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

Again, it is not providing the certainty we have been asked for. If you look at any of the letters that have been presented to me or the engagement we have had with the various different service providers, they have asked for certainty. Putting sunset clauses into legislation could lead to laws that will fall if new legislation is not put in by that date. This is not providing certainty. There is every intention to progress new legislation. I would not like us to pare back even further and have less data that An Garda Síochána can access. At the moment, it is unable to access it and after this legislation is passed, it will only be able to access travel and location data for national security purposes. General data will not be retained when it comes to fighting crime or to other types of crime. This is the minimum we should have for An Garda Síochána but we have also introduced additional safeguards in this legislation so I do not think it is the case that we would pare back those safeguards in any new legislation. What we have here is the basis to work and build off and that is what I would like to see happen. It is about providing certainty and allowing the providers to invest in the infrastructure they need knowing that they will always be required to retain a certain level of data. That is not going to change but there might be other elements that will change and there are other areas that we do have to look at.

In terms of the security of the State, it is not something that has been spelt out in any other legislation. This is a common law jurisdiction. Our judges interpret the law in our jurisdiction. We have to have regard to the Constitution, EU law and other relevant legal principles such as those based on the European Convention on Human Rights. It has been analysed in that context and legislation looking at legal precedents and judicial findings so it is up to the judges to interpret what national security is. The minute you put it in writing and specify it, if something else arises that is not written down, you find yourself stuck in that it does not come under that remit. I will give an indication in general terms that considerations for any kind of an assessment may include the terrorist threat level in the jurisdiction on the island bearing in mind the operational focus on preventing and disrupting attacks in Northern Ireland; the terrorist threat level in the wider neighbourhood, including Great Britain and the EU, as informed by assessments carried out by UK agencies and Europol; hostile state activity directed at Ireland and our interests overseas; cyberthreats to the State, including our strategic infrastructure, whether they emanate from criminal groups or otherwise; the threat posed by right-wing extremist groups who seek to challenge the authority of the State; and the potentially disabling effect on society of organised crime. That is all based on rulings and various different precedents that have taken place but the minute you put that down and something else happens that could be a threat it is not included and you are removing it from the overall list. It is not something we do on the Statute Book and I do not propose to move away from that, particularly in emergency legislation.

Regarding the issue of serious offences, again this is a problem with bringing forward emergency legislation. I appreciate that where you are changing offences relating to An Garda Síochána, it does require a review of offences for other agencies for consistency so I appreciate where the Deputy is coming from on this. What we are trying to replicate is what is currently there but acknowledging that the recent ruling essentially says that general data does not impact on somebody's privacy in the same way as location and travel data does. As we develop the wider legislation I would like to develop this further because it is a wider piece of work that needs to be done to make sure it lines up with other different types of offences. Acknowledging some of the comments the Deputy made in pre-legislative scrutiny where an inspector would be involved, we have now changed that to the level of superintendent. Again, this is an area where I do not disagree with the Deputy but I think there is work to be done to look at other areas where it may impact and which would have to be brought in line. That is something we could do in the wider legislation if that is okay.

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