Pat Gallagher (Donegal South West, Fianna Fail)

I thank Senator Fiona O'Malley for raising the issue of data retention on the Adjournment today. It gives me an opportunity, on behalf of the Minister for Justice, Equality and Law Reform, to outline the position, however briefly, with regard to data retention.

Traditionally, telephony operators retained data for their own billing and marketing purposes for a considerable period — often for up to six years — in line with the Statute of Limitations. The information was made available to the Garda on request on an informal basis. Some shape was put on that system in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, under which requests for data had to be made through a Garda chief superintendent or a colonel in the Permanent Defence Force. This system continued until the EU Telecommunications Directive 2002/58/EC which, as interpreted, allowed data to be retained for only up to six months. This would have caused problems for law enforcement and State security and, accordingly, the then Minister for Public Enterprise, using her powers under the Postal and Telecommunications Services Act 1983, issued directions to the main telephony operators to retain data for three years.

That was intended as a temporary measure until primary legislation was ready. The preparation of the legislation was delayed by negotiations on the EU framework decision on data retention. However, matters came to a head in January 2005 when the then Data Retention Commissioner issued notices to the main telephony operators to retain data for no longer than six months. To retain the integrity of a system that is crucial in the fight against crime, including terrorist crime, emergency legislation had to be prepared placing the temporary provisions on a full statutory basis. This was done in this House by way of amendments to the Criminal Justice (Terrorist Offences) Act 2005. I emphasise that the importance and effectiveness of data information in protecting our people against the activities of criminals, including terrorists, cannot be overestimated.

The negotiations on the framework decision petered out and it was decided instead to transform the instrument from a Third Pillar framework decision to a First Pillar directive. Agreement was reached on the directive following intense negotiations but Ireland voted against it on a matter of principle — we had no significant problem with the content. The First Pillar is designed to regulate the internal market. At present, we have a challenge to the legal base for the directive before the European Court of Justice but that does not absolve us from transposing the directive.

Transposition will take place as soon as possible after all consultations have been completed. The directive was due for transposition last September but, because of our existing legislation on data retention, a method had to be found whereby the same scheme and safeguards would apply to both telephony and Internet data. It is the normal practice to transpose directives of this type by means of a statutory instrument. Transposition means that we will have a similar system of data retention to all of the other member states of the European Union. This will allow member states to co-operate more fully in responding to crime, including the transnational criminal gangs that traffic human beings and drugs, and the threats posed by terrorists, both from within and outside the European Union.

Finally, the directive is a joint collaboration between the European Parliament and the Council. Recital 9 makes it clear that it complies with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms under which everyone has the right to respect for his or her private life. I reject that such a system is a breach of freedom. It is relevant only to information such as when and the number to which a call was made and the location of a call. It does not require content of messages to be retained. We have little room for flexibility in transposing the directive, but where we have some element of flexibility, such as the periods for which data must be retained, final decisions have not yet been made.