Dr. T.J. McIntyre:

I thank the Cathaoirleach and members of the committee. I am very grateful to the committee for giving us the opportunity to talk to this issue, and particularly the remarkable haste with which this legislation is being put forward.

The old Yiddish definition of chutzpah is the man who kills both his parents and then pleads for mercy on the grounds that he is an orphan. I am reminded of that when I look at how the Department of Justice has behaved in this, explaining that the Bill is so urgent it must evade normal democratic scrutiny.

It has been clear since 21 December 2016, when the European Court of Justice gave its judgment in the Tele2 case, that the Irish law on data retention is contrary to fundamental rights under European law. In case there was any doubt about that, in April 2017 the former Chief Justice, Mr. John Murray, delivered his report concluding exactly the same: that this was an illegal system of mass surveillance of virtually the entire population. The report delivered an extensive list of ways in which the law violated basic standards under the Charter of Fundamental Rights and the European Convention on Human Rights.

Incredibly, we have had, essentially, no response to that from successive Ministers for Justice in the five years since then. They did not do the responsible thing, which would have been to repeal the 2011 Act and put legislation in place that was rights' compliant. Instead they persisted with, and effectively endorsed, the use of a clearly illegal power in a way that has stored up problems for subsequent prosecutions and - whatever the outcome of the Dwyer case, which itself is sub judiceand which we will not comment on - will subsequently create difficulties for subsequent prosecutions. They have fundamentally corroded the rule of law in that regard.

We received from the Department a heads of Bill published in 2017 but this was not a good faith response to either the Murray report or the Tele2 judgment.It failed to address very basic issues arising from that report and that judgment. Digital Rights Ireland submitted during the pre-legislative scrutiny of the 2017 heads of the Bill that it failed on multiple grounds. The predecessor to this committee accepted in its 2018 report that from start to finish, from the lack of notification of individuals who were affected by access, to the lack of protection for journalists’ sources, to the lack of independent effective judicial oversight, to the lack of an effective judicial remedy for abuse of the legislation, that the 2017 proposals simply failed to meet the Murray report or the Tele2 requirements. Incredibly, that is still the case today. These heads of Bill still fail to address, essentially, all of the core points arising from either Tele2 or the Murray report.

I regret that I have not had the opportunity to provide the committee with a more detailed submission on this. I hope to get that later today if possible. Fundamentally, it seems that this Bill is being rushed out with manufactured urgency in an attempt to sandbag any proper democratic scrutiny. The extent to which the Data Protection Commission has not been consulted in relation to this, is in itself a distinct breach of European Union law, which requires that there would be prior consultation with the Data Protection Commission around measures of this sort.