Thomas Pringle (Donegal, Independent) | Oireachtas source

I am sharing time with Deputy Connolly. I thank the Acting Chairman for the opportunity to contribute to this debate. The Joint Committee on Justice, of which I am a member, conducted pre-legislative scrutiny on this legislation last Thursday. Unfortunately, due to the ridiculously short timeline we were forced to work to, this scrutiny had no influence whatsoever on the legislation and the whole exercise was sadly and, quite frankly, pointless, even to the extent that during pre-legislative scrutiny the deadline was due to pass for the tabling of amendments to the Bill. We had to adjourn the meeting to get that deadline waived in order that the meeting could continue, even though, apparently, the Bill cannot be published until the pre-legislative scrutiny is placed before the Minister, despite her not having to take any account of it. That was the kind of fiasco of a process we went through last week. It is sad because this is a Bill that could have done with a lot of pre-legislative scrutiny and a lot of taking on board of matters regarding it. I will deal with that later in my contribution.

I will point out that concerns regarding the rushed process of progressing this legislation came up time and time again during the committee meeting. Members and witnesses present agreed that the rushed process and lack of mandatory consultation will lead to a Bill that is vulnerable to legal challenges. When I raised concerns in the House last week about the consequences of rushing through legislation, I was wrongfully interrupted by the Chair at the time. However, let me make clear that I am not the only one who has spoken out against the ridiculous rushing through of legislation. The Bill Digest produced by the Oireachtas Library and Research Service states that due to the timeframe between publication of recent Bills and the Second Stage debate, it is not possible for it to consider all relevant issues. We have countless stakeholders telling us the exact same thing, yet we are supposed to give this Bill proper consideration and come to the House to rubber-stamp it for the Minister.

Last week, the Irish Council for Civil Liberties published a graph showing the number of Bills enacted per month. It showed how the number of Bills passed by the Oireachtas increased shockingly before the recess, with this year being the worst yet. Some 19 Bills will be passed this month. The average for every month other than this is approximately two Bills. That shows what the Government's attitude is to the recess, and to proper legislative oversight and consideration. It may be that officials in the Department use the summer recess as a false deadline and think they have to get Bills finished by the recess, and rushed through and so on, but that is wrong. It means we do not get proper scrutiny of legislation, which can be seen today. A perfect example will be seen in the House tomorrow, when we will rush five Bills through Committee Stage in one day. Ramming through legislation like this means that oversight suffers and unexamined legislation is allowed to pass without proper scrutiny. Yet, we are told in the Chamber that we are not allowed to hold the Government to account over this.

On this particular Bill, I strongly believe a sunset clause should have been included, given this legislation is supposed to be a temporary measure. I am disappointed to see it has not been included, despite multiple calls to do so. I tabled an amendment on a sunset clause, along with many other Members, which is vitally important in the context of being constantly told during pre-legislative scrutiny that this Bill will be superseded by the reviewed Bill that will come later on in the year. However, there is no sunset clause or anything like it in the Bill. It makes you wonder whether this Bill will be superseded at all.

I will again voice my concerns regarding the fact there is no definition for the "security of the State" included in this legislation either, despite the fact the proposed new section 3A provides that the Minister may apply to a designated High Court judge for an order to retain data, where satisfied that "a serious and genuine, present or foreseeable threat to the security of the State" exists. The Irish Council for Civil Liberties and Digital Rights Ireland have also highlighted this. It was said during pre-legislative scrutiny that this is not a requirement of law, but the European Court of Justice stated that legislation "must indicate in what circumstances and under which conditions a measure providing for the processing of such data may be adopted, thereby ensuring that the interference is limited to what is strictly necessary". The European Court of Human Rights, in a case involving Russia that is also relevant to Ireland, stated that where there is no definition of "security of the State", the authorities are left "an almost unlimited [degree of] discretion in determining which events or acts constitute such a threat and whether the threat was serious enough to justify secret surveillance. ... [thereby creating] possibilities for abuse." It was said before the committee last week that the Department would decide what "security of the State" is. Therein lies the crux of the problem. If it is down to the Department or Minister to decide what constitutes security of the State, that is a very arbitrary thing that will be at the whim of a Minister. We should not have that in legislation that is so important.

The proposed new section 3B goes on to provide that service providers must retain Internet source data for one year, or as prescribed by the Minister, from the date of first processing, where the Minister considers it necessary and proportionate for the purposes of safeguarding the security of the State. It is very important to understand who determines what is a threat to the security of the State. This cannot be left to interpretation and, despite continuously raising this, I am very disappointed to see that it has not been included in the final legislation.

On top of this, it seems that this legislation could actually breach current data protection law, which requires a data protection impact assessment to be carried out where "a type of processing, and in particular a type of processing using new technology, is likely to result in a high risk to the rights and freedoms of individuals". According to a statement from the Data Protection Commission submitted to the committee during pre-legislative scrutiny, "In light of the high risks to the rights and freedoms of data subjects inherent in the processing envisaged in the General Scheme, the DPC is of the view that the Department should have and should conduct a Data Protection Impact Assessment in relation to the processing and provisions proposed". It is clear that there has not been adequate time for consultation and proper impact assessments to be conducted, which has led to this incredibly weak legislation.

Section 5 of the Bill provides certain members of the Garda Síochána, the Defence Forces, the Revenue Commissioners and the Competition and Consumer Protection Commission with the powers to access to user data retained by service providers without any judicial or independent oversight or review. This seriously needs to be addressed going forward. Without sufficient safeguards, there is potential for possible abuse. We cannot allow that to happen. The issue was raised by representatives of Digital Rights Ireland at a meeting of the Oireachtas Joint Committee on Justice, demonstrating why committee discussions are so important and should be given proper and full consideration when finalising legislation. It is clearly the Government's view that scrutiny slows the legislative process but really, it is what creates strong legislation. We should prioritise passing legislation that is strong and fit for purpose, not legislation such as the Bill that is before us. I absolutely oppose the legislation in its current form. It is messy, incomplete and legally questionable. It is important to note that Government approval for the drafting of the Bill was only given a month ago, despite previous indications that legislation in the area was problematic. Regardless of this, the legislation was then shockingly dumped on the committee only a fortnight before recess.

The Bill in no way achieves what it aims to do. The rushed progression of the legislation means that citizens' rights are not being properly considered. I strongly urge the Government to delay this legislation until after the recess in order to let us consider it properly. The legislation is far too important to be rushed through within days. I also urge the Government to ensure that the same mistake is not made with the proposed revision of the Communications (Retention of Data) Act 2011 later this year. Legislation should include wider and more thorough engagement with stakeholders than was allowed for this legislation. We must ensure that finalised legislation is robust and can withstand legal challenges. In doing so, we can provide a good service to all the citizens of Ireland.

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