Vincent P Martin (Green Party) | Oireachtas source

Once again, I welcome the Minister to the House. She is a frequent visitor. It is always great to see her in the House. I thank her for her opening statement. It was comprehensive and full of candour but it was very depressing. In her opening remarks, the Minister said:

On 5 April this year, the Court of Justice delivered its ruling. In essence, the court confirmed that general and indiscriminate retention of traffic and location data is permissible for the purposes of safeguarding national security only. Such retention is not [I repeat, "is not" and the Minister was very frank with us] permitted for the prevention, detection, investigation or prosecution of a serious criminal offence.

We have clarity from the Minister. On foot of the judgment, the Minister accepted that we have a significant degree of clarity on what is and is not permitted. I sympathise with the Minister and anyone in the Government who has to square this. Looking at what the Minister said, this is clarifying an exceptionally fair, honest and decent approach on the part of the Minister to this dreadful proposed legislation. The Minister said, "While Ireland and a large number of other EU member states made strong legal arguments against making such a distinction in the relevant legal proceedings before the Court of Justice, the court did not accept these arguments". She then said, "I respectfully disagree with the Court of Justice ruling in this respect".

I do not think the Minister could be any more honest. For a serving Minister to say that is a breath of fresh air but it is about the only breath of fresh air on a very dark day for this Bill to be read a Second Time. I accept the Minister's good faith and I accept what she said when she said our laws must reflect the legal outcome, which is why this amendment is proposed. I have the utmost respect for the adviser to the Government, Paul Gallagher SC. He has a different job to me or any legislator. From recollection, he was probably representing Ireland in some of these cases.

I commend Ireland for taking such a forthright stance on these cases. I say this as a proud European and someone who believes in the European process. I understand that one takes the good with the bad but this is not bad. If one wants alarm bells to go off, on a scale of one to ten, this gets 11. Before we can support this legislation and before it goes through the House, I need clear detailed assurances and evidence that everything else was tried first. Some would say that the court in Luxembourg is out of control while others would ask why people would say it has gone out of control recently and argue that it has been out of control for quite some time.

Every case falls on its own unique circumstances and facts. I fear I know the answer because Mr. Gallagher would have tried everything possible in the world of legal and mental gymnastics and he is a very decent, highly intelligent and respected leader of the Bar but one must bring people with one. There is a disconnect at the moment and I need to be assured that we have tried everything humanly possible to fight a court that has gone out of control.

Regarding all the talk about preservation orders, they do not come into play in certain circumstances so that is a palaver in respect of criminals who are not identified at present. I do not think that people fully appreciate yet that if a serious crime is committed today, if it is not an issue of national security, after 90 days, evidence that could be very supportive and corroborate a prosecution is not just inaccessible, it is destroyed. After 90 days, one cannot get it for a serious offence like murder or rape.How can a preservation order possibly be obtained if the person is unidentifiable and we do not know where we are looking for it? We know, without mentioning any cases, that the tracking and location data can be vital in putting murderers and rapists behind bars after affording them a fair trial. Is there no way around that? Can we try harder to perhaps keep the data alive but under strict safeguards in order that if anyone abuses or exploits the data, the penalties are most severe, including custodial sentences? Could we say that if we want further balances, checks and safeguards, that no one gets to the data, even if there is a criminal investigation? In other words, we would throw away the key except in one instance, namely, where the Supreme Court can find the key and reopen the matter.

The legislation destroys evidence of a person unknown. We all celebrate cold cases. We may forget about this extremely important evidence gathering because a few years down the road, we cannot benefit from such evidence because it will be gone. Even in the case of a terrorist, where national security is at stake, the evidence could theoretically be gone after one year. This is an abomination. The fact is that it happens to be in compliance with EU law, which I respect. Ireland is a democracy. I accept that the Minister finds herself in a difficult position. I emphasise that this is no criticism of her or her hard-working officials, some of whom kindly addressed us in a private session at the joint committee, and were very frank, forthright and fair. This is no criticism of the Government, but it is a criticism in the context of what we do next. I just cannot accept this in its current format until I am absolutely convinced and reassured that there is no alternative.

Like most, if not all, people in here, I value liberal thinking and liberal treatment, but in spite of my liberal leanings, there can be countervailing rights. Sometimes I put my liberal leanings in abeyance if I think we can help our country convict and put away murderers and rapists. That is at a different level of countervailing rights to privacy, for which I have so much respect and for which I would fight.

I thank the Acting Chairperson for his indulgence. The bigger right of assisting prosecution teams in convicting rapists and murderers must take precedence in order to protect our country, people and children.