Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I thank colleagues for contributing to the debate. There is nobody to blame here. I am not trying to lay the blame on anyone, certainly not on the Joint Committee on Justice. We are introducing emergency legislation. I appreciate that there is concern and annoyance at the timeframe in which this has been brought forward, but emergency legislation often has to be brought forward quickly. Anyone who knows about the work I have done in the Department in setting out my justice plans for 2021 and 2022 knows that I have clear timelines and targets. Introducing emergency legislation means that teams have to be taken off legislation that is in the current plan in order to ensure that this can be done on time and to be able to respond, in most instances, to judicial rulings. This is not ideal for anybody and it is not the way I like to bring forward legislation, but this is emergency legislation responding to a Court of Justice ruling.

Some may say that this is something we could have predicted. If people look at the timelines, however, they will see that we had the general scheme of a Bill done in the period 2017 to 2019 and that this was put on hold because of the significant case to which we have all referred . This was before my time. When I came into the Department, I upheld the decision to wait until those rulings passed through. There have since been a number of judgments that have involved changes, the most recent of which was in October 2020. We had the ruling of the Court of Justice on 5 April. Subsequently, on 25 May, through a case management hearing, we received legal advice to say that the Supreme Court would most likely row in behind this and not change the ruling. Within a week, I had presented an outline of the Bill to the Cabinet. I have brought it through as quickly as possible. While Members may say that we could have responded to this quicker, it was important, because we had a number of different judgments involving changes, that we got this right. We have colleagues in France, Belgium, Denmark and other places where they have introduced legislation in recent years that has to be changed now. We have tried to do this right.

On the timing, I cannot dictate when the European courts and the Supreme Court will meet. We have to respond to the timelines we have and it is unfortunate that these timeframes are coming into sharp focus with the end of the Dáil session. It is important, for many reasons, that we introduce this legislation, not least that if we hold off until September we will potentially have two months where we have a certain section of the 2011 Act that will fall, while other parts of it will be extremely fragile. What we have been asked for, not just by An Garda Síochána but also by the service providers, which many colleagues have mentioned, is certainty. I was written to by IBEC and we were engaged by many providers to say that they need certainty in order that they know the data that they have on hold is being held legally and in compliance with legislation. Otherwise, there is a risk that they would just get rid of all of that data, which may have implications for An Garda Síochána in fighting crime and in security matters. There is a significant overlap there. As a result, we are doing this to make sure there is certainty, not just for An Garda Síochána but also for our colleagues, including those commercial entities, platforms and operators. We are not asking them to retain data that they do not already retain. We have made a point of using existing terms in the Act to try to make sure there is limited disruption in that regard.

A number of speakers referred to me engaging with my colleagues at EU level At our last meeting in Luxembourg, during a discussion at lunch, which was a separate but similar discussion, I raised this directly with Commissioner Didier Reynders and was supported by a number of colleagues who all feel that An Garda Síochána and the relevant police services should not have their hands tied behind their backs in fighting crime, and that we need to do more. However, the problem does not relate to measures being enacted at EU level; it is European court rulings that are having the impact here, as well as how the Charter of Fundamental Rights of the European Union is being interpreted, which is the biggest challenge. We will continue to have those discussions at EU level and I will continue to engage with colleagues.

On the Data Protection Commission, it is an obligation in respect of data protection impact assessments that the data controller would carry out the data impact assessment prior to introducing new data processing activities, which is provided for under section 84 of the Data Protection Act 2018. In this instance, the Minister for Justice is not the data controller under the Bill. An Garda Síochána and any other bodies that will be accessing data are data controllers and so they will carry out the necessary data protection impact assessments prior to the commencement of processing under the new provisions.

The law can be enacted but they will have to ensure they provide the data protection impact assessment before this is used or any system is put in place by An Garda Síochána. Separate to that, there is an obligation on my Department to consult the Data Protection Commission under section 84(12). We are doing that, the process is ongoing and we will continue to engage with the commission.

I appreciate the timing is not perfect for anybody but this is emergency legislation and we tried to make sure it was introduced in the best way possible. I confirm and commit that when the general scheme of the broader Bill is published later this year, there will be full engagement with the justice committee and colleagues. There will be full scrutiny and we will progress in a way that is perhaps not as fast as we have done in this instance.

"Security of the State" is not defined and we do not define it. It is not defined in the Offences against the State Acts. We leave it to the courts to decide. This has always been the case and that is why it is the case here.

On journalists, that will be covered in guidance by An Garda Síochána before this is commenced. There is a body of work to be done following on from the legislation and that will be put in place.

On the sunset clause, we have been asked for certainty and by introducing such a clause we are not providing that certainty, particularly for service providers or platforms and for members of An Garda Síochána. I respectfully propose that tomorrow we do not have a sunset clause amendment on the basis that it does the opposite, does not provide certainty and it is less likely those who need to invest in their systems will do so if there is a possibility that it might change.

I appreciate how quickly this has come through the House. It is not the way I like to work. Anytime we have brought legislation in this manner, it has been emergency legislation and generally because of a ruling from our courts. We have had that a number of times in recent weeks. It disrupts all our business and planned business but is important and necessary, particularly in terms of gardaí and their work on national security, making sure the measures are in place for them, insofar as it is possible following the ruling, to be able to apply this when fighting crime or dealing with particular cases.

This amendment allows for less data retention with greater oversight and oversight structures than we currently have in the 2011 Bill. The report Deputy Connolly mentioned from Judge Murray made a number of recommendations and we are implementing two significant ones in this, one on judicial authorisation and the other on notification of data subject. We are responding to that and to a number of other elements which have been proposed in recent years. I look forward to further debate with colleagues tomorrow and thank all colleagues for their contributions.

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