Brendan Howlin (Wexford, Labour) | Oireachtas source

I move amendment No. 1:

In page 3, between lines 11 and 12, to insert the following:

“Duration of Act and review of Principal Act

2.(1) On the date that is 24 months from the passing of this Act, both this Act and the amendments to the Principal Act effected by this Act (whether or not such amendments have in the interim come into operation) shall stand repealed.

(2) The Minister for Justice (“the Minister”) shall, upon the passing of this Act, immediately commence a review of the principles, purpose, operation and effectiveness of the Principal Act, having regard in particular to relevant provisions of constitutional and European Union law.

(3) For the purposes of the review under subsection (2), the Minister— (a) may consult with such other persons or bodies as he or she considers appropriate, and

(b) shall consult with and seek the advice and recommendations of—

(i) the Data Protection Commission,

(ii) the Law Reform Commission,

(iii) the Irish Human Rights and Equality Commission, and

(iv) the Criminal Law Codification Advisory Committee, each of which shall give priority in its work programme to the provision to the Minister of such advice and recommendations.

(4) Having completed his or her review under subsection (2), the Minister— (a) shall prepare a report setting out the findings and conclusions consequent on the review, which report shall also set out the advice and recommendations of each of the bodies referred to in subsection (3)(b), and

(b) shall cause a copy of the report to be laid before each House of the Oireachtas as soon as practicable after it has been prepared. (5) This section comes into operation on the passing of this Act.”.

As Members will know, the background of this Bill is extraordinary. A situation has been brewing for seven years with regard to the legality of the 2011 Act which authorised the retention of data. That has been challenged in the European courts. The judgment of the court was reasonably expected. Notwithstanding that degree of preparation, the truth is that this Bill emerged in virtually complete form with very limited consultation and was presented to the Joint Committee on Justice with a request that there be no pre-legislative scrutiny. When that request was denied by all members of all political persuasions as being inappropriate, a rushed form of pre-legislative scrutiny was foisted upon us. That happened last Thursday. When I say "pre-legislative scrutiny", I mean that a draft of the Bill was circulated the previous night. We had a chance to read it, but not to have any consultation on it. Many witnesses who we invited to the pre-legislative scrutiny had very limited opportunity for any detailed consideration of the Bill. It is a bad way of making legislation and I think the Minister fully acknowledges that.

I said in my Second Stage contribution that I fully understand this is not easy legislation. It is a matter of balancing difficult, fundamental issues, including the rights of citizens to have their privacy respected in accordance with European law, and compliance with the European Convention on Human Rights and the European Charter of Individual Rights, all of which were cited in the European court judgment. Those rights to avoid mass surveillance of people's location and communications have to be balanced with the right of any state to prosecute wrongdoing and serious criminality. It is a difficult balance to strike. Those issues required extensive consultation that simply did not happen. I made the point that no data protection analysis was done and published. There was no detailed consultation with the Data Protection Commission. The commission got the heads of Bill eight days before our committee meeting and the detailed Bill 48 hours before the committee meeting. That is not right and is not in accordance with the expectations for proper scrutiny of a matter of such importance.

We have 45 minutes tonight to try to do something about this Bill. The consensus of the Opposition is that we fundamentally cannot do anything with the Bill other than to shorten its lifespan. The Minister and her officials have assured us that they recognise all the deficiencies that Members of the Opposition and of her own party have identified in the process that has led us to this point. Her saver is that she is conducting a comprehensive, root and branch review of this legislation, with proper consultation. That will take place over the next 12 months. We will have overarching legislation at that time.

With that in mind, amendment No. 1 is crafted to take account of the Minister's own timeline.

It is to give the Minister adequate time, which I believe it is a very generous amount of time, to bring in the amending legislation and have that legislation enacted. At the same time, the amendment I am suggesting sets out the process I believe would be appropriate. On the specifics, my amendment No. 1 proposes:

On the date that is 24 months from the passing of this Act, both this Act and the amendments to the Principal Act effected by this Act (whether or not such amendments have in the interim come into operation) shall stand repealed. [All the amendments envisaged in this legislation would fall 24 months hence.] The Minister for Justice (“the Minister”) shall, upon the passing of this Act, immediately commence a review of the principles, purpose, operation and effectiveness of the Principal Act, having regard in particular to relevant provisions of constitutional and European Union law.

For the purposes of the review that I want to mandate under law, the Minister "may consult with such other persons or bodies as he or she considers appropriate, and shall consult with and seek the advice and recommendations of the Data Protection Commission, the Law Reform Commission, the Irish Human Rights and Equality Commission, and the Criminal Law Codification Advisory Committee, each of which shall give priority in its work programme to the provision to the Minister of such advice and recommendations."

Having completed his or her review under this subsection, the Minister shall prepare a report setting out the findings and conclusions subsequent on the review, and shall also set out the advice and recommendations of each of the bodies referred to, and shall cause a copy of the report to be laid before each House of the Oireachtas as soon as practicable after it has been prepared. This section should come into operation on the passing of this Act.

In the timeframe we have we will not be able to fundamentally amend the Bill, so I will take the Minister at her word that this is a stopgap measure, pending a complete overhaul with proper consultation. I am giving the Minister the legislative mechanism to do that, and to give good faith to the House. I do not see there could be any reason for not accepting this amendment. It gives the Minister 24 months, which is double the time the Minister said that she would take to do it, and I do take the Minister at her word in that regard. The amendment sets out the proper consultative arrangements that should happen before the new legislation is actually presented. It will afford this House the opportunity to look at the review in the context of all the organisations I have set out in this amendment.

For those reasons, I hope that the Minister will accept my goodwill as I accept hers, and that the Minister will accept my good faith in this matter as I have accepted hers, that the Minister is genuinely regarding this as a stopgap measure and acknowledging all of the frailty of a non-consultation, particularly with the Data Protection Commission, and that the Minister will accept this amendment as the least she can do to assuage the genuine concerns of Members of this House.

See this speech in context