Rónán Mullen (Independent) | Oireachtas source

I welcome the Minister to the House. Much of the criticism of the Government that followed this decision from the European court was around the issue that the Government seemed to have sat for a very long time on an uncomfortable reality that there had been a decision as far back as 2014 against the country in the context of the Digital Rights Ireland case. When the decision in the Graham Dwyer case was handed down by the European court those who followed that case and took a strong view of privacy rights more or less said "We told you so", that they saw this coming and that the 2011 law, as it stood, envisaged a measure of data retention that simply was no longer acceptable under European law. I cannot speak for all the citizens of this country but I think many ordinary people will be concerned at the idea An Garda Síochána will not in future be in a position to access all possible information necessary for the investigation of serious crime, including murder.

This legislation is being rushed through in a very unsatisfactory way. We saw what went on at the very truncated pre-legislative scrutiny stage. I accept what the Minister said in that this is a piece of holding legislation and that she had to act quickly to safeguard such rights as may be capable of being safeguarded in terms of the need to access data but from what I can read the position is data may still be retained, although only for national security purposes. Data may be obtained for the investigation of crime if it is certain kinds of data but it is not that long ago that people were congratulating the painstaking and forensic Garda investigation work that led to the conviction of Mr. Dwyer. It seems to me what is going on here is a complete capitulation to a European decision and accepting an unpleasant and unacceptable reality that in the future this kind of access to location data from mobile phones specifically will not be possible in future.

I note Mr. Justice Hunt's decision in recent days. Among the many points he made was the fact that it related to the accessing of mobile phone records in 2019 and that therefore he was not in some sense bound by the recent decision of the Court of Justice of the European Union. However, consider the judge's language in describing the European court's decision and its prioritisation of a particular vision of privacy rights. He caught the mood of many people when he effectively criticised, as it were, the priorities of the Court of Justice of the European Union.

I note what Senator Ward said about the necessary evolution of data protection law but that is effectively the language of capitulation. How come there has been no national discussion in the media, no questions asked of Government and no statements of intent by Government to go back to our European partners and say it is an unforeseen and undesirable consequence of this decision that cold-blooded murder, should it take place in future, cannot be investigated to the fullest possible extent. It seems to me people are failing to distinguish between the legitimate protection of data rights and privacy rights. Legitimate protection should entail that information can only be accessed in certain cases subject to certain safeguards, for example, involving the requirement of going before a judge and so on but the principle should be that such information may be retained and may in the future potentially be accessed for the purposes of investigating and prosecuting serious crime.Am I on another planet to be the only person I have heard so far to express this concern in the Houses of the Oireachtas? Is there something I do not understand about the way European negotiations go on - that a government cannot talk to its fellow governments at European level and say, "This is something undesirable"? We have seen in the past in the context of our own Constitution that where people did not like rulings, they brought forward referenda to change things. We have seen in the past that where legislation is interpreted in such a way as to entail unforeseen consequences, there is remedial legislation. The Government's approach here seems to be, "Oh we're just going to put our hands up and salvage as much as we can". Can we not ask the fundamental question? Should it not be possible to envisage the retention of such data, including location data, and access it in certain circumstances in the future subject to certain rules about how it can be done in order to prosecute and eventually criminalise murderers? Could anything be as serious as that? I have not heard the Government is going to do its utmost to restore us to a situation where good detective work can go on, information can be obtained and data can be accessed for a good purpose - not for the purpose of breaching people's privacy but for the higher purpose of preventing and prosecuting serious crime.