Mick Wallace (Wexford, Independent)
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13. To ask the Tánaiste and Minister for Justice and Equality the steps he has taken since receiving Mr. Justice John L. Murray’s review of the law on retention of and access to communications data report; if he has engaged with other Departments with regard to the findings of this review; and if he will make a statement on the matter. [44276/17]

Mick Wallace (Wexford, Independent)
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I appreciate the Department of Justice and Equality has drafted new proposed legislation to address the damning indictment of the State's surveillance of its citizens in the report from Mr. Justice Murray. What other steps has the Minister taken or intends to take with regard to the findings of the review? Will the Minister consider directing State agencies to discontinue accessing the data of Irish's pending the final resolution of issues pertaining to the Communications (Retention of Data) Act 2011 or any similar legislation which fails to apply compliant with EU data protection law and obligations under the European Convention on Human Rights?

Charles Flanagan (Laois, Fine Gael)
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The report of Mr. Justice Murray’s review of the law on retention of and access to communications data was received earlier this year. On receipt it was immediately forwarded to the Attorney General for consideration and advice. This was done in the context of the development of proposals to take account of changes in European law in this area.

While the review was initially commissioned to look at issues concerning access by statutory bodies to the communications data of journalists held by communications service providers, Mr. Justice Murray also undertook a very detailed analysis of the law in this area, including recent and significant judgments of the European Court of Justice. I published the report on 3 October and it is available on my Department's website. I thank Mr. Justice Murray for his work on the review which, I would note, he carried out pro bono. His report provides very valuable advice in this complex and dynamic area of law which is rapidly evolving.

As Deputy Wallace will be aware, on 3 October I also published the general scheme of a communications (retention of data) Bill. This proposed legislation responds to the judgment of the European Court of Justice and will update the current law in Ireland. In particular, I am proposing prior judicial authorisation in all cases where certain State agencies seek access to meta data in the context of investigations into serious crimes and safeguarding the security of the State.

Mick Wallace (Wexford, Independent)
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Mr. Justice Murray specifically stated that the State should consider suspending the accessing of the data of Irish citizens under the Communications (Retention of Data) Act. Digital Rights Ireland has also repeatedly warned about the possibility of convictions being overturned in legal action being taken against the State. In April 2014 the European Court of Justice utterly rejected the validity of the EU data retention directive.

This evolution of the law to which the Department has referred happened three years ago. The European Court of Justice decision was based on a case brought by Digital Rights Ireland that specifically questioned the constitutionality of Ireland's data retention law, the Communications Act 2011 that implemented the EU directive in question. Official communication from the Department of Justice and Equality has completely ignored this reality as to acknowledge the Digital Rights Ireland case would be to admit its failings for the past three years and beyond. We have a good bit to go on this and Digital Rights Ireland has done this State a great service. The Department should acknowledge that.

Charles Flanagan (Laois, Fine Gael)
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As the Deputy is aware, I have written to the justice committee in these Houses and asked it to undertake pre-legislative scrutiny of the general scheme of the communications (retention of data) Bill. I have also forwarded a copy of the Murray report to the committee and would be happy to engage with it in due course once the legislation completes Second Stage in this House and goes to Committee Stage.

I say for the benefit of the Deputy that Mr. Justice Murray specifically examined safeguards in the accessing of journalist traffic and location data so as to protect, as far as possible, the identity of journalist sources. I know we are running out of time but for the benefit of the Deputy and the record of the House, it is important to say I am of the view that judicial approval is desirable. I am proposing that the system of prior approval by a judge should apply in all cases, not just for journalists but for everybody. Mr. Justice Murray considered that High Court approval would be suitable where journalistic sources were in question and I am proposing that approval by a District Court judge would better facilitate the prior approval for all requests for access to communications data. We need a robust and effective additional safeguards in this area. I will ensure there is proper and adequate balance between having complete regard for the right of citizens and also having regard to the security of the State. I look forward to receiving the contribution of the justice committee and engaging with Deputy Wallace on the matter in the not-too-distant future.

Mick Wallace (Wexford, Independent)
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I look forward to it too.