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

I engaged with the Minister on the detail of this in recent days. I thank him for those conversations. I have engaged with many others, including people whose views I highly rate, such as Johnny Ryan of the ICCL and Max Schrems, to whom reference was made. We had the pleasure of hosting Max at the Oireachtas Joint Committee on Justice on two occasions. He was here in person for one meeting and he participated in another online. He corresponded with me during the week regarding this amendment. There is general alarm.

Before I get into the detail of the amendment, I note that, unfortunately, there has been a pattern in recent years of data protection legislation or amendments affecting the area coming through quickly. That is sometimes forced upon us by external factors such as decisions within Europe or of the Judiciary, but at other times it emanates from within these buildings, if not these Houses, necessarily.

The Communications (Retention of Data) (Amendment) Act 2022 was problematic when it came before us approximately one year ago. I noticed yesterday that the Minister went to the High Court and got a freezing order on a substantial block of data for reasons of national security. I understand that is the only basis on which the Minister can freeze data. The significant issue at the heart of that Act is that it would not be possible for such an order to be granted in the areas of organised or serious crime. If the Graham Dwyer scenario were to unfold on a mountain tonight, would he even be apprehended? For whatever bizarre reason, the carve-outs to retain data that are contained within the data retention directive do not apply to organised or serious crime, but only to national security. Of course, national security is important. Sometimes we are naive in that regard. That said, organised and serious crime are real and present ongoing dangers that are outside the scope of any freezing order from the High Court or elsewhere. That is regrettable.

Turning to the detail of the Bill, I have been lobbied on it. I have communicated with many people and listened to their concerns. The central concern is that people would be gagged, the platforms and other companies would probably benefit from it and there may be a degree of cover and an undesirable lack of transparency in the context of certain inquiries and investigations. I hear those concerns. Mr. Schrems made a point that I very much took on board. He was concerned that if this amendment had been in force when he came before the justice committee, he would have been prevented from speaking. That would be contrary to natural justice, how we organise ourselves in these Houses and the duty of every committee to get to the nub of a problem and hear full and unfiltered testimony. If Mr. Schrems were to be correct in this regard, I would be extremely concerned. In addition, it has been suggested, possibly by Johnny Ryan - I have received various items of correspondence on the matter - that the amendment, as drafted, would allow members of the public to speak of a complaint or investigation when they are permitted by law anyway.

Reference has been made to Article 40.6 1° of the Constitution, which relates to freedom of expression. Without being alarmist, the Constitution, of which all of us in these Houses are very proud, or certainly ought to be, was drafted at a time when the clouds of totalitarianism were descending upon Europe. It was and is very strong on civic and political rights. Without being alarmist, we are in an age with social media companies and platforms and when the power to use and abuse data presents a real threat to democracy and society. We need to be mindful of that at all times. If we get these decisions wrong, they can have far-reaching and unintended consequences.

That said, I welcome the engagement I have had with the Minister of State, Deputy Browne. I thank him for it. As on all occasions when I interact with him, he has been helpful and informative. The Minister put it to me that there are a number of protections contained within this legislation. The position may not be as chronic as has been suggested. I would welcome the Minister of State making that point formally at the end of the debate, perhaps. I do not think it is envisaged that a scenario where Mr. Schrems or others would not be able to take part in a committee meeting is possible or plausible under this legislation. The scenarios where information can be held back are specific. The reason must be given to accompany them. That aura of confidentiality ends when the protected function ends. When the investigation is over, the data is then out there. If an investigation requires confidentiality to allow it to take place and come to a conclusion, that is a temporary and limited protection and it is done for good reason, I am told. If the Minister of State says that, I believe him, to put it simply. I look forward to his remarks in respect of how this issue will be managed. Legislation pertaining to data protection, data retention and similar areas has often been put through on the fly, sometimes at the eleventh hour or without adequate consideration, be it at a committee or elsewhere. That is a pattern I would prefer to see halted and revisited. That may be something we need to consider before the next amendment, Bill or change in this area.

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