Peter Power (Limerick East, Fianna Fail)

There are two points involved here. One is the intention to ensure that the legislation is not abused. We would agree with any provision that seeks to prevent that. The second point is the compilation of qualitative information for submission to the European Union for the purpose of reviewing both this legislation and legislation across the European Union. These are two very different matters. With regard to ensuring the legislation is not abused, the relevant oversight and the High Court judge's report to the Taoiseach, which we mentioned in our previous discussion, deal with that.

This section essentially deals with the necessary compilation of information for submission to the European Union. Article 10 of the directive obliges member states to provide statistics to the Commission on an annual basis on the retention of data generated or processed under the terms of the directive. The statistics must include: first, the cases in which information was provided to the competent authorities in accordance with the applicable national law; second, the time elapsed between the date on which the data were retained and the date on which the competent authority requested the transmission of the data; third, the cases where requests for data could not be met. Section 9(5) of the Bill sets out the information that must be contained in the reports by the Garda Commissioner, the Chief of Staff of the Permanent Defence Forces and the Revenue Commissioners. That information precisely reflects the requirements of the directive.

The purpose of the statistics compiled under section 9 is that they must be transmitted to the Commission each year. For the purposes of clarity and consistency it would be desirable that each member state compile and transmit the same classes of statistics to the Commission. Those classes should be as required by the directive. Section 9 has no other purpose. Any statistics compiled under it that are in addition to those required under the directive would therefore have no added value. I have already mentioned the evaluation of the operation of the directive being carried out by the Commission. Under Article 14 of the directive the Commission is obliged to submit to the European Parliament and the Council of Ministers an evaluation of the application of the directive and its impact on economic operators and consumers. The statistics submitted under section 9 will feed into that evaluation. Without meaning in any way to anticipate what the report might say, if it transpires that changes to the system of compiling the statistics are included, that would be the appropriate time to consider amendments to the statistics regime.

It is also the case that the type of statistics sought by the amendment could prove misleading. In the normal course of events, evidence is compiled from a variety of sources and only when put together can a file be submitted to the Director of Public Prosecutions. It is not usual that a prosecution would commence on the basis of the data information alone. Evidence can emanate from a range of different sources. It would be impossible to draw a direct correlation between requests submitted and prosecutions. At its most simple, submitting a request as to when a Mr. Ryan made a telephone call will not, of itself, lead to a prosecution. Making a telephone call is not an offence. It is just part of a pile of different evidence to be collected. When all the evidence is put together and the full picture is available to the Garda, a prosecution can then take place. It is just not possible to draw a connection between a request and a prosecution. Even if it were, the administrative time involved in putting together all that information and trawling through every case to see if a request for information on retained data led to a prosecution would be incredibly burdensome for the Department, the Garda or whatever administrative authority is charged with supplying the retained data.

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