Brendan Howlin (Wexford, Labour) | Oireachtas source

I appreciate the difficulties in the shadow of which the Minister for Justice is operating. This is a very tricky situation. We assumed in 2011 that the law enacted then provided a reasonable balance between what all of us would expect, which is that there can be no mass surveillance of our population and that we are all entitled to what are set out in the Charter of Fundamental Rights of the European Union as our personal freedoms in the context of not having our movements monitored and details of them collated and reported to any authority.

It needs to strike that balance between the right of the State to protect its citizens, to prosecute serious crime and to ensure that the perpetrators of serious crime are brought to justice, using whatever technologies we have.

Having said that and while I fully appreciate and understand the pressures the Minister is under, it is fundamentally unacceptable that in the second last week of a Dáil sitting we would be presented with legislation like this so fundamentally important to the rights and well-being of citizens and the prosecution of serious criminal cases. Let us consider the basics of it. The Data Protection Commission's deputy commissioner had sight of the heads of this Bill eight days before he was asked to make his presentation to the Oireachtas Joint Committee on Justice and give his observations. He only had sight of the draft Bill 24 hours before being asked to make that submission. Members of the committee got a draft of the bill courtesy of the Minister the night before our session. Many of the people we had invited to make submissions to the committee were not in a position to make submissions, so tight was the notification.

The Minister asked that we do away with pre-legislative scrutiny and all of us on a cross-party basis thought that was fundamentally wrong. The whole idea of pre-legislative scrutiny is to go into the details and hear from the stakeholders before we get into the minutiae of enacting legislation. This is one of the fundamental reforms brought in in 2011. The current Taoiseach was among the champions of demanding pre-legislative scrutiny as a permanent feature of the way we do business. I accept there will be occasions when emergencies arise but too often, particularly from the Department of Justice when it has had ample time to prepare legislation and certainly do the groundwork with committees of the House, it presents us with a fait accomplibasically regarding the institutions of democracy, Oireachtas Éireann, as rubber stamps, really affording no time for the general public, affected individuals or organisations, including commercial entities in this case, to give a reasoned consideration and present their position to us because the Department of Justice knows all the answers to all the questions and could present a completed Bill that basically is unamendable.

To compound all of this I understand we are to have 45 minutes tomorrow for Committee and Remaining Stages. In essence it is probable that only the first amendment will actually be reached and debated tomorrow. That is just not good enough and not acceptable. It is not the way I expected the current Minister for Justice to deal with the House. The rhetoric is great, but this is the reality. There is no time for pre-legislative scrutiny, no time for the really affected organisations to prepare their presentation on this fundamental and tricky balancing between the right of citizens to personal privacy and the right of the State to prosecute serious crimes.

We are talking about crimes like online child abuse, murder and people trafficking, where it is really important that we give as much capacity to the prosecuting authorities and the investigating authorities to investigate and hold those responsible to account while at the same time ensuring that we do not turn ourselves into a mass surveillance state. The European Court of Justice is particularly exercised about individual rights and freedoms so that someone is able to have a life online as they would have a life in their own village and protecting their privacy in going about this.

As the Minister rightly said, the decision of the European Court of Justice had a profound impact on the 2011 Act. It found that section 6(1)(a) was inconsistent with the European eprivacy directive. Equally there have been views expressed about its compatibility with the Charter of Fundamental Rights of the European Union and also the European Convention on Human Rights itself.

Critical to determining these matters surely is the view of the Data Protection Commissioner. Surely it is not good enough that final Bill would be presented to him 24 hours before a hearing of the justice committee on pre-legislative scrutiny which, if the Minister had her way, would not happen at all meaning that all we would have is this short debate tonight and 45 minutes of detailed scrutiny, which is what Committee Stage is supposed to be about. That will not take place in the Select Committee on Justice, but 45 minutes here tomorrow where we are likely to debate only one amendment. Thankfully the first amendment is mine, but that is likely as far as we will get. That is about putting in a sunset clause which I think is the best we can do in the circumstances and at least timeline this.

I want to go through the Minister's presentation of the Bill in some detail but before doing so, I wish to say one final thing about the general structure of the Minister's proposal. The Bill is complicated to read because like all amending legislation it cross-references the 2011 Act. The Minister has promised to bring in a comprehensive consolidation Act before the end of this year. Is that right?

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