Mattie McGrath (Tipperary, Independent) | Oireachtas source

I too am pleased to contribute to the debate on this legislation, although "pleased" is the wrong word. I am genuinely perplexed because I do not know whether it is right or wrong - there is good and bad in every situation. In early June, the Government approved the drafting of the Bill, which is aimed at addressing the impact of recent judgments from the Court of Justice of the European Union, CJEU, which I have often commended and complimented. I said people had to go to Europe to get justice on many issues when they could not get justice in this country.

This is a rather troubling case, however. In the case taken by convicted murderer, Mr. Graham Dwyer, the CJEU ruled that EU law precluded the general and indiscriminate retention of electronic, traffic and location data to combat serious crime. That kind of worries me because serious crime is just that and murder is the most serious of all. Everyone is entitled to a fair trial and a person is innocent until proven guilty. The indiscriminate use of data for other issues is a completely different area, however. That is happening. All kinds of information is being kept on individuals and ordinary peace-abiding people.

The Communications (Retention of Data) (Amendment) Bill 2022 will allow the general and indiscriminate retention of communication, traffic and location data only on national security grounds and where approved by a designated judge. Far be it from me to criticise any judge but it is kind of troubling. The Bill also sets up a system of preservation orders and production orders. These will facilitate the preservation of and access to specified data held by service providers for both national security and the investigation of serious crime where permitted by an authorising judge. The preservation order will access the quick freeze, requiring service providers to retain specified data they hold at a particular point in time 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 and law enforcement. Therein lie the grey areas as far as I am concerned.

I have worries about this being challenged. Again, this is rushed legislation. In my opinion, any rushed legislation, although not all of it, can obviously lead to flaws. As we would with any legislation, I would like to see an impact assessment after a finite period to see how it has it bedded in and whether it has been functional, practical and, above all else, fair.

The Minister for Justice said the urgency of the Bill was unavoidable given the need for legal certainty for communications companies and State agencies. Certainly, I agree with that. In addition to this urgent Bill, the Minister intends to bring forward a more comprehensive proposal later in the year to address wider reforms and a more transparent legal framework in this area. The Department of Justice said the proposed changes were without prejudice to the State's current appeal to the Supreme Court of a High Court ruling on the Act. It is a kind of like the saying, live horse and you will get grass.

I know it is urgent and I know the reasons, but why is it so urgent in the second last week of a term? Why is the Minister going to bring forward more robust legislation? She tells us she will, and this is not a personal criticism but a criticism of the system. Will we have a different legislative measure, will it be more robust and will it weed out the chaff from the oats as regards retention of data? They are being retained and are being used, and misused in many cases. I agree that where there is serious crime we must try to get a balance whereby we would retain data for that area. However, as I said, I often encourage people to go to Europe to get justice when they do not get it here. In this case, the Court of Justice of the European Union made a ruling and confirmed that EU law precludes the general and indiscriminate retention of traffic and location data relating to electronic communications to combat serious crime.

We passed the introduction of electronic tagging, for which I advocated for years as it would cut down on an enormous amount of Garda time. I do not know if it is being used at all. We are very slow here to embrace and engage with things that are done in other jurisdictions. We say we will and we have great aspirations, but the aspirations do not normally deliver, although it is great to believe in them.

I have concerns about this Bill. I have concerns about any rushed legislation and more about this. I have a very open mind on this but the real criticism is that, as we pointed out today on the Order of Business, five legislative measures are being rushed through without proper scrutiny and debate. It does not augur well for a democratic parliament.

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