Independent TD Jerry Cowley stirred up grim memories of the Haughey years when he raised allegations of phone-tapping in the Dáil last week. The Mayo doctor asked the Minister for Justice Michael McDowell whether campaigners involved in the Shell to Sea campaign were under surveillance by the Gardaí.

The list of names included Dr. Cowley himself. But Michael McDowell wasn’t prepared either to confirm or deny the allegations. “I got a response saying that it wasn’t in the interest of national security,” explains Cowley. “I couldn’t believe it when they wouldn’t give me a straight answer.” He will now request that the judge who acts as the official “complaints referee” investigates further.
However, TJ Macintyre of Digital Rights Ireland, a civil liberties campaign group, believes that this might not be enough to resolve the controversy. “The problem with the complaints mechanism is that it’s largely toothless as it stands,” argues Macintyre, who teaches law in UCD. “His role is to find out whether there was an authorisation granted or not. If there was no authorisation, the complaints referee has no jurisdiction to investigate further. If rogue Gardaí were tapping phones without authorisation, there’s nothing the investigating judge can do about that.”
In order to eavesdrop on a citizen’s phone calls, the Gardaí must seek permission from the Minister for Justice. “In the USA, you need a judge’s approval before you can tap someone’s phone,” notes Macintyre. “It’s unacceptable that such a sensitive decision should be in the hands of a political figure, who’s obviously going to have the temptation to use that power for their own ends.
Members of the Shell to Sea campaign have suspected since last autumn that phones were being tapped. “The first indications came last October, the same time Shell resumed their work on the refinery at Bellinaboy,” says campaign spokesman Mark Garavan. “There was a series of coincidences – information that should have been private appeared to be known to the Gardaí.” Garavan is one of those who fears his phone may have been tapped.
After Gardaí baton-charged protesters outside the refinery in November, in reference to the protesters, Michael McDowell told reporters that “Provo tactics won’t work”. Garavan believes that his remarks are relevant to the allegations of phone-tapping. “I think that was part of the context,” he says. “The comments of the Minister and the Taoiseach seemed to imply that there was something illegitimate, even subversive about the Shell to Sea campaign. That raised the idea that the next step might be phone-tapping, and other actions that would be considered appropriate for dealing with subversion.”
Garavan is disturbed by the thought that he may have been placed under surveillance. “There’s a presumption that something untoward is going on if there’s talk of phone-tapping,” he notes. “I felt it was important to point out that I’ve never been involved in any kind of unlawful activity. We’ve been campaigning against the Rossport pipe-line through legal, political means.”
No hard evidence has come to light that verifies the suspicions raised by Dr Cowley in the Dáil. “What hard proof can you get, unless they admit it and apologise for doing it?” Cowley argues. “It would be particularly worrying if my own phone had been tapped. People contact me with their problems and look for my help as an elected representative. It’s a sacrosanct relationship, confidentiality must be assured.”
His next step will be to contact the Circuit Court judge with responsibility for dealing with complaints, Caroll Moran.
Digital Rights Ireland have been following the matter closely, says TJ Macintyre. “We’ve been talking about the lack of protection in phone-tapping for some time,” he recalls. “So this issue is of concern to us.”
Under the relevant legislation, the Minister for Justice can grant authorisation for a phone-tap if a serious offence is involved, or if “there are reasonable grounds for believing that particular activities that are endangering or likely to endanger the security of the State are being carried on or are proposed to be carried on.” When asked to investigate, the complaints referee can examine whether the case actually involved a serious offence.
“That seems to give some room for the referee to second-guess the Minister,” says Macintyre. “But it’s something that needs more clarity.”
The controversy highlights broader concerns about electronic eavesdropping. Fine Gael TD Paul McGrath has suggested that reporters may also be under surveillance. ““From what I hear among journalists, there’s a real suspicion that a number of them have their phones tapped,” McGrath told the Irish Independent last week.
According to TJ Macintyre, Michael McDowell is wrong not to disclose information about the number of phone-taps authorised every year. “He says we can’t release that data because of national security. Well, they release it every year in Britain,” argues Macintyre. “Every year a judge issues a 20-page report. Here we get a single sentence. It’s just not acceptable.”