Barry Ward (Fine Gael) | Oireachtas source

My professional background is that of a criminal defence barrister. It would make my job a great deal easier if the measures in this proposed Bill went much further, or were eliminated entirely, so there was none of the data retention the State is asking for. Having said that, I have a different role when I sit in this chair. As was referred to earlier, we have to look at the protection of the security of the State. We could spend all day looking at potential misuse, for example. That question has been answered by the assistant commissioner and the DPC representatives. Of course, people can abuse their powers but it is unlawful to do so. That is a matter of putting structures in place to ensure people are not able to do that. In a personal capacity, I have many issues with PULSE, the information that is retained on it and, often, its accuracy, but that is not the subject of this proposed Bill. It may be a discussion for another day. What is very important are the structures that are maintained in place to ensure that people do not abuse their position. We cannot approach the general scheme with one eye on how things might be done illegally. We have to look at the framework of legal activity and whether it is proportionate in the context of what is required.

I agree with contributors who have criticised the lack of notice rather than the swiftness. I do not think swiftness is a problem. In fact, more swiftness would generally be a good thing for the way we do business throughout the State. There is a difficulty, however, with the lack of notice that has been afforded to members. I say that as a Member of the Seanad, which will see this proposed Bill after the Dáil has finished with it, so we will get even less notice and less opportunity, in many respects, to have our say on it. I see that as problematic. I am frequently critical of the notion of Bills coming before the Houses in a very swift fashion without the requisite notice.

I have some concerns about the suggestion Deputy Pringle made that somehow the swiftness of this calls into question the pre-legislative scrutiny process. Ultimately, the place to amend the eventual Bill is in the Dáil and Seanad. There will be an opportunity for Members of both Houses to do that. This has been a fairly robust discussion. People have had a chance to validly criticise the aspects of the proposed Bill about which they have concerns. I do not have any doubts about the validity or efficacy of this process. It is very important the Department hears what has been said here and takes it on board. It is also important to remember the Department can hear what is said here, take it on board and disagree with it. That is also a legitimate approach for the Department to take, however unhappy we might be about aspects of that.

This is a standard thing I say about all legislation; amending legislation is a bad way to start. For any citizen coming to read what these heads of Bill will become, it is impenetrable. When someone opens the first page and sees there are 20-odd sections amending an Act that is not present in this proposed Bill, it is very difficult for ordinary citizens, and those of us who are lawyers, to penetrate what is actually in the legislation. I very much favour the idea that we repeal and consolidate legislation before we amend. It is a much more straightforward way of allowing people to access what the law states.

All of that said, and taking cognisance of all the criticisms that have been made, I also recognise the two major obligations of the Department in this regard. The first is to protect us all and to protect the security of the State. I do not have a difficulty with the lack of a definition of "security of the State" because it is not defined in many other of the Acts that use the term and which have been approved by the courts in many challenges. I do not have a difficulty with that. In fact, to define the term "security of the State" is to invite problems from my colleagues in the Law Library, who will see a term and decide to pick it apart in a way it was never intended to be. I do not have a difficulty with that term, although I understand where Deputy Pringle is coming from. Of course, we should have clarity on what this term means but it is also important there be an opportunity for it to be parsed on a case-by-case basis, as appropriate. I am happy for the courts to take a responsible view when applying that.

It is also incredibly important to apply the judgment of the Court of Justice of the EU in the Dwyer case. It would be remiss to do otherwise. For that reason, it is entirely appropriate that the Department has reacted swiftly. However uncomfortable I or any other member might be with the contents of this proposed Bill, we all have to agree that it is necessary. It is something we should be moving on and seeking to amend, if that is what we want to do, as it goes through both Houses after this committee's scrutiny.