Examiner Security Legislation

Policing, Security and Community Safety Act 2024

The Policing, Security and Community Safety Act 2024  provides for the establishment of the office of the Independent Examiner of Security Legislation to enhance national security arrangements. The primary function of the Independent Examiner will be to keep under review the operation and effectiveness of security legislation to ensure security legislation remains necessary and fit for purpose, and contains appropriate safeguards for protecting human rights.

The Independent Examiner will also have a general examination function in relation to the delivery of security services, and those State offices and agencies who have a security remit will be obliged to cooperate with the Examiner in the performance of his or her duties. The Independent Examiner will also assume the existing oversight roles carried out by designated judges (currently serving High Court judges) relating to the operation of the statutory frameworks for data retention, interception of communications and surveillance. The provisions relating to these matters are contained in Part 10 as they concern amendments to other enactments of the Oireachtas.

The 2024 Act provides for the specification by the Taoiseach, following consultation with the Independent Examiner and any appropriate Minister of the Government, of enactments as “security legislation” for the purposes of this Part.

Establishment of Office of Independent Examiner

The 2024 Act provides for the establishment of the office of the Independent Examiner of Security Legislation. The holder of the office will be known as the Independent Examiner.

The 2024 Act provides for the appointment by the Government, following the passage of resolutions in both Houses of the Oireachtas, of a suitable person as the Independent Examiner. Provision is made for a person to be designated as the first Independent Examiner prior to the establishment day of the office. The necessary provision is made where the person appointed is a judge of the Superior Courts.

The 2024 Act deals with the terms and conditions of appointment of the Independent Examiner. The Independent Examiner will hold office for a maximum term of 5 years and may be reappointed once for a further term.

The 2024 Act provides for the designation by the Taoiseach of a person to perform the functions of the Independent Examiner for a maximum period of 6 months where the Independent Examiner is unable to perform his or her functions.

Schedule 6 of the 2024 Act concerns the appointment of a person who holds a judicial office as the Independent Examiner of Security Legislation. In particular it is intended to ensure that the number of authorised judges in the court concerned may be maintained.

The 2024 Act sets out the circumstances in which a person is not eligible, is disqualified from, or ceases to hold the office of the Independent Examiner. The 2024 Act provides for the resignation of the Independent Examiner.

The 2024 Act provides for the removal from office of the Independent Examiner by the Government for stated reasons.The 2024 Act requires the Minister, following consultation with the Independent Examiner and with the consent of the Minister for Public Expenditure and Reform, to provide the Independent Examiner with the funds, premises, facilities and services that are required for proper functioning of the office of the Independent Examiner. Provision is made for the appointment of officers of the Minister for Justice to assist the Independent Examiner in the performance of his or her functions.

Consultants

The 2024 Act allows the Independent Examiner, with the consent of the Minister and the approval of the Minister for Public Expenditure and Reform, to engage consultants and advisors and to enter into contracts with persons or bodies to assist in the performance of the Independent Examiner’s functions. Given the sensitivity of the information to which persons engaged under the 2024 Act may have access to, the Minister may, with the consent of the Taoiseach, make regulations providing for procedures to determine the suitability of such persons.

The 2024 Act provides that the Independent Examiner, for the purposes of the performance of his or her functions, may require, subject to specified safeguards, information holders to provide him or her with any information or document in his or her control or to attend before the Independent Examiner. The Independent Examiner and an information holder may agree memorandum of understanding concerning the manner in which information or documents are to be provided.

Objectives

The 2024 Act sets out the objectives, functions and powers of the Independent Examiner. The functions of the Independent Examiner will include:

• keeping under review the operation and effectiveness of security legislation, including examining whether it is proportionate and contains sufficient safeguards for the protection of human rights;
• reviewing refusals of information to the policing oversight bodies on grounds of the security of the State and where those bodies wish to appeal that decision and
• issuing recommendations; examining the efficiency and effectiveness of the delivery of security services.

The independence of the Independent Examiner in performing his or her functions is explicitly stated.

The 2024 Act makes provision for the Independent Examiner to review and to issue recommendations where, inter alia, requests for information or documents by the Policing and Community Safety Authority (under specified provisions of Part 4) or the Police Ombudsman (under specified provisions of Part 6) have been rejected on the grounds of the security of the State.

Reporting

The 2024 Act provides for the preparation and submission by the Independent Examiner of an annual report to the Taoiseach. The matters to be included in an annual report are enumerated and include reviews of specified security enactments every year and other security enactments once every 3 years.

The 2024 Act provides for the preparation and submission by the Independent Examiner, either on his or her own initiative or at the request of the Taoiseach, of special reports to the Taoiseach in certain specified circumstances.

The 2024 Act provides for the preparation and submission by the Independent Examiner of a review of the effectiveness of the office of the Independent Examiner, including the functions and powers of the Independent Examiner, along with any recommendations for improving its effectiveness, to the Taoiseach at the request of the Taoiseach.

The 2024 Act provides for publication, subject to safeguards regarding sensitive information, by the Independent Examiner of reports prepared under this chapter as soon as practicable after they have been laid before the Houses of the Oireachtas.

The 2024 Act requires the Taoiseach, on behalf of the Government, to issue a response to reports, including addressing any recommendations made in such reports, prepared under this chapter and to lay, with certain specified exceptions, the response before the Houses of the Oireachtas.

Sensitive Information

The 2024 Act sets out the procedures to apply where sensitive information has been provided to the Independent Examiner in relation to reports prepared under this chapter. The Independent Examiner is obliged to consult with the relevant information holder and the relevant Minister on the matter and, where it is considered that the sensitive information is not suitable for publication, to agree redactions or other amendments prior to publication of the report.7

The 2024 Act provides for an offence of disclosure of sensitive information by a person who is or was the Independent Examiner, a member of staff of the office of the Independent Examiner and a person engaged by the Independent Examiner under section 238 or an employee of such a person.

The 2024 Act requires the Independent Examiner to ensure the security of information, documents or things provided to him or her in the course of performing his or her functions by putting in place appropriate security measures.

Role under Legislation

The 2024 Act amends the Criminal Justice (Surveillance) Act 2009 to take account of the reorganisation of the Garda Síochána Ombudsman Commission as the Office of the Police Ombudsman and the establishment of the office of the Independent Examiner of Security Legislation. It makes provision for the Independent Examiner to undertake the oversight role currently performed by a serving judge of the High Court to review the operation of the Act.

The 2024 Act amends the Communications (Retention of Data) Act 2011 to make provision for the Independent Examiner of Security Legislation to undertake the oversight role currently performed by a serving judge of the High Court of reviewing the operation of the provisions of the Act.

The 2024 Act amends the Freedom of Information Act 2014 in a number of respects to align with the 2024 Act. Section 42 is amended to refer to Chapter 8 of Part 2 in place of section 42 of the Act of 2005, and to include the records held or created by the Independent Examiner of Security Legislation.