Lynn Ruane (Independent) | Oireachtas source

I welcome the Minister. I will be brief. I do not want to rehash any of the key events that have resulted in us dealing with this legislation here today. I echo the concern at the lack of speed with which pre-legislative scrutiny was carried out in respect of the Bill. The Data Protection Commissioner only received a finalised version of the general scheme of the Bill less than 24 hours before appearing before the justice committee as part of the pre-legislative scrutiny process. I am uncomfortable with the speed at which that had to be done, although I understand that it was as a result of a reaction.

The Minister said it is an emergency measure in response to court rulings, and that there will be fuller reforms soon, following on from the general scheme of an amendment Bill that underwent pre-legislative scrutiny in 2017. The emergency Bill also does not meet conditions of the Court of Justice of the European Union ruling, so would still be potentially illegal and open to legal challenge. Recommendations that emerged from the 2017 pre-legislative scrutiny process are not reflected in the Bill.

My main purpose in contributing is to put on record the intention behind some amendments we will table between now and Committee Stage. One relates to a sunset clause on the Bill. As the Minister has acknowledged, this Bill is an emergency measure, and fuller reform of this area needs to follow quickly. The idea then that this Bill would be introduced and allowed to operate indefinitely, until such reforms are ready, is unacceptable. It has been known since 2014 that our 2011 Data Retention Act was no longer in line with EU law, yet here we are in 2022, eight years later, rushing through emergency legislation to respond to a Court of Justice of the European Union ruling. Where was the urgency in reforming this over the past eight years? It is essential that a sunset clause is introduced to ensure that the Government maintains a sense of urgency around the fuller reform of our data retention law, and to ensure that flimsy legislation like this does not end up running on for years, as we know it may well do. A sunset clause is the minimum level of safeguard we need to put in place.

In terms of the definition of "national security", in order to satisfy the requirement of proportionality, the legislation must lay down clear and precise rules governing the scope and application of the measure and must indicate in what circumstances, and under which conditions a measure providing for the processing of such data may be adopted, thereby ensuring that the interference is limited to what is strictly necessary. These conditions are not met by the current legislation, which means that it is still illegal. The vague term "national security", which is not accompanied by a definition, cannot possibly provide the necessary reassurance.

We also intend to table amendments on the removal of the one-year rolling retention of data, which is still illegal under the Court of Justice of the European Union ruling. The court ruled that the duration of each data retention measure must be limited in time to what is strictly necessary and that such measures, while they can be renewed, cannot be systematic in nature.Thus, each case must be individually assessed and the period of data retention should be prescribed specifically for the necessities of each case. The current mechanism of the Bill, which grants blanket one-year retention to all cases, is, therefore, blatantly illegal. It is, again, inexplicable that we would rush through emergency legislation to address an illegality and that an emergency Bill would itself be illegal. It is quite unbelievable that this House is being asked to do this and that we are being asked to waive proper parliamentary procedure to replace one form of illegality with another slightly diluted form of illegality. Special protections for journalists’ data is another area in which we intend to submit an amendment. It is a requirement under the European Convention on Human Rights, ECHR, that surveillance aimed at identifying journalistic sources should go through a heightened screening process, including prior independent judicial approval.

I hope we get time this week to have some level of scrutiny when we return to this Bill and also to the amendments that will be tabled in the House. We are obviously happy to engage between now and then if time permits.