Sorca Clarke (Longford-Westmeath, Sinn Fein) | Oireachtas source

Gabhaim buíochas leis an Aire. I will first address the manner in which this Bill has been introduced. It has long been known that this area needs to be addressed. Yet again, the Government has been found wanting. A proper approach to law reform does not involve sticking one's head in the sand and hoping that things will work out. There is no doubt that great complexities exist around data retention but they are not resolved by being ignored. Now, in a sense of heightened urgency the Government is seeking to address these issues while acknowledging that it is unlikely the Bill will be the lasting solution. It has engendered a sense of panic. The Joint Committee on Justice was asked to waive pre-legislative scrutiny, refused and was then asked to engage in pre-legislative scrutiny at very short notice. This is far from ideal and has produced, in the view of Sinn Féin, a poor solution to the challenges at hand.

It must be noted that EU law in the area does need to be examined, as my colleague, Deputy Martin Kenny, pointed out in April when the Advocate General of the Court of Justice gave his view on the Dwyer case. Any data retention regime must, naturally, comply with EU law. There is little doubt that the strict adherence to the notion that only threats to national security merit the retention of data can lead to serious criminals evading justice. I note that the submission from An Garda Síochána mentioned the challenges that all EU countries face, not just Ireland. The Minister must seek to address this at European Union level, solely in respect of serious crime.

There is a balance to be struck in EU and domestic law between civil liberties and the need for justice, as well as for a stable regime where there is certainty for operators, prosecutors, the courts, An Garda Síochána and ordinary citizens. The Data Protection Commission was only given a copy of the general scheme of the Bill two weeks ago and was invited to partake in the rushed pre-legislative scrutiny session to which I refer at 24-hours-notice. The commission has concerns arising from the proposed data protection audits referred to in the Bill.

In terms of the operators, there is little in the Bill which sets out the when, how and where of data retention. Improvising in respect of these areas is not something that should be done. The consequences of getting it wrong are very worrying. According to Ronan Lupton, the chair of their representative group, it could take between 12 and 24 months to build the systems necessary required under the provisions of the Bill. Presumably, the Minister will have introduced fresh legislation within this period so this timeline will then need to be reset. Consultation with the operators over what is and is not feasible must be done.

For prosecutors, the uncertainty is of no great help. Obviously, the Office of the Director of Public Prosecutions, DPP, is unlikely to refuse any additional tool it can gain. If, however, it is uncertain about how legally sound the existing arrangements are, then a situation where a Bill at which a large number of valid critiques have been levelled will be enacted in order to cover a limited period will be of no great comfort to it.

The courts are in a similar boat. I fear they will be making decisions that can be resolved by policy. The latter is an undesirable situation, in light of the separation of powers, but a seemingly likely one because the Bill lacks detail and provisions relating to real-world application.

The Garda Síochána, as already mentioned, has flagged that the issue of data retention is a challenge for many countries. Yet its job will be among the most difficult under this regime. It is worth quoting the remarks of its representative at the Joint Committee on Justice last week:

Under the scheme of the Bill, whilst AGS will be able to utilise Preservation and Production Orders to secure evidence, this process will be forward-looking and not retrospective. This will cause significant difficulties in criminal investigations, which usually commence post incident. However, this restriction does not arise in relation to matters relating to National Security matters.

The rights of ordinary citizens need to be recognised within this process. The Irish Council for Civil Liberties, ICCL, has outlined a number of its concerns. It is clear that, if passed, the Bill will lead to further legal uncertainty and legal challenges of the type brought by Graham Dwyer. Victims deserve better than that. At the same time, indiscriminate data retention with little legal certainty or process poses a great threat to privacy. Proper supervision of access arrangements are important but of course the best protection is always to not collate data in the first place, followed by collating it for specified reasons with a clear legal basis.

The Bill allows for a one-year retention period that can be renewed. This could see data being retained indefinitely, which is not a desirable outcome. The functions of a judge who grants access to this data must be expanded. There is a recognition of the need for supervision in the Policing, Security and Community Safety Bill. That Bill has enjoyed a far longer and more detailed scrutiny process, which is no doubt required here also.

Despite the Government's foot-dragging in this area, there is a clear need to address the challenges the ruling presents. Sinn Féin is holding its own engagements with stakeholders. Any new Bill needs to respect these stakeholders and be the subject of a proper timeframe to facilitate their input.

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