Garda Síochána (Powers) Bill 2026 [Seanad]: Second Stage
Dail Éireann — 2026-09-16
============================================================

Alan Kelly (LAB), Tipperary North

Before we get into the Bill, and trust me I am not going to go on about this for long, obviously, we all know about the programme tonight. It is absolutely impossible for the Minister not to come in here next week to answer questions on this on behalf of the Government, the previous Minister for justice, the Department of justice and An Garda Síochána. I am glad he is nodding. That request will be going in and I ask the Minister to do that because it will be necessary. I am glad to see the Minister seems to be agreeing. I encourage him to sit down with his Department and to go through absolutely everything. I hope he has heard what I said. He should go through everything. I have had enough experience of answers coming from his Department that have been incorrect. He has apologised to me here twice on some very sensitive information. He cannot say he has not been told because I have raised many of the issues, although not all because not all will be covered by this programme, directly with the Minister, separate from anything to do with protective disclosures, and I have tabled hundreds of parliamentary questions. Finally on this issue, I believe there was an absolute lack of knowledge in this Chamber today on the part of the Government in relation to aspects of protected disclosures legislation and it was cringeworthy.
This Bill is a very important one and it is long in the making. As the Minister will be aware, it was published in 2021 and it went through pre-legislative scrutiny in the justice committee in the same year and a report was published in 2022. I support a lot of what is in this Bill but I also have a lot of concerns which I will go into in a while. The concerns are well-meaning and they run on from some of the issues raised by other Deputies but not only those. The Bill has changed considerably since the general scheme. Some of the changes relate to the narrowing of the scope that has taken place, with the Bill now focusing more squarely on powers of search with provisions relating to arrest largely absent. Some changes, as the Minister made clear, are responding to some Supreme Court decisions in the Quirke and Corcoran cases and EU obligations arising from the Landeck judgment. Those precedents have arisen in the years since 2021 and it is right that the Government addressed the legislative issues they highlighted.
Other changes and omissions are concerning, however. The statutory codes of practice which were at the heart of the general scheme are nowhere to be found. The same is true for Part 2 of the general scheme on the protection of fundamental rights. We are talking about very serious questions here where the State may infringe on the rights of privacy and of data protection. What happens when the imperative of public safety and the investigation of crimes come up against the individual and constitutional freedoms that underpin our whole democracy? That is why the Government's approach here is concerning in some aspects. Notwithstanding the merits or otherwise of the Bill's provisions, by disregarding the protections of those fundamental rights that prefaced the general scheme, it risks giving the impression that those rights have been deprioritised or discarded in the drafting of this legislation, and that is concerning. It is giving the wrong impression.
The ten recommendations made by the justice committee in the report on pre-legislative scrutiny have largely not been implemented. Will the Minister go through the recommendations one by one as to why not? The committee recommended that the provisions be amended to provide more limited circumstances in which gardaí can compel individuals to provide their phones and personal data to gardaí as part of a search warrant. This has not happened. In fact, the opposite is the case. It raised serious concerns of the provisions around senior gardaí, rather than District Court judges, to issue search warrants in urgent circumstances and recommended the provisions be removed. Again, this has not happened and this is concerning. Not being able to get hold of a District Court judge in a timely manner does not seem to merit giving the powers we are giving and allowing here. The actual issue is not necessarily with the gardaí at that rank having to say they believed search warrants are needed but it puts other gardaí at longer ranks in difficult circumstances from time to time, as the Minister will appreciate. That is what the real concern is here. It is about the gardaí at lower ranks who have to deal with these issues.
The committee also recommended that consideration be given to the possibility of introducing sanctions for illegal searches to ensure gardaí are aware of and compliant with their obligations, and to safeguard the fundamental rights of citizens. Not only has this not happened but the entire part dealing with fundamental rights has been removed. We have long moved on but I have raised the issue "bikegate". That farmer's buildings were searched without a warrant. What has happened since? Has that ever been looked into? The famous "bikegate" caused all the controversy and cost the Exchequer a lot of money. There was no warrant. Has there been any consequence? We all know the answer to that. That farmer never had the chance to look for compensation or recompense. Not that he actually wanted any financial compensation but he never had the chance because it was outside statute. It was outside statute because he did not know about the fact that there was no warrant in the first place. That is a complete anomaly which the Minister might address at some stage.
How can statute run out for somebody whose premises were illegally searched because they did not know about it? The legislation needs to be looked at because the timeframe is from the time of the search, not from the time when the individual found out that there was no warrant. I ask the Minister to look at that. It is an anomaly that affected this gentleman whom I met. He is a very decent man.
The committee looked closely at the codes of practice to be provided for and recommended that they be transparent, publicly available, drafted with public consultation and accompanied by a data protection impact assessment. The decision not to include statutory codes of practice in the Bill is simply baffling. The Minister's press release announcing the publication of this Bill last Christmas noted that "the Commission on the Future of Policing recommended that police powers of search, arrest and detention should be codified and supported by statutory codes of practice". Where are those statutory codes of practice? They are nowhere to be seen. Why? I do not know.
It is worth reflecting on the words in the report from the Commission on the Future of Policing, which was published in 2018. It stated:
The purpose of policing is to protect the human rights of all members of society to live free from violence, abuse, crime and fear. The justification for police powers to arrest, search or detain, and thereby to curtail the rights of some individuals in certain circumstances, is rooted in the duty of the police to serve and protect society as a whole. Police have to exercise these powers appropriately, effectively and with fairness to everyone.
This is precisely why clear and effective codes of practice, placed on a statutory footing, are so important. It is why the report went on to recommend that legislation defining police powers of arrest, search and detention be codified with statutory codes of practice. While the Minister may tell us that codes of practice will come down the line later, why has the opportunity to put them on a firm statutory footing not been taken in this Bill? Passing this legislation without that provision risks putting the cart before the horse.
I watched, and was also very taken by, Senator McDowell's contribution in the Seanad in relation to this legislation. I note the Minister is now bringing forward some amendments based on some of the comments made there. The Minister is open to changes. I acknowledge that. It is not the first time I have said that. He has done so in the past too, so I want him to think about these matters.
I also note that while the stated aim of the legislation, as expressed in the Minister's press release, is to consolidate the existing Garda search powers, that is not exactly what the Bill technically does. As section 4 makes clear, the powers in the Bill are additional to whatever statutory powers the gardaí might already have. That is not consolidation; it is extra.
This is an important distinction as it seems to show that the Government is talking out of both sides of its mouth. The lack of clarity raises real risks, and I am going to get into those. The Bill also clarifies the powers available to gardaí to stop and search members of the public, including requiring that a written record be made of such a search. I welcome that.
The issues with stop and search as a police policy are well documented. Research by our near neighbours has consistently found that ethnic minorities are disproportionately targeted and the tactic widens the gap between the police and the diverse communities they serve. One study in 2014 found that people of colour were four times more likely to be the subject of stop and search than white people. It also found that the practice was one of the least effective ways of tackling knife crime compared to other methods of monitoring diversion and community-led deterrents, such as having more police on the streets.
Those concerns were why the justice committee recommended in 2022 that under this Bill, ethnicity be recorded during stop and search in order to build a comprehensive data set of the ethnicity of people searched by An Garda Síochána. The Bill before us does not do that either. Why?
I am now getting in to a deeply concerning area in relation to journalistic privilege and privilege in general. Following the Corcoran judgment, the Government is now requiring that An Garda Síochána must make clear to a judge when it anticipates that privileged material will be found in the course of a search. However, the determination of whether privilege applies will only be made by the High Court after - that is a critical word - a device has been seized. What happens in the silo between the device being seized and the determination being made? Does An Garda Síochána just look at it, as in literally just look at it, without going into it? How will the Minister guarantee that is what will happen? You cannot unsee something you have seen. If officers see privileged information, which they are not entitled to see, post a determination by a High Court judge, what happens? If there is to be a criminal case, will that not be jeopardised? How will the Minister deal with this?
Why are we dealing with these issues ex parte and not inter partes, where both sides can go before the judge as they do in Northern Ireland? It seems wrong that this is the case. Inter partes hearings will at least allow the journalist involved, or the person with the privilege involved, to make their case. Again, I fail to see in this legislation how devices that are taken are not going to be looked at by An Garda Síochána prior to a determination by a High Court judge. I do not believe that is realistic or even practical.
We then have the issue of whistleblowers. I will walk out of this House and meet a number of the whistleblowers who are on the television programme tonight. I will walk straight out of here and meet them again, having met them many times. Just say they talk to or meet a journalist or they give something to a journalist out of public concern. What is the difference between members of An Garda Síochána - I am not saying this will happen but it could, potentially - going and searching for that documentation because they know the journalist has it and then, in the vacuum before it goes before a High Court judge for an ex parte hearing, looking at that? What is the difference between intelligence gathering for other reasons as opposed to doing it for the right reasons? What happens to that privilege? What happens to the privilege the journalist has? How can we guarantee that the actions will be done for the right reasons? Legislation has to reflect and protect privilege and it has to protect in the circumstances I have just outlined. This legislation, as drafted, has holes in it which mean it will not do that, and I have just outlined an example.
Where are we on the whole issue of data searching regarding the use of other forms of searching for phones, electronic devices, etc., which have not or will not go before a judge? We all know that we now live in a world where the Border does not exist, electronically speaking. There are now technologies out there that will intercept communications going to electronic devices without ever appearing on this island. In fact, the Minister acknowledged in the past that we have a weakness in this area. He said it and I acknowledged that publicly because I agree with him. We were very lucky that it did not fall down in relation to a high-profile case in this country a few years back. It was a criminal case, and the Minister is aware of what I am talking about.
On the searching of all electronic devices, which I obviously believe in under the right circumstances, in the last number of years, given what we now know happened in Northern Ireland in relation to journalists, has there ever been a case of intelligence gathering or other methods whereby organisations from outside the State were used to source information on electronic devices in this State? Will the Minister ask that? Somebody needs to ask it, given the way the world is now. Obviously, it would not be legal, because we have a process here for how such searches take place. I want the Minister to ask this question of An Garda Síochána and I will come back to him on it. Has there ever been a scenario where any outside organisations, intelligence agencies or countries have, in any way, to the knowledge of anyone in the Department of justice or An Garda Síochána, garnered or intercepted - use whatever word you like - any electronic information belonging to anyone in this country with the knowledge of any apparatus of this State? It is a very interesting question.
Privilege is not defined here. I am taking it from the Minister that, given the legislation brought into this House previously by Brendan Howlin and enhanced by others, while we are talking about journalistic privilege and the concerns I have expressed, I presume Oireachtas privilege is protected. I presume Oireachtas papers, while people are Members of the Oireachtas, are protected. Will the Minister guarantee that in his reply? We are talking about journalistic privilege, but I note Oireachtas privilege is not covered in this. I went through it. There are actually very few definitions. Will the Minister give us a guarantee that is covered? That is a layer above again. The people here are the elected people.
Together with these new powers in the Bill to compel individuals to handover PIN codes and passwords for devices, it is understandable that groups like the National Union of Journalists have had concerns. We need a lot of clarity on the issues I have raised, particularly towards the end. It is worth remembering the words of Mr. Justice Gerald Hogan in his judgment in relation to privilege and journalistic privilege.
This long-awaited Bill is a mixed bag of welcome measures but also issues I have deep concerns about. I expect the Minister will have to make amendments to this legislation throughout this process. I also do not expect it to be a quick process because there are very technical and legalistic issues that we will have to discuss in detail at committee level and throughout this process.

---

Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted.

Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/dail/2026-09-16/debate/main
Retrieved: 2026-09-28T05:50:48+00:00
Sitting date: 2026-09-16