Brendan Howlin (Wexford, Labour) | Oireachtas source

She has done so. Presumably then there will be a collective view that maybe the issue should be readdressed recognising the fundamental importance of not only matters that go to protection of the integrity of the State but also matters that go to prosecuting serious crimes that are by nature ones that threaten the viability of the State anyway if we cannot prosecute murderers or if child abuse or human trafficking become more difficult to prosecute.

I am intrigued by the Minister's belief that this is happening anyway. I do not know whether she is telling us that there may be the prospect in the foreseeable future of an amended directive. Is that what is envisaged? In the interim, we must implement the law as it has been stated by the Court of Justice of the European Union and we have to make the best fist of it. I would have liked more time to tease this out with representatives of An Garda Síochána because I am not sure it has fully thought through how useful the particular piece of legislation will be for it.

In terms of the so-called Schedule 2 data, such retention can only be permitted for national security purposes and where there is the approval of a High Court judge. The location data can only be retained for national security purposes, not for the prosecution or investigation of serious crimes regardless of how serious the crime is if it is not a matter of national security. Presumably this is as far as we are permitted to go and be consistent with the Court of Justice of the European Union's judgment, which would cause concern for many of us, including the Minister. The preservation orders will require the preservation of such data in connection with specific persons, locations or other indicators. A preservation order will not in itself require the granting of access to the data. Production orders will require the submission of specified data to An Garda Síochána and may include data that is already the subject of a preservation order. Again, I would like more time to tease out the transition period. We will not have time for it tomorrow either. There will be a number of crimes, probably very serious crimes, that are well-advanced in investigative terms. I do not know whether it is possible for the Minister to indicate how many of these cases are under way. Has she been briefed because she should be if this has implications for these cases? These cases may well be affected by the legislation we are putting through.

The most serious issue is whether investigations and prosecutions come to a shuddering halt because of further action in the Court of Justice of the European Union. That would be a very worrying issue. I also want to make reference to the actual basis of this Bill. A number of real concerns have been expressed. One concerns the legal requirement on the Minister and the Department to produce a written data protection impact assessment. At a meeting of the Oireachtas Joint Committee on Justice last week, I asked Department officials whether this was a legal requirement because that is the legal advice I was given. An official said he would check that so the Minister might be able to indicate to us whether there is an actual legal requirement on her to produce a data protection impact assessment. I think we want to be very clear that we are not producing legislation that will be subject to challenge immediately and because of the way it has been handled here, be referred for scrutiny to the Supreme Court.

I have a question for the Minister that I put to her officials last Thursday. Is she satisfied that it is adequate and appropriate to give this type of notice on such fundamental legislation, which will have implications for the industry, every citizen in the country with mobile data and prosecuting authorities? Is is appropriate that such little time and notice was given to the Data Protection Commissioner? There was no regard to the Data Protection Commissioner's views on the final draft of the Bill because the Bill was published before the commissioner had a chance to scrutinise the detail of it and there was no opportunity for the commissioner to come back to the Oireachtas Joint Committee on Justice. Unfortunately, the committee divided along Government and Opposition lines, which has never happened in any pre-legislative scrutiny in which I have been involved, because we were not finished. We did not get a chance to hear all the views we wanted to hear. We did not get a chance to hear or even receive a submission from some organisations that would have liked to have had an oral and a written submission. This is not good enough with regard to matters of this level of importance.

We have a very truncated debate tonight. We will have no detailed scrutiny because we will have 45 minutes tomorrow to go through every element of the Bill. We will not be able to amend any of the substance of the Bill tomorrow. The Minister is working on consolidated legislation and said she will have the general scheme before the end of this year and the Bill presented to the Dáil within the next 12 months. Will she agree to put a sunset clause into the Bill tomorrow? As flawed as the process has been, I understand the pressure she is under in terms of cases that are before the courts that we will not reference and wants this legislation enacted with great expedition to give some assurance and clarity to the prosecuting authorities. Will she agree to accept the amendment tomorrow or draft her own amendment to provide for a sunset clause so that we will tell everybody concerned, including the platforms, which will have to prepare for this, that this is a temporary measure until the overarching consolidation Bill comes before these Houses in the next 12 months and we have the real time to go through it in detail, hear the views of everybody and get the balance, which is a tricky and difficult one, right to ensure we do not tie the hands of prosecuting authorities behind their backs regarding the prosecution and investigation of serious crime and that we afford the highest protections to all our citizens, who have an entitlement under the European e-privacy directive to go about their business without being subject to mass surveillance because that would cause great anxiety and disquiet among our people? It would go some way towards addressing some of our concerns if at least a sunset clause element was accepted.

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