James Lawless (Kildare North, Fianna Fail) | Oireachtas source

I will speak to amendment No. 6, which has similarities with Deputy Howlin’s amendment and other amendments. It is worth recapping briefly how we got here, both procedurally and in terms of the bigger picture. The Joint Committee on Justice stands willing and able to do its duty and scrutinise legislation. It welcomes the opportunity to do its job in that regard, as it does with all other legislation. Last week was a good example of the committee rolling up its sleeves and getting stuck in. We declined to grant a waiver. We generally try to meet the Minister halfway, if not more, but on this occasion, we made the correct decision to stand our ground. The Bill could have benefited from much more time. It is worth reiterating, however, that we held three meetings, public and private, in one week at which we heard from a range of witnesses assembled at short notice. They helped cast a cold eye over this Bill.

It is also worth noting the committee has a significant interest in this area. Indeed, we pre-empted some of this debate with our own elective modules on data protection legislation, data retention and other topics that members explored and produced reports on in the past. It was only right and proper that we would conduct that scrutiny and we could have done much more.

It is also worth noting the Bill continued to evolve and change during the process, from when the heads were published prior to being referred to the joint committee to when they were submitted to the Data Protection Commissioner and, subsequently, brought to Cabinet and then finally produced a couple of days later. It not ideal to have a movable feast when we are trying to conduct scrutiny.

On the bigger picture of how we got here, it is worth reflecting that the Communications (Retention of Data) Act 2011 was, I am told, passed in a hurry. I had not been elected to this House at that time. The legislation was passed quickly and did not stand up to scrutiny when it was challenged. In 2014, the dreaded data retention directive, as it is sometimes called, was struck down by the European courts at the time, possibly because it did not get due attention in the House prior to being passed. That decision was on legislation at European level but our national legislation was then troubled. That led in due course to the 2019 challenge in the High Court, which went to Europe and then came back around again. A preliminary opinion was delivered about 12 months ago and then in April of this year, we had the final decision of the European Court of Justice on the ruling. Similar decisions were taken in France, Denmark and other jurisdictions in the past two or three years.

To echo Deputy Howlin and other Deputies, there was no surprise with this decision because it was coming down the track. I am disappointed that legislation had not been drafted or advanced or even a discussion started at a prior stage. It is important that the Department of Justice and the Joint Committee on Justice have a radar in operation scanning legislation, asking what is happening in Europe and the domestic courts, what legislation is expected and what challenges are coming through. It would not have taken too much to see that this was coming down the track. It is regrettable that we ended up having to consider this legislation in a hurry in the dying weeks of the summer term.

We cannot pretend that this Bill strengthens the hand of the Garda because it does the opposite. It weakens the hand of the Garda and does not do it any good whatsoever. We heard that from no less than the assistant Garda Commissioner when he came before our committee. That is very important. It is a European ruling. We are bound by that and compelled to honour it. However, let us be straight with the people and say what it does and does not do. It does not help the Garda and actually does the opposite. It impairs the detection and investigation of crime, which is regrettable.

At European level, the fact that national security was allowed to be carved out as an exception whereas the detection and investigation of serious crime was not considered to be acceptable is a pity. The joint committee discussed this issue. As I said, we are constrained in what we have to do, but how we choose to do it and the detail of that lie within the powers of this House.

It has been said in the course of this debate that it is not standard practice to draft legislation until case law is settled. If that is so, the case law is not yet settled. The Supreme Court has yet to pass judgment on this matter and will do so later in the year. I ask the Minister and her Department to reconsider that policy and if it is a wider Government policy, which I am not if it is, I question it.

In any event, we have had many issues emerge over the course of the debate. I thank the witnesses who appeared before the joint committee, namely, officials from the Office of the Data Protection Commissioner; the assistant Garda Commissioner; Ronan Lupton, SC; Dr. McIntyre of Digital Rights Ireland; and others who contributed in writing and in other ways to our deliberations. It was extremely helpful. In that short week, the committee uncovered a number issues, which probably raised more questions than answers.

I understand we are bound by the decision of the European Court of Justice. I understand the Government has to act and sometimes does not have the luxury of time. However, in all the circumstances, the sunset clause makes sense. I was perhaps less generous than Deputy Howlin. I put a date of 23 June 2023 in my amendment, while Deputy Howlin’s amendment provides for a sunset clause of two years. He has been on the inside and I have not, and perhaps his proposal makes more sense. I ask the Minister to consider that because-----

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