unredacted basis.
“That is very likely to give rise to difficulties between agencies and the reviewer,” Donaldson said.
In Australia, such information would have to be provided if required; the further publication of such material is then a matter for the oversight body.
David Anderson, a former UK Independent Reviewer of Terrorism Legislation, described the Government’s move to set up the new oversight role as “radical”.
“It’s a really thorough and sensible scheme, which we don’t have in the UK,” he told the conference.
Conflicts of interest
Anderson also said that the examiner’s powers to secure information “might benefit from further debate”, but he could understand the concerns of security agencies.
He stressed the importance of having a time-limit for publication of the examiner’s reports.
Anderson also expressed concern about the power of ministers, contained in the bill, to end scrutiny of a particular law, on the advice of Taoiseach.
He also warned against excluding suitable people from the role based on perceived conflicts of interest. “As long as it’s disclosed, I don’t think it should be an automatic bar,” Anderson told attendees.
Independence
He also stressed that the person appointed to the role would need authority “in the round” with a broad range of constituencies – including with ministers, civil servants, and police. Being seen as a “civil-liberties person” or activist could lead to the position being marginalised, Anderson warned.
He added that there were “a lot of advantages” to having someone with a legal qualification appointed, though it was not essential.
Anderson pointed out that, in his role, he had no powers to compel production or disclosure. “I’m glad that you’re getting that in Ireland,” he said.
Professor Marie Breen-Smyth, who is the Independent Reviewer of Justice & Security for Northern Ireland, told the event that access to secret and sensitive information limited the kind of person who can be appointed to oversight roles.
“The independence of the role is central, as you do come under pressure,” she said.
Prof Breen-Smyth also said that she would be “concerned” if she did not have access to unredacted files.
Proportionate
Minister for Justice Helen McEntee told the conference that she hoped to bring the bill to the Government in November, and that she was continuing to hold discussions with interested parties.
She said that the examiner would report annually to the Taoiseach, and that these reports would be laid before the Oireachtas.
The minister stated that the new role would “promote public confidence” in national-security measures.
“Intrusive powers should be used in a way that is proportionate, and only when necessary,” she said, adding that increased oversight was “the price required by the public for any new powers to counter threats”.
The minister warned, however, that oversight itself must be proportionate, and must have regard to the changing nature of the threats the State faced.