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

I thank the Deputies for their comments. I will go through some of the points I made last night because I know not everyone was able to stay for my remarks.

On the timing, I think everyone will appreciate this has been an evolving situation. We had the initial legislation and various rulings. We then had a Bill that was drafted in 2017 and subject to pre-legislative scrutiny in 2018. There was then the Graham Dwyer case and in 2019, a decision was taken to pause bringing forward any legislation as the case was going through the courts. That decision was taken before I came into the Department, but I subsequently upheld it given that changes were taking place with various judgments. We had a judgment in October 2020 which had a different ruling. I appreciate the ruling in April did not change that but we were not to know that given that the previous ruling had changed. It was not until there was a case management hearing, prior to the Supreme Court ruling we will have in a matter of weeks, that it became definitive that it was not going to change. The moment we had that information, I brought a memorandum to Cabinet the following week and we progressed this as quickly as we could. It is easy to say this has been through at this time because it is the summer months. We have been working to the timelines we have had. As soon as we got that information and legal advice through the various hearings prior to upcoming Supreme Court ruling, I brought a memo to Cabinet the following week and have tried to work as quickly as I could.

As I stressed last night, this is not ideal for anyone in my Department. It takes people off their work on Bills we have planned and are in our schedule. This is not the way that any of us wants to operate. However, I have been assured at this stage that we have now sufficiently crystalised the legal issues to make progress on this and that is exactly what we are doing now.

The different amendments provide variations of sunset clauses. One is in 24 months, one in six months with a possible extension, one is six months and one is until 1 June 2023, or until a successor Act is in place, whichever comes first.

Perhaps I will bring the discussion back to why we are introducing the Bill. I am proposing it to deal with amendments to the principal Act, which are urgently required based on the rulings we have had. I am making these amendments on an emergency basis, as there is a need to ensure our data retention regime is consistent with the rulings of the Court of Justice. I respectfully disagree with the ruling because it does not allow us to retain data for criminal law enforcement purposes in a general way. The advice I have is that the legal issues, as I said, are now sufficient to bring forward this legislation. I am providing for general retention of data on national security grounds only, and then in parallel for a regime of preservation and production orders which may be used in appropriate cases for both national security and then criminal law enforcement purposes.

What the Bill will result in and what I have been asked for from the various different platforms, the providers and An Garda Síochána is certainty as to the data retention obligations on the providers in the community sector. They wrote to me a number of weeks ago through IBEC and various different ways that they had a doubt as to the validity of continued general and indiscriminate retention of data currently held and the need above else for legal certainty as to what their data retention obligations now are.

Separate from that, An Garda Síochána needs legal certainty to carry out its work in fighting crime. Separate again, everybody has a right to life and to personal safety. I am specifically thinking of victims in this instance. We are trying to strike a balance in, trying to respond to a court ruling, albeit I do not necessarily agree with it, but trying to provide the certainty that has been asked of us and to do so as quickly as possible while at the same time acknowledging that more work needs to be done given the commitment that it will be done at a later date.

If we insert a sunset clause of, for instance, six months, with all due respect we do not know what might happen in six months. I would like to think we will still be here, I will still be Minister for Justice, we will progress the general scheme and we will have engagement through the committee and at other forums. If that were not to happen, the Bill would essentially fall and we would end up in an even more complex legal situation than we have now where everything in the Bill would fall and we would have the uncertainty that the providers have asked us to remove. We are trying to provide that legal certainty.

We are also trying to ensure that they can invest in the types of systems that they need to keep up to speed with general data retention. My intention is that this legislation would be the very minimum base on which we would build a wider Bill. This legislation allows us to retain less data than we currently do with more safeguards in place. This would be the lowest that we can go because we should retain more data, particularly for criminal purposes. We need to work through that and we need to examine the ruling further. We need to see how much further we might go. This is pared back as far as I think it should ever be. We should always be working from this base.

The sunset clause provides uncertainty because if the Bill were to fall, we would find ourselves and difficulty. In addition, it does not provide certainty. Why would providers invest in a system that could potentially fall in six months or 24 months? As I said, this is the base that we should work from. I am committed to ensuring we have a very engaging process so that when we publish the general scheme later this year and go to the committee that we would engage with all stakeholders. We have been and are engaging with them, all be it less comprehensively than we would like to for such legislation. This is an emergency Bill to provide that certainty and clarity. Introducing a sunset clause would bring more uncertainty into the mix.

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