Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Amendments Nos. 4 to 6, inclusive, are logical alternatives to amendment No. 1. Amendments Nos. 1 and 4 to 6, inclusive, are related and will be discussed together.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 1:

In page 3, between lines 11 and 12, to insert the following:

“Duration of Act and review of Principal Act

2.(1) On the date that is 24 months from the passing of this Act, both this Act and the amendments to the Principal Act effected by this Act (whether or not such amendments have in the interim come into operation) shall stand repealed.

(2) The Minister for Justice (“the Minister”) shall, upon the passing of this Act, immediately commence a review of the principles, purpose, operation and effectiveness of the Principal Act, having regard in particular to relevant provisions of constitutional and European Union law.

(3) For the purposes of the review under subsection (2), the Minister— (a) may consult with such other persons or bodies as he or she considers appropriate, and

(b) shall consult with and seek the advice and recommendations of—

(i) the Data Protection Commission,

(ii) the Law Reform Commission,

(iii) the Irish Human Rights and Equality Commission, and

(iv) the Criminal Law Codification Advisory Committee, each of which shall give priority in its work programme to the provision to the Minister of such advice and recommendations.

(4) Having completed his or her review under subsection (2), the Minister— (a) shall prepare a report setting out the findings and conclusions consequent on the review, which report shall also set out the advice and recommendations of each of the bodies referred to in subsection (3)(b), and

(b) shall cause a copy of the report to be laid before each House of the Oireachtas as soon as practicable after it has been prepared. (5) This section comes into operation on the passing of this Act.”.

As Members will know, the background of this Bill is extraordinary. A situation has been brewing for seven years with regard to the legality of the 2011 Act which authorised the retention of data. That has been challenged in the European courts. The judgment of the court was reasonably expected. Notwithstanding that degree of preparation, the truth is that this Bill emerged in virtually complete form with very limited consultation and was presented to the Joint Committee on Justice with a request that there be no pre-legislative scrutiny. When that request was denied by all members of all political persuasions as being inappropriate, a rushed form of pre-legislative scrutiny was foisted upon us. That happened last Thursday. When I say "pre-legislative scrutiny", I mean that a draft of the Bill was circulated the previous night. We had a chance to read it, but not to have any consultation on it. Many witnesses who we invited to the pre-legislative scrutiny had very limited opportunity for any detailed consideration of the Bill. It is a bad way of making legislation and I think the Minister fully acknowledges that.

I said in my Second Stage contribution that I fully understand this is not easy legislation. It is a matter of balancing difficult, fundamental issues, including the rights of citizens to have their privacy respected in accordance with European law, and compliance with the European Convention on Human Rights and the European Charter of Individual Rights, all of which were cited in the European court judgment. Those rights to avoid mass surveillance of people's location and communications have to be balanced with the right of any state to prosecute wrongdoing and serious criminality. It is a difficult balance to strike. Those issues required extensive consultation that simply did not happen. I made the point that no data protection analysis was done and published. There was no detailed consultation with the Data Protection Commission. The commission got the heads of Bill eight days before our committee meeting and the detailed Bill 48 hours before the committee meeting. That is not right and is not in accordance with the expectations for proper scrutiny of a matter of such importance.

We have 45 minutes tonight to try to do something about this Bill. The consensus of the Opposition is that we fundamentally cannot do anything with the Bill other than to shorten its lifespan. The Minister and her officials have assured us that they recognise all the deficiencies that Members of the Opposition and of her own party have identified in the process that has led us to this point. Her saver is that she is conducting a comprehensive, root and branch review of this legislation, with proper consultation. That will take place over the next 12 months. We will have overarching legislation at that time.

With that in mind, amendment No. 1 is crafted to take account of the Minister's own timeline.

It is to give the Minister adequate time, which I believe it is a very generous amount of time, to bring in the amending legislation and have that legislation enacted. At the same time, the amendment I am suggesting sets out the process I believe would be appropriate. On the specifics, my amendment No. 1 proposes:

On the date that is 24 months from the passing of this Act, both this Act and the amendments to the Principal Act effected by this Act (whether or not such amendments have in the interim come into operation) shall stand repealed. [All the amendments envisaged in this legislation would fall 24 months hence.] The Minister for Justice (“the Minister”) shall, upon the passing of this Act, immediately commence a review of the principles, purpose, operation and effectiveness of the Principal Act, having regard in particular to relevant provisions of constitutional and European Union law.

For the purposes of the review that I want to mandate under law, the Minister "may consult with such other persons or bodies as he or she considers appropriate, and shall consult with and seek the advice and recommendations of the Data Protection Commission, the Law Reform Commission, the Irish Human Rights and Equality Commission, and the Criminal Law Codification Advisory Committee, each of which shall give priority in its work programme to the provision to the Minister of such advice and recommendations."

Having completed his or her review under this subsection, the Minister shall prepare a report setting out the findings and conclusions subsequent on the review, and shall also set out the advice and recommendations of each of the bodies referred to, and shall cause a copy of the report to be laid before each House of the Oireachtas as soon as practicable after it has been prepared. This section should come into operation on the passing of this Act.

In the timeframe we have we will not be able to fundamentally amend the Bill, so I will take the Minister at her word that this is a stopgap measure, pending a complete overhaul with proper consultation. I am giving the Minister the legislative mechanism to do that, and to give good faith to the House. I do not see there could be any reason for not accepting this amendment. It gives the Minister 24 months, which is double the time the Minister said that she would take to do it, and I do take the Minister at her word in that regard. The amendment sets out the proper consultative arrangements that should happen before the new legislation is actually presented. It will afford this House the opportunity to look at the review in the context of all the organisations I have set out in this amendment.

For those reasons, I hope that the Minister will accept my goodwill as I accept hers, and that the Minister will accept my good faith in this matter as I have accepted hers, that the Minister is genuinely regarding this as a stopgap measure and acknowledging all of the frailty of a non-consultation, particularly with the Data Protection Commission, and that the Minister will accept this amendment as the least she can do to assuage the genuine concerns of Members of this House.

Catherine Murphy (Kildare North, Social Democrats)
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I, too, have tabled an amendment, as have other Members, on including a sunset clause. It just would not have proved possible to put in a series of amendments in the time that was allowed. During the Second Stage debate, the Minister said that she intended to bring the general scheme forward to the far end of this year. I believe that Deputy Howlin's amendment is very generous with the amount of time it provides. It is not just the process that was wrong here. Consultation is not just sending out the Bill the night before or the day before. Consultation must be more meaningful than that. The substance of the Bill is hugely problematic. Not only was this House bypassed, the Data Protection Commission was not consulted in the way it should have been consulted on and involved in the development of the legislation.

Emergencies are things that happen where one cannot predict they are going to happen. This, however, was absolutely predictable. It is not just this Government. This set of issues was also with the last Government. We have known for a considerable period of time that Ireland's approach to data protection was not in line with European Union law. For this reason, I suspect that Deputy Howlin will be pressing his amendment. If not, I am sure that one of the rest of us will be pressing the amendment if the Minister does not take this. It would be very regrettable if the Minister did not take this amendment. There is goodwill here. This is no way to provide for legislation that infringes on people's rights. The idea that we could not even have a sunset clause, which would put a time limit on that, is an appalling way to deal with this legislation. It would, I believe, show bad faith.

Thomas Pringle (Donegal, Independent)
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I thank the Leas-Cheann Comhairle for the opportunity to speak to the amendment. It is important. I note there are a number of amendments from other Members that propose to generally achieve the same outcome. I may have a bit of a problem with Deputy Howlin's amendment No. 1 in that I believe the timescale is far too long. This may be because I do not have the benefit of being in the Government and I wonder if some timescales seem to be in a different world on the Government side where one year means two years. I would have a real problem with that going out to two years. Even if the Minister was to accept this amendment I would have a real problem with that.

My amendment No. 11 proposes that the Act, "will cease to be in operation 6 months from the date of the first order ...". Continuously in the committee and in the debate yesterday on Second Stage the Minister has said that the Bill is almost ready to go. To my mind, that is not two years from now. It would be very soon. For something that is so serious that will have such serious implications for our own citizens, and all citizens, we need to be very careful about what we do in relation to it.

On Second Stage yesterday the Minister mentioned that she would not agree with these amendments because it would create uncertainty that a sunset clause would bring. I fail to see how a sunset clause could bring uncertainty. While I would take the Minister's bona fides on this, I believe the uncertainty here is that, with the best will in the world and no matter what the Minister says, I doubt very much that this Bill will come through before the end of the year. I doubt very much that will happen. Deputy Howlin's timeframe on this is probably a bit more realistic. This means that a lot of harm and a lot of damage can be done in relation to this.

It would actually create certainty if people were to know that there is a fixed sunset clause in this legislation, and that the legislation will cease to be. This will encourage people to gear up to realise that what is in the Bill may not be the final provisions but that we must try to achieve it anyway to be sure. From the little consultation that we did have it was clear that the mobile phone companies cannot comply with this legislation anyway for up to two years after it has passed. Even with this legislation, the mobile phone companies will be forced to comply with something that they have said upfront that they cannot comply with. Even if we did not care about the citizens of Ireland, and unfortunately I believe the Department of Justice may not care about them as it cares about the mobile phone companies - and we must look at how they do their business - the mobile phone companies cannot achieve this even if they wanted to. They cannot comply with it. It is very worrying that this is difficult to be complied with. We must take account of this.

The only way for it to be complied with, and for us to provide any certainty for anybody involved in this, is by having a sunset clause. While this would put pressure on the Minister and her Department, and I am aware that the Department is busy, surely this is the kind of stuff that should be providing pressure. The Bill is not in compliance with anything. It is based on legislation that a directive from the European Commission ruled out of order some seven or ten years ago. We continue on with this legislation even in spite of that. This is wrong. Even if we agree and believe the Court of Justice was wrong to bring down this legislation, it has done so and that is the reality.

I do not agree with it, but we have signed up to be under the control of the European courts. We are great Europeans so we should recognise what has happened and respect the court and the judgments it makes. For this reason, we need to have a timeframe for legal certainty and the security of the legislation.

Pa Daly (Kerry, Sinn Fein)
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I am conscious of the time that is left. I concur with what has been said in support of these amendments, given what the Department and advisers said in our meetings, the rushed nature of the Bill and the facts that many years passed during which it was known that something would have to be done in relation to the case before the European courts and that no real legislation has been prepared. The various stakeholders I have spoken to have all agreed that there is a lack of proportionality in this. The Department’s advisers stated there would have to be more legislation before the House in the autumn. Tiger kidnappings and child abduction cases were mentioned. In reality, this Bill goes further than that. I agree with the amendments.

James Lawless (Kildare North, Fianna Fail)
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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-----

Brendan Howlin (Wexford, Labour)
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There is less reason to object to mine.

James Lawless (Kildare North, Fianna Fail)
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Perhaps I will have that opportunity in time. It would provide some reassurance and comfort to all those involved in the scrutiny if this were to be re-examined. It could pass muster for now to get it over the line, as it were, given all the circumstances if we were given comfort was the legislation will be revisited. As we have been told, there will be a more comprehensive Bill, on which we will perform due scrutiny and engage with stakeholders engage. I am sure the others in this House and many outside it would be interested in that. That should happen. The sunset clause makes a lot of sense in all the circumstances. I ask the Minister to strongly consider it.

Helen McEntee (Meath East, Fine Gael)
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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.

Brendan Howlin (Wexford, Labour)
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I do not understand the Minister's argument. How can putting in a sunset clause introduce this level of uncertainty if she has announced that the Bill is finite and that she intends to introduce overarching legislation or is that a fantasy? Does she intend within the next 12 months to bring in replacement legislation, as she told us? If that is the case, this is a time-constrained Bill in any event. We are simply trying to formalise that in law. Otherwise, are we to seriously believe the Minister intends to bring in overarching legislation? Of course, there is uncertainty about this legislation because it is emergency legislation and it is to be overtaken by a more robust comprehensive Bill. The Minister has said the scheme of the Bill must be produced by the end of this year.

I want to make reference to the 24 months. I gave it much consideration and took legal advice from a variety of sources. My initial draft provided for 18 months but I wanted to be realistic. If the Minister needs to the end of year to produce the heads of a Bill, we need to have the formal and structured process of discussion and dialogue that I set out in the Bill with all these bodies. They need to take evidence and they need to make a presentation. That needs to be compiled in report to be presented to us and we need time to have proper scrutiny, bring in witnesses and so on. It is reasonable that it might take longer than a year or even 18 months.

For the avoidance of the cliff edge in order that we are not operating with a gun to our head, I put a 24-month time limit on that and, therefore, there could be no excuse for not doing it within that timeline. If the heads of the Bill are advanced, as the Minister has said, we could have the heads of a Bill followed by a draft Bill by early next year. We can have the consultative process that we set out and we can have hearings and a definitive Bill, hopefully by the end of next year. A 24-month timeline where the shutters simply come down and this is expunged from the Statute Book is a most reasonable approach in my judgment.

I want to make two other brief points. We need consolidation anyway because this is difficult legislation to read in conjunction with the 2011 Act. It is difficult for providers or citizens to know what their privacy rights are or even for An Garda Síochána to have certainly about it. A consolidated Bill should be a priority for the Minister. She should be able to tell us definitively that this will all be done and dusted within 24 months and that we will have a robust consolidated Bill having fully consulted with all interested parties.

My final comment relates to process. The Minister has compared this to an evolving platform as different judgments come in and so on. However, they are all in-house. The Department of Justice shows disregard for this place. When it has done all its consideration and all these time-lined analyses a week before it expects the Bill to be passed into law and sent to the President for signature, it thinks it is good enough to send to us. That is not how democracy works. That is not how important legislation should be formulated. Even when it was in its gestation, we should have had the discussions with the Minister and her officials at the Joint Committee on Justice. That is something the members of that committee have learned. I know the Chairman has been extraordinarily strong on this.

It is simply not good enough to suggest that because these issues are complicated and evolving the Department will keep it in-house. It is then presented to us as unamendable law because the Department has given the final word on it and it does not have time. It then gives us 45 minutes to do our democratic thing down in Dáil Éireann. That is just not a proper way of dealing with it. I hope this will be the last time we have that approach unless there is a true emergency where something completely unexpected surfaces and needs to be dealt with.

If the Minister accepts she will replace this legislation within 18 months or so, I ask her as an act of good faith to accept this amendment. It gives her ample time to have all the consultation. She should ensure she gives these Houses ample time to debate her legislation and then we can be confident that what we are doing now, which is an unsatisfactory job, is at least a time-lined unsatisfactory job that will cease to exist 24 months hence.

Thomas Pringle (Donegal, Independent)
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I do not agree with Minister's explanation for why she cannot include this timeline. I accept the timeline I set was too tight, which is fair enough. Then let us have a longer timeline but we need to have a timeline. It does not make any sense not to have it. The Minister's rationale for not having it is completely wrong. She insists on saying that she does not agree with the court, which is fair enough. However, if she did not agree with the Supreme Court in Ireland, she would need to amend the law. This is the supreme court that our Supreme Court answers to whether we like it or not. The Minister cannot just say she does not agree with this and away we go.

That is a problem. There is a lot that is wrong with this legislation. The Minister said she does not agree with the ECJ but the European Court of Human Rights is another body that has serious problems with what is in this legislation. An amendment of mine - amendment No. 2 - involves the definition of the security of the State. It is not defined in this legislation. I know the Minister's excuse will be that it is not defined in other legislation so the Government is not defining it here as well but it has to be defined somewhere. The European Court of Human Rights holds that it does have to be defined. Speaking about Russian law, the court said:

Nor did the law give any indication of the circumstances under which communications could be intercepted on account of events or activities endangering Russia's national, military, economic or ecological security. Instead, it left the authorities an almost unlimited discretion in determining which events or acts constituted such a threat and whether the threat was serious enough to justify secret surveillance. This created possibilities for abuse.

The European Court of Human Rights, not the ECJ, is saying this so even if you do not agree with the ECJ, we have been members of the European Court of Human Rights since its foundation in 1948. We are doing stuff here that is wrong and this legislation is compounding that. The Minister is not going to put in a sunset clause, which is completely wrong.

Pa Daly (Kerry, Sinn Fein)
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I take issue with one phrase used by the Minister when she replied to the amendment. It was that this is a pared-back piece of legislation. I do not agree with her that it is pared back. I mentioned proportionality earlier on. Under the 2011 Act, a request could be made in the case of a serious offence. This has not been pared back. Rather it has been expanded to "an offence". I am worried whether under the requirement in this legislation where a superintendent believes that data related to a person whom the member of An Garda Síochána suspects on reasonable grounds of having committed an offence relates to the protesters we see outside here every week, some of whom are campaigning for disability rights. Would that be a public order offence if a superintendent believes they were breaching the Public Order Act? What about someone campaigning for housing or about mica or pyrite? If a superintendent believes he or she was committing an offence, could the superintendent then make the application? It seems to me that under this legislation, the superintendent would be able to go to a service provider and ask it to disclose user data in respect of people committing those type of offences, possibly even a parking ticket because that is an offence. This is where I disagree with the Minister about the pared-back nature of it. The current system refers to a serious offence. Breaking a window is a serious offence because you will get five years for it in the Circuit Court. Stealing a Mars bar from a shop qualifies as a serious offence if it goes to the Circuit Court, which it can. This has been changed to "an offence", which is so wide-ranging that I would have to disagree with the Minister. This is not a pared-back piece of legislation.

Helen McEntee (Meath East, Fine Gael)
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I know we probably will not get time to go through all the amendments so I will try to respond to the other amendments in this contribution. With all due respect, we do not know where any of us will be in 24 months or nine months. I am very genuine and clear in what I am saying. I have set out - I intend to have a justice plan 2023 all going well - how and when we will progress this legislation but that is not to say I or this Government will not be here. That is not to say anything cannot happen. We are not providing-----

Brendan Howlin (Wexford, Labour)
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The Government does not operate on the basis of individuals.

Helen McEntee (Meath East, Fine Gael)
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No, it does not but legislation can then be prioritised or not prioritised and move along at different rates. While I might have a particular timeline-----

Brendan Howlin (Wexford, Labour)
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That is why we need a definitive timeline.

Helen McEntee (Meath East, Fine Gael)
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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.

James Lawless (Kildare North, Fianna Fail)
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I am afraid that I do not quite follow the argument that things and personnel can change. We accept the Minister's good faith in terms of her intent to bring forward legislation in six or 12 months. If that was the case, we would all be relieved. It is not second-guessing the Minister. It is second-guessing events because we do not know what the future holds, what Minister may be in office or what Administration may be on this side of the House. That is the point of it. It is about saying that regardless of events, personalities or individuals, this or any successor Administration will be bound by this because there is a sunset clause. I do not think anyone coming into office with a provision about to expire would sit on it. I think he or she would act immediately. That is the whole point of this - to encourage that. I do not understand the argument put forward by the Minister about people changing because if she is in office, she will do it. It is more about what happens if things change down the line. That is the whole fear. That is what this is about. It is a safety net to make sure this happens.

Since we are discussing the other amendments, I will move amendment No. 7 because we are straight into the wider discussion about the seven amendments-----

Catherine Connolly (Galway West, Independent)
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The time is up.

James Lawless (Kildare North, Fianna Fail)
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I will speak to the amendment very briefly because the Minister has to take all the amendments in her response.

Catherine Connolly (Galway West, Independent)
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We have run out of time. I am really sorry.

James Lawless (Kildare North, Fianna Fail)
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Under the 1996 Act, it was common practice to have codes of practice for different sectors. That is a good idea. The stakeholders in this Bill, in the telecommunications and other sectors, said it would be very helpful. It was always done in the past under previous legislation. It would be helpful if the Minister would consider accepting that amendment. That would help the legislation to be adopted and taken on.

Catherine Connolly (Galway West, Independent)
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I am sorry for interrupting the Deputy, but I am afraid the time is up.

The time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 5 July: "That in respect of each of the sections undisposed of, the section is hereby agreed to in Committee; the Title is hereby agreed to in Committee; the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed; and the Bill is hereby passed."