Catherine Connolly (Galway West, Independent) | Oireachtas source

Tá fadhbanna láidre agam maidir leis an mBille seo. Níl ár ndóthain ama againn chun é a phlé. Níl an cúlra tugtha ag an Aire, go háirid ó thaobh na tuarascála ón iar-bhreitheamh, Mr. Justice John L. Murray, a foilsíodh in 2017. Tá cuid den scéal anseo ach níl an scéal iomlán ann. Tá an scéal thar a bheith tromchúiseach. Tá spin agus propaganda á n-úsáid ag an Taoiseach agus an Tánaiste, ag cur in iúl go bhfuil muidne ar an taobh seo den Teach in aghaidh gach rud agus nach bhfuilimid sásta ár jab a dhéanamh ó thaobh reachtaíochta de. Is bréag amach is amach é sin. Is cur i gcéill atá ann. Tá sé an-deacair a bheith anseo ar an taobh seo den Teach ag éisteacht leis an Taoiseach agus an Tánaiste ag cur in iúl go bhfuil drogall orainne ár jab a dhéanamh.

As someone who practised law for some time, I find it difficult to stand here today, as I did last week, and listen to the spin coming from Government that we do not want to do our job and prefer to make statements and not deal with legislation. That is so far removed from the truth that I must put it on the record. It is appalling spin. We are faced with legislation that is extremely difficult for anyone considering it. I have been given a sample of the papers that Deputies are expected to go through for one item of legislation. I cannot recall how many papers we were given for this Bill. Perhaps Deputy Pringle can tell me. We may have been given 15 papers on it this week. I am not sure what the figure is.

I thank the Minister for her speech and the copy provided to us. I appreciate that the Minister is being put in a difficult position once again. I am not a member of the justice committee, so I am reliant on the documents that I get after each meeting. The Minister's speech today and the brief provided by the Department to the Oireachtas committee utterly failed to mention the background to this legislation. I will not mention the name of the man who is currently in prison and is waiting on the outcome of his appeal and the civil action. To me, it is not relevant. What is relevant here is that the 2011 Act is not valid because it is based on a directive that is not valid. The Government and the EU have known that for a long time. The directive was brought in back in 2006. We took another few years to introduce implementing legislation in 2011. In 2014, the directive was ruled by a court to be invalid in a case taken by Digital Rights Ireland. We have a legislation that is currently in force and which is based on a directive that has been found to be invalid. We have known that since 2014. In April 2017, Mr. Justice John L. Murray produced a very detailed report entitled the Review of the Law on the Retention of and Access to Communications Data. There are almost 200 pages in the overview. The review also contains a summary of the main recommendations and a postscript. Mr. Justice Murray was asked to examine the statutory framework of the Communications (Retention of Data) Act 2011. According to the review, the statutory framework of the 2011 Act "establishes a form of mass surveillance of virtually the entire population of the State". The 2011 framework, under which the Government is still operating and to which it is making patchy amendments this week, allows for the establishment of "a form of mass surveillance of virtually the entire population of the State involving the retention and storage of historic data, other than actual content". In the review, Mr. Justice Murray notes that the data retained under the legislative framework provide not just a snapshot of information in time, but a whole historical picture. He states: "The private information thus retained by Service Providers is not a snapshot of information concerning a particular communication or recent communications but constitutes an historical record of all communication over a lengthy period." Mr. Justice Murray also refers to the "anodyne" term "data", which means a lot more that what it seems to mean. In the review, points are made about a lack of sufficient safeguards and oversight. I do not have the time to go into all the detail. It is all set out in the review, which was published in April 2017. Significantly, nobody from the Department of Justice has even referenced the report or pointed out its findings and recommendations. In the postscript of the review, Mr. Justice Murray goes so far as stating:

As has been demonstrated in the course of reviewing the provisions of the Communications (Retention of Data) Act 2011, the Review has felt bound to conclude that many of the features of the data retention scheme established by the Act are precluded by EU law. Accordingly, it is recommended that consideration be given to the extent that, if at all, statutory bodies should, as a matter of policy, continue to access retained communications data [and so on].

I counted 43 paragraphs in the summary and main recommendations of the review. Most of them are recommendations highlighting what should be done. No reference has been made to them by the Department.

The EU judgment, the European Court of Human Rights and the UN have also highlighted serious issues with the mass retention of documents and the mass surveillance of people. The question must be asked as to why we are acting now in this rushed manner, as a result of the appeal that is pending. We know what the outcome of that will be, really. Why was action not taken before this? The Library and Research Service was to publish the Bill digest today but stated that it did not have enough time to do so. We utterly depend on the Bill digest if we are not members of the Oireachtas committee. We are also dependent on the committee to do its work. I have not seen a single Government backbencher, whether a member of the committee or not, come to the House to take the opportunity to discuss this very serious Bill. That is significant. I note that the Chairman of the Oireachtas Joint Committee on Justice wrote to the Minister on 30 June, setting out the serious concerns of the committee on the matter. The committee recommended that the legislation should include a sunset clause and that there be better consultation with stakeholders.

It also recommended that a certain category of citizens, such as journalists, should be given separate rights under the Bill. That is serious because that Murray report arose from GSOC taking information from journalists under the 2011 Act.

I have another case on my desk in respect of which the Court of Appeal finally saw sense regarding what had happened in the District Court and the High Court in the context of a warrant to take a journalist's phone. Right up to today, we have gardaí going into court seeking warrants to take phones without even outlining that the matters involved relate to journalists and their sources. Why am I saying that? I am saying it because we have good gardaí who we cannot do without but we have seen over and over that any system, including the Garda, which is an institution - just like the Houses of the Oireachtas is - needs oversight and built-in protection. That has been said repeatedly in different spheres and it has been said repeatedly by the Court of Justice of the European Union, the European Court of Human Rights and the UN bodies.

We are bringing in a Bill that is piecemeal and inadequate. The Data Protection Commission is highlighting its concerns, the most basic of which is that a data protective impact assessment be carried out. Has it been carried out? Nobody seems to know. As a result, we are making a presumption that it has not been. I do not have a copy of it. I do not know where it is and I am being asked to comment on it and vote in favour of this Bill. Then we have the ICCL under extreme pressure and highlighting its concerns, which are set out in a number of pages. Its main concerns, which it has kindly summarised for us, include that the Bill will permit rolling one-year renewable data retention, which in effect is indefinite retention. I realise that the Government amendments are improving the situation in that there was a two-year retention period. The Government is improving the position with just one year, but that is a rolling retention depending on the circumstances. The Bill fails to provide any definition of "national security". Complete discretion is provided to any Government to do what it wants under the heading of national security. The Bill fails to provide for the protection of journalist's sources, which is particularly significant given the background to the Murray report, as I mentioned, and the recent case that ended up in the Court of Appeal. The Bill fails to provide an adequate oversight mechanism and there is no judicial remedy for a breach of the powers in the Bill. The Bill attempts to retrospectively validate illegal data retention, which is contrary to EU law. The Bill also attempts to interfere with the independence of the court in data protection.

I could say much more but what I really want to get out are my concerns at the way this is being forced through the Dáil. The blame is being laid at the Opposition's door as opposed to the Government putting its hands up and admitting that it has known for a long time that the directive was invalidated way back in 2014. The Government also knows from Mr. Justice Murray's report about the serious issues that should have been looked at then and it knows from the case law, including: the Digital Rights Ireland case; the Tele2 Sverige case, which superseded that one; and the other cases that have been mentioned.

The Minister is here with an inherited situation. When you inherit a situation, however, at some point you have to say "Stop". We have to do this differently. We have had mass surveillance with no oversight or protection on the books since 2011 and we have had no safeguards on how that was retained, which country it was retained in and whether it has been retained in Ireland, England or non-EU countries. What about the destruction of the data? What happened when the two-year period was up? Nothing happened except one piece of oversight by a judge once per year, which was retrospective. Nothing else was built in and in this Bill we are building in some protection on a very limited basis. We are also bringing in extraordinary penalties for service providers. I would normally be critical of service providers, but in this situation they are being presented with a difficult transition period with no concept of what they are facing. I thank the Acting Chairman for indulging me. I went over time.

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