Dr. Fred Logue:

There are different interpretations of the I. O'T v. B case. The Department's legal advice should be published so we can see what it is. That is instead of using the I. O'T v. B case as the magic words and that being the end of it. We should understand that I. O'T v. B is first about constitutional rights and not EU law rights. The context in which it took place was one in which there was not a framework and the only way to do it was an individual balancing test. That does not mean it must be an individual balancing test. I refer again to the paper with Dr. Maeve O'Rourke and Dr. David Kenny, who is from Trinity College Dublin. I am firmly of the view the Legislature can strike the balance in the legislation without it having to be a case-by-case balancing test.

I am not sure about other jurisdictions but most of them had given this right even before data protection rights came along. They would have pre-existing legislation anyway, particularly in the UK. That deals with the questions asked but this boils down to us seeing the advice on I. O'T v. B so we can have a look at it. It is very hard to answer that question without seeing what advice has been given to the Department. Based on past experience, the advice could be quite conservative or overly conservative. It would be good to have a debate about that.