Seanad debates
Wednesday, 5 November 2014
Criminal Justice (Terrorist Offences) (Amendment) Bill 2014: Committee and Remaining Stages
1:10 pm
Paddy Burke (Fine Gael)
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I welcome the Minister of State at the Department of the Taoiseach, Deputy Dara Murphy, to the House. This is his first time in Seanad Éireann so I wish him well in his new portfolio and congratulate him. We are here to discuss the Criminal Justice (Terrorist Offences) (Amendment) Bill 2014 - Committee Stage.
Paddy Burke (Fine Gael)
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Amendment No. 1 is in the names of Senators Cullinane, Ó Clochartaigh and Reilly.
Trevor Ó Clochartaigh (Sinn Fein)
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I move amendment No. 1:
Go raibh míle maith agat, a Chathaorligh, and I concur with you.
In page 8, between lines 27 and 28, to insert the following:“Transfer of data outside jurisdiction
12. Data may not be transferred to another jurisdiction for the purposes of it being used against an individual who has already stood trial and been acquitted in this jurisdiction.”.
Ba mhaith liom comhghairdeas a dhéanamh leis an Aire Stáit as an gceapachán atá faighte aige. Tá súil agam go n-éireoidh go geal leis ina phost nua. I wish him all the best in his new position. This is the first time I have had an opportunity to address him. I hope he enjoys his new role and wish him all the best with it.
Sinn Féin tabled two amendments, for today, on the two different Bills which are retrospective and relate to the issue I raised on Second Stage. The rationale behind this amendment is that any data collected under this legislation should have to comply with standards in the Twenty-six Counties and not those of any other member state. Sinn Féin does not want to see a situation where data that is being shared in good faith leaves the hands of another member state when its no longer under the standard under which it left Ireland. We feel we cannot afford to see an abuse of power by governments in this area. I cite the example, in recent years, when Mr. Frank McBrearty, Jnr., tried to enter the US with his family but was refused entry by the US authorities. He was refused entry on the grounds that he had a conviction for assault despite it being overturned and being found to be innocent of the charges levelled against him. We feel the matter raises very serious concerns on how data on individuals is retained in this country and then exchanged with agencies in other jurisdictions.
Already there are problems with data protection standards in various police forces. In England it was disclosed that British files wrongly list thousands of people as criminals resulting in many of them being refused employment. We must be careful, if data is being recorded, that it is recorded accurately and that proper regulations are in place with a data controller. In general, Sinn Féin supports the Bill but we feel this issue will add to people's fears about data protection. We have seen so many instances of online misuse of data, etc., that we feel our amendment would strengthen and improve the Bill in a very small way but in a way that we hope the Minister of State would take on board and accept.
Dara Murphy (Cork North Central, Fine Gael)
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I thank the Senator and the Cathaoirleach for their kind words. It is a pleasure and great privilege for me to be here for the first time and I hope to return on another occasion. I also convey the apologies of the Minister, Deputy Frances Fitzgerald.
The Senators' amendment provides for the insertion of a new section in the terrorist offences Bill prohibiting the transfer of data "to another jurisdiction for the purposes of it being used against an individual who has already stood trial and been acquitted in this jurisdiction".
In the case of this Bill, any transfer of data to another jurisdiction would be governed by EU law or the terms of the Council of Europe Convention on the Prevention of Terrorism, the text of which is set out in Schedule 2 to the Bill. Paragraph 2 of Article 17 of the convention provides that parties will carry out their obligations in relation to international co-operation in criminal matters in conformity with any treaties or other agreements on mutual legal assistance that may exist between them. In the absence of such treaties or agreements parties will provide assistance to one another in accordance with their domestic law.
The Office of the Parliamentary Counsel has advised, therefore, that the provisions of the Criminal Justice (Mutual Assistance) Act 2008, as amended, would apply in this case and that no further provision is required in this Bill as proposed by the amendment. The mutual assistance Act provides the legal framework for the provision of assistance that applies to offences across the Statute Book. It is appropriate for all requests for assistance and transfers of data to be dealt with within the context of that framework, rather than by way of individual legislative provisions.
There are restrictions on providing assistance contained in the 2008 Act. In the context of the international agreements concerning mutual assistance arrangements to which the State is a party, this is the appropriate framework within which decisions on mutual assistance should be taken.
As the Senator will be aware, I have been appointed as the Minister responsible for data protection. The data protection legislation also provides for the necessary checks and balances in regard to transfers of data and data protection.
As requests for assistance and restrictions on assistance are already provided for in mutual assistance legislation and as data protection legislation provides a sufficiently robust regime to protect data transfers, it is not proposed to accept the amendment.
1:20 pm
Trevor Ó Clochartaigh (Sinn Fein)
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I thank the Minister of State for his response and I accept both his bona fides in respect of this issue and the background information he provided. In light of the issues we have cited and the examples we have provided, however, I will press the amendment.
Paul Bradford (Independent)
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I welcome the Minister of State. I apologise for missing most of his contribution but I was present for the concluding part. I wish to express my strong objection to the amendment before the House and I was glad to hear the Minister of State indicate it will not be accepted. The phrase "data protection" is nice but protection of citizens and their security and that of the State is what the legislation is about. As a result of the tragic experience on this island and elsewhere across the globe, we are aware of what happens when there is a lack of co-operation between security forces and agencies in the context of dealing with increasingly prevalent and sophisticated terrorist threats. We should be in no way apologetic about putting in place the measures and means required at whatever level to keep citizens, society and our country safe. I am glad the Minister of State is not accepting the amendment. I often clash politically - not personally - with my friends from the Sinn Féin Party and I must inform them that we cannot even consider accepting the amendment because it would lead to a significant undermining of the necessary legislative base that is required to enhance and improve security and deal with the ever-increasing threat of terrorism in all its forms.
Trevor Ó Clochartaigh (Sinn Fein)
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That is an absolutely astounding statement from a man with a legal background. The amendment reads: "Data may not be transferred to another jurisdiction for the purposes of it being used against an individual who has already stood trial and been acquitted in this jurisdiction." Is Senator Bradford saying he does not trust the Irish judicial system and that where someone stands trial and is acquitted, he or she is not held to be innocent of the charges laid against him or her? We are seeking to ensure the latter will not be the case. The inference the Senator is making to the effect that we are opening the door for terrorists is completely misleading. Unfortunately, policing authorities and judiciaries in many other jurisdictions have misused information with which they have been provided. This has led in many instances to wrongful prosecutions which were subsequently overturned. It is absolutely wrong to infer we are trying to open the floodgates. We are seeking to ensure that if a person is acquitted of a crime in this jurisdiction, the decision of our Judiciary will be respected. We are also seeking to ensure the relevant data transferred to another jurisdiction would be bona fide in nature and would not clash with any findings made by the Judiciary in this jurisdiction.
Paul Bradford (Independent)
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I thank my colleague for bestowing a legal qualification upon me. His action might open up the possibility of my entering onto a new career path.
Paddy Burke (Fine Gael)
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The House knows what the Senator was talking about.
Paul Bradford (Independent)
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At the core of this legislation and similar legislation introduced by the Government is the framework for keeping, in so far as is ever possible, our citizens, society and country safe. We should never apologise for that. I would be the first to concede that at times there have been tragic miscarriages of justice and that major errors have been made. There has been in such instances, however, at least the possibility of correcting the awful damage done. There is no chance of redress in circumstances where people are blown to smithereens as a result of terrorist activity. I reiterate that I am glad the Minister of State is not accepting the amendment and also my view that he is absolutely correct not even to contemplate doing so. That is the end of my game of tennis with Senator Ó Clochartaigh on this matter.
Trevor Ó Clochartaigh (Sinn Fein)
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I certainly hope it will be game, set and match. While I do not normally engage in toing and froing on amendments of this nature, I do not like the tone of the Senator's approach to the amendment. What he outlined is definitely not what is intended in the context of this amendment. As I informed the Minister of State, we support the Bill. We are trying to ensure everyone will have access to due process and that when the latter has been observed in this jurisdiction, this will be respected in others. The Senator may not have been present when I cited a number of examples regarding abuses of power by governments in other jurisdictions. It was in that context the amendment was tabled.
Dara Murphy (Cork North Central, Fine Gael)
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I accept what Senator Ó Clochartaigh believes might be the intention behind the amendment. There are in place, however, mutual assistance treaties which have been agreed with states throughout the European Union and elsewhere and which function well. Those treaties provide protection and safeguards in respect of both data and individuals.
I could not agree more with Senator Bradford regarding the importance of data protection. The latter is a vague, almost technical term which relates to the protection of an individual's rights but also of those of society in general. We have an obligation to ensure we have procedures in place which allow protection to be afforded not just to our citizens but also to those of other countries. We must, therefore, consider this matter in a broader context. The necessary protections in that regard are contained in the mutual assistance treaties to which I refer. I must state again that we will not accept the amendment.