Eugene Regan (Fine Gael)

I thank the Minister of State for outlining the position in respect of the Bill. He indicated that nothing new is created in the Bill and that it does no more than extend, with some changes, existing obligations relating to telephony and Internet data. He then referred to the infringement proceedings and suggested we should get on with passing the legislation. Those proceedings came about as a result of the failure to adopt national legislation in respect of this matter. The digest relating to this Bill, which was prepared by the Oireachtas Library and Research Service, highlights the fact that the "The domestic solution which had been under preparation by the Department was dropped in favour of pursuing a Data Retention Directive at European level". As the Minister of State indicated, the Government joined other member states in trying to adopt a framework decision. The domestic approach then failed.

Ireland was involved from the outset in the attempt to formulate a solution at European level. However, the Minister of State failed to refer to the fact that it challenged, in the European Court of Justice, the decision to draft a directive and stated that this matter should have been dealt with by way of framework decision.

I cannot understand how a European directive, which was passed in 2006 and which was required to be transposed into law by 15 September 2007, has still not been accommodated within our legislative framework. The Minister of State now suggests that this is a pressing matter and that we need to get on with tackling it. The same line was trotted out a couple of weeks ago in respect of anti-money laundering legislation. Ireland was challenged in the European Court of Justice on two occasions in respect of the latter. The Minister of State indicated that a judgment has now been handed down against us and that we run the risk of having fines imposed, which is the case with regard to non-compliance with EU law.

The explanation the Minister of State offered in respect of the delay is just not sufficient. To be in default in respect of the transposition of EU law is a serious matter. It is most unsatisfactory that the Government continually introduces Bills and states that it is in default and that judgments have been made against it in respect of delays in transposing directives. The Minister of State indicated that the retention of data is important for many reasons, including in respect of combating organised crime, terrorism, etc. However, there has been a delay of almost three years beyond the implementation date relating to the directive. The Government does not have its priorities right in this area.

The transposition of the directive into Irish law should have been easy because the work relating to the subject matter of the Bill was done at European level. Ireland participated in the adoption of the directive at that level but there has still been a delay. One of the reasons offered by the Minister of State in this regard is that the matter must be dealt with by means of primary legislation and that, therefore, the publication of the Bill was delayed. Why would that lead to a delay in the publication of the Bill? I could understand if it had given rise to protracted debate within the Houses. However, it is quite unsatisfactory for such a delay to have occurred. It is extremely embarrassing for the country that it is in default in respect of the implementation of EU legislation which, as everyone acknowledges, is important, especially in the context of combating the most serious forms of organised crime.

The EU directive on the retention of data states:

The Conclusions of the Justice and Home Affairs Council of 19 December 2002 underline that, because of the significant growth in the possibilities afforded by electronic communications, data relating to the use of electronic communications are particularly important and therefore a valuable tool in the prevention, investigation, detection and prosecution of criminal offences, in particular organised crime.

The directive also refers to combating terrorism and to issues relating to the European Convention on Human Rights, particularly in the context of Article 8. It further states:

[E]veryone has the right to respect for his private life and his correspondence. Public authorities may interfere with the exercise of that right only in accordance with the law and where necessary in a democratic society, inter alia, in the interests of national security or public safety, for the prevention of disorder or crime, or for the protection of the rights and freedoms of others.

The directive strikes a balance and, as is normally the case, bestows on member states a certain amount of latitude and flexibility with regard to how they choose to implement it. The directive also calls for remedies and refers to: "The right of any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with national provisions adopted pursuant to Directive 95/46/EC to receive compensation". The directive is balanced and transposing it into national law could in no way be seen as difficult. In that context and in light of the importance of the exercise of that transposition, the Bill, notwithstanding the extraordinary and inexcusable delay in this introduction, must be welcomed.

A number of issues have been raised by certain groups. These issues relate to the balancing of people's rights, particularly in the context of Article 8 of the European Convention on Human Rights. The German Constitutional Court recently handed down a judgment on the manner in which the directive was to be implemented in Germany. An issue with regard to the principle involved arises. However, the essential difficulty arises in the context of the safeguards that are implemented in national legislation. That is the issue which arose for the German Constitutional Court. The issue that arises for us is whether the safeguards and supervision and oversight mechanisms contemplated in the Bill will prove adequate.

Another issue arises with regard to retention periods and the fact that Ireland has chosen to impose the maximum retention period. The case has been made that this will impose a financial cost on service providers etc. However, an exceptional situation obtains in this country in that there has been a breakdown in law and order as a result of the activities of those involved in organised crime. The most recent report of the Independent Monitoring Commission refers to the resumption of terrorist attacks in Northern Ireland - invariably, such attacks will spill over into this State - and states that the threat of terrorist activity is at its highest level for some time. The retention periods provided for in the Bill are appropriate. However, provision should be made to review them every three years to assess whether such lengthy periods are required. This would add to the proportionality of the measures that are proposed. In view of the fact that Ireland has specific problems when it comes to organised crime and terrorism, the retention periods that are envisaged are appropriate for now.

Issues arise about the adequacy of the provisions regarding oral requests for disclosure of data. While there is provision for reports to the Minister and the European Commission, a regular report should be made to the Oireachtas on the implementation of the Bill, following its introduction. In addition, those affected by the illicit disclosure of personal data should be notified of any such leaks. There should be sanctions in place, as well as adequate remedies and compensation for those affected. An issue also arises regarding the cost of data retention and to impose it simpliciter on service providers without a contribution would be draconian.

An issue has been raised regarding the competitiveness of the economy, in that the Bill proposes the imposition of a highly onerous regime. This also must be taken into account. These are a number of the issues that can be dealt with on Committee Stage.

Fine Gael welcomes the introduction of the Bill, although the delay in its introduction was inexcusable. I reserve my position in respect of tabling amendments on Committee Stage that I consider to be appropriate.