Mr. Dan Kelleher:

As the Chairman noted, he and I engaged on this point the other day. For the benefit of everyone, I will try to recap our response as best as I can. The view in the Department, sanctioned by the Ministers of the day, was that this was an area of the law that was continuing to evolve and we had to see how the case law would evolve. As the Chairman and some of the witnesses rightly said, it has been evolving for quite a few years.

Internal legal advice has been obtained at every stage. The most significant recent development probably was the judgment in 2016. A year later, as some of the witnesses mentioned, a general scheme was published by the former Minister, Deputy Flanagan. Drafting work was carried out on that scheme. I can only honestly, in transparency, advise the committee that a judgment call was made while that general scheme was progressing - it went up to a ninth draft, as we call it in the drafting trade, under the Parliamentary Counsel - that it would be unwise to publish that Bill when the ongoing litigation in the case we alluded to earlier was ongoing in the High Court, then the Supreme Court and then the European Court of Justice.

If anyone were to read the Supreme Court's referral of the Dwyer case to the European Court of Justice, it is very illustrative of the complexities of this area. Clearly, if the Supreme Court felt the law was sufficiently settled, it would not have felt the need to refer the case to the European Court of Justice. It would simply have drawn down the case law based on its expertise and applied that in the Dwyer case. When one reads the Supreme Court referral, one sees a particularly important fact highlighted, which is that the Dwyer case was the first case the court was aware of in which expert witness evidence was obtained from An Garda Síochána and, as I understand it, from a telecommunications industry analyst. Obviously, it was a case with the most graphic of circumstances imaginable. The court felt these factors needed to be considered by the European Court of Justice.

There is another factor, which is that there was a judgment, which I alluded to in my appearance before the committee earlier in the week, called La Quadrature du Net, of October 2020. That was the first case in which the European Court of Justice acknowledged at all that there could even be general and indiscriminate retention of traffic and location data. As members will be aware, however, the court made a very clear distinction as to general and indiscriminate retention of data for national and state security reasons, allowing for that in certain circumstances, which we did not know before. If we had legislated prior to then, that opportunity would not have been there. The court went on to say there could not be general and indiscriminate retention of data for the investigation of serious crime purposes. In both the La Quadrature du Net judgment of October 2020 and the Dwyer judgment of April this year, the court went on to explain further the other countermeasures that may be taken and will go some way towards mitigating the loss of general and indiscriminate retention of data. In the case of the accelerated or expedited retention of data in individual cases, which the Chairman correctly mentioned, the court explained and fleshed out its thinking in this regard in both the La Quadrature du Net and the Dwyer judgments.

I probably am going on too long about this. There has been a lot going on in this space. The decision that has been made internally at my end is that we need to legislate now because, at a very minimum, we need to start the clock running again on lawful retention of data in order that national security requirements and law enforcement requirements can recommence, as it were, in regard to accessing data lawfully. One of the witnesses mentioned the lack of transitional provisions in the Bill. That is a matter on which we remain in contact with the Attorney General. It is one of the matters we were not able to box off in the scheme of the Bill as approved by the Government during the week. It is one of the supplementary issues that will be addressed in the Bill as published.

I should mention the other issues that, unfortunately, I did not allude to in my presentation earlier, that are in the Bill to be published. They include extensive provisions for statutory guidance on how all of these provisions will operate in the form of secondary legislation. The secondary legislation is issued to the Oireachtas for 21 days and it can accept it or revoke it. That is probably too long an answer.