Patricia Ryan (Kildare South, Sinn Fein) | Oireachtas source

This Bill will significantly amend the Communications (Retention of Data) Act 2011. This is in response to a ruling in April by the Grand Chamber of the Court of Justice of the European Union, which held that the "general and indiscriminate" retention of electronic communications data for the purpose of combating serious crime is precluded by EU law. The court's ruling followed a referral by the Irish Supreme Court in February 2020, which was hearing a leapfrog appeal from the State against a High Court ruling in December 2018 which agreed that the Communications (Retention of Data) Act 2011 was incompatible with EU law.

The Bill provides that general and indiscriminate retention of communications traffic and location data can only be permitted on national security grounds where approved by a designated judge. It also provides for a system of preservation and production orders to facilitate preservation of and access to specific communications data held by service providers for both national security and for the investigation of serious crimes where permitted by an authorising judge.

A preservation order will act as a quick freeze that will require service providers to retain any specified data they hold at a particular point for a period. A production order will allow access to specified data held by a service provider for commercial or other reasons where such access is necessary for national security or law enforcement purposes. The effect of a production order will be that a service provider must immediately take steps to produce and hand over to the relevant State agency the data described in the order made by an authorised judge. Both traffic and location data retained for national security purposes and subscriber data, retained for national security or law enforcement purposes, will be retained for 12 months.

The Government previously indicated that the general scheme was consistent with EU court rulings in this area. We must ensure that there are safeguards and protections when it comes to accessing data, but we must balance this with the need to keep people safe and fight serious crime. There is an urgency in addressing this issue in light of the need for legal certainty for communications service providers and State agencies on what obligations apply to the retention of communications data, which is vital for law enforcement and national security.

The Government intends to bring forward a more comprehensive proposal later in the year to address wider reforms and a more consolidated legal framework in this area. The Minister needs to share the details of that proposal in order that we can judge the Bill before us in that context. We are potentially dealing with significant erosion of civil liberties, and must have all the information before making an informed decision.

The Joint Committee on Justice recently warned that the rushing through of this legislation would make it vulnerable to legal challenges. It further warned that the Bill will have serious consequences for future court cases. A senior garda told the committee that while the Bill's provisions are in line with European court rulings, typical investigations into serious crime will suffer under those provisions. The committee also strongly criticised the Government for announcing approval of the Bill on 31 May despite repeated indications over the past eight years that the legislation was problematic. Furthermore, the committee stated that the draft Bill was only sent to it two weeks before the Dáil's summer recess. This is not the way to do business. The committee has expressed its concern that the rushed process and lack of mandatory consultation will lead to legislation that is vulnerable to legal challenge and that this will have serious consequences for future cases. The committee also called for a sunset clause and wants much wider consultation to take place when more comprehensive legislation on accessing people's communication data is published later in the year.

Certain categories of citizens should be given separate rights, such as, for example, journalists, in order to ensure that sources are adequately protected. We also need to see a code of conduct for telecom service providers in order to provide clarity.

Yet again, we have legislation that is being rushed through by the Government. This will have consequences. If you act in haste, Minister, you will repent at leisure.

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