Communications (Retention of Data) Bill 2009: Committee Stage.

The meeting has been convened for the purpose of consideration by this committee of the Communications (Retention of Data) Bill 2009. I welcome the Minister of State, Deputy Peter Power, and his officials. Deputy Seán Sherlock is attending in substitution for Deputy Pat Rabbitte. A grouping list has been circulated and three submissions on the Bill were circulated previously.

SECTION 1.

I move amendment No. 1:

In page 4, subsection (1), line 20, after "person" to insert "or body corporate".

There should be reference to a corporate body in this subsection. If the amendment is accepted, a "service provider" will be defined as "a person or body corporate engaged in the provision of a publicly available electronic communications services or a public communications network by means of fixed line or mobile telephones or the Internet". I ask the Minister of State to accept the amendment.

It is good to be back before the committee which I consider an old stomping ground.

While I thank the Deputy for tabling the amendment, it is unnecessary in the sense that section 18 paragraph (c) of the Interpretation Act 2005 defines the word “person” in the construction of any enactment or legislation as importing a “body corporate”. Generally, legislation makes a distinction between an individual and a body corporate. The former is a human being, a person, whereas the latter is either a body corporate established under statute, for example, the Companies Acts or another statutory authority. However, the word “person”, as defined by the Interpretation Act, is designed to incorporate both individuals and bodies corporate. For this reason, while I accept the motivation for the amendment, it is unnecessary.

I thank the Minister of State for clarifying the matter. As the inclusion of the term "body corporate" would make sense, I propose to press the matter.

Amendment put and declared lost.
Section 1 agreed to.
Section 2 agreed to.
SECTION 3.

Amendments Nos. 2 and 3 are related and will be discussed together.

I move amendment No. 2:

In page 5, subsection (1), line 2, to delete "2 years" and substitute "1 year".

I ask the Minister of State to set out the Government's rationale for introducing a two-year period for retaining data in the case of telephony and a one-year period in the case of Internet data. I seek a clearer view of the Government's position in this matter before justifying my amendment.

The legislation provides for two separate retention periods for telephony and Internet access. The proposed amendment would have the effect of reducing the period proposed by the Government by half. If we were to accept the amendment, it would seriously hamper the law enforcement authorities in their constant efforts to bring serious criminals, including terrorists, to justice. I do not infer that it is the intention of Deputy Sherlock or the Labour Party to bring about such a circumstance. The Government's position is that the extended period is required to ensure the Act is more effective and forms an appropriate part of the investigative process. The period of one year is too short.

In the negotiations that gave rise to the data retention directive it was acknowledged that when discussing the retention of data as a weapon in the fight against serious crime and safeguarding state security, member states in the European Union had very different traditions and practices, sometimes built up over many years. In addition, some member states had no legislation whatsoever governing the retention of data. That was one of the reasons it was deemed necessary to have a directive and a member state could choose retention periods of not less than six months but not more than two years. The directive sets out parameters of choice for each member state.

That begs the question as to why one would have different periods; it is to reflect the judicial traditions of each country. Some have an investigative process that lends itself to prosecutions at an early stage, while others, including Ireland, have strong jurisprudence in terms of constitutional rights which are enshrined in legislation. That inevitably means that the rights of accused persons and those under investigation are given constitutional protection which might not be the case in other countries. Therefore, because of this, the periods differ from country to country. The Government submits that a two-year period which is slightly longer than what was suggested would be more appropriate in our circumstances. That is the advice of the Garda Síochána.

First I will take Deputy Joe Carey and then go back to Deputy Sherlock.

With respect, I asked the Minister to speak to my amendment in order that I could then respond.

The amendments are the same.

I wish to make a brief point. We, in the Fine Gael Party, responded to the submission provided by the Data Protection Commissioner. Has the Minister perused that submission and taken into account what is stated in it?

We have. My clear understanding of what Deputy Sherlock said is that before he moved his amendment, he wanted to hear the Government's rationale for its position. He asked me specifically not to address his amendment. He asked me to justify the Government's position. I would be more than happy to speak to the amendment. That is what I intended to do. The reply incorporates a response to Deputy Carey's question. If Deputy Sherlock would like me to do that, I will.

I presume that I am entitled to respond to the Government's justification for its position on the Bill.

I would have thought that the rationale behind the amendment would have been brought forward and that we would respond to it.

The Minister of State's justification for the Government's position, vis-à-vis the two-year retention period for telephony and the one-year retention period for Internet data, is on the basis of security and counter-terrorism measures. I understand that rationale and no one would argue against it, but I take issue with the time periods. That is the reason we have sought to have them reduced from two years to one and from one year to six months, respectively. In the context of the transposition of a directive that dates back to 2006, one speaks to the historical context of that directive and also refers to any subsequent legislation enacted that has more than adequately dealt with counter-terrorism or crime prevention measures such as the Criminal Justice (Surveillance) Act. I am looking at the permutations of the Government’s position vis-à-vis the cost to business. I submit that placing on Internet service providers or telephony companies an obligation that they must store data for two years would result in an undue cost burden. One will not have an impact in terms of crime prevention or detection if one has existing legislation on surveillance.

The average period in Europe for the retention of data varies. In France there is a one-year time period. In Germany it is six months. Holland, Luxembourg, the Czech Republic and Romania all favour a six-month period also. We should be mindful of where we are coming from. We are talking about the transposition of a directive, therefore, let us look at the historical perspective. We must consider whether there is a necessity to have the periods at two years and one year, respectively. I submit that there is not. I ask the Government to examine the industry-wide position, which is significant because of the cost burden on business that will have an impact on Irish businesses, and also the average retention periods across the European Union. All I ask is that the Minister of State look at that matter and report back on Report Stage.

Now that Deputy Sherlock has made the case for a shorter period, it is appropriate that I respond to him. There is a distinction to be made between the cost to industry and the effectiveness of the provision in terms of the time limits imposed. They are two separate issues. The first issue about which we should be concerned is whether the periods of retention in the legislation are appropriate in making the legislation effective in the Irish context. Some member states that agreed to the directive had no legislation whatsoever governing the retention of data. That was one of the reasons it was deemed necessary to have a directive and a member state could choose retention periods of not less than six months and not more than two years. It is valid for each member state to have different retention periods within these parameters, as anticipated by the directive. It is in full compliance its the terms and aims.

Recital (9) of the directive addresses the question of compliance with Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms which deals with respect for private life. The case is made that the adoption of an instrument on data retention complies with the requirements of Article 8 and is, therefore, a necessary measure.

On Second Stage the Minister for Justice, Equality and Law Reform explained to the House in considerable detail our traditions and practices on data retention, built largely on voluntary disclosure and goodwill. The idea of having an option for each country is to reflect each country's national traditions. There is no need for me to set out what the Minister said, but it would be difficult to exaggerate the importance of data retained and disclosed in the investigation of crime. We know of some recent high profile cases in which that kind of data was used in a way that was clear for the public to understand; that is crucially important in solving some important crimes.

We submit that shorter retention periods might be more appropriate in other countries where different methodologies in fighting crime might lay less emphasis on data retention and more on surveillance, covert operations or other evidence gathering measures. That said, our 12 month retention period for Internet data is very much in the mainstream. The significance of this is that the Internet is a relatively new technology. It is accepted that the vast majority of disclosure requests are for data less than three months old. However, the quality of older data ensures it can make a big difference in solving crimes. For example, where a person is being investigated for the commission of serious offences, it could be that information gleaned from older communications could lead to the arrest of a fellow gang member or even to persons being no longer regarded as under suspicion, in other words, exculpatory or alibi-type evidence.

That countries adopt different positions does not mean Germany is wrong and we are right, or vice versa. The fact is that positions are tailor-made to suit national circumstances. Ours are such that investigations here are slightly longer than those in other countries. This is because due regard must be had to constitutional and human rights according to what is regarded internationally as highly developed and respected jurisprudence. Other countries have different ways of investigating crime. In this regard, serious and very complicated fraud cases have been brought to trial in the United States in a very short period. That is their system and ours is different. The time limit set out in this legislation reflects that fact. It is a question of protecting citizens’ rights. While we must protect their right to privacy, we must also protect their constitutional rights. That is why a longer timeframe is encompassed by the legislation.

The period of retention applied with a view to protecting one's human rights could equally be shorter. There is no restriction in this regard. Nobody argues against the need to protect human rights. I am not sure if the Minster of State understands my point. If, for instance, one refers to the Internet as relatively new technology and considers all the various components, including social networking websites, and factors such as the number of e-mails one receives and the number of hits on websites, one will realise that, by extending the timeframe, one is building into the legislation a mechanism whereby Internet service providers and telephony companies will be subject to a cost burden. Let me be clear that nobody argues against the principle of data storage. My point on shorter timeframes in other member states is based on the fact that, if these states have shorter timeframes and ours is the longest allowable, we are putting ourselves at a comparative disadvantage relative to the other countries competing on an e-commerce platform with this country. One must bear in mind an average person's Internet usage, including the number of websites visited and whether the person uses Bebo, Facebook, Twitter or other such websites. If all the hits must be stored by the ISP, this imposes an undue cost on it.

On that point——

To finish my point, if it is to be proved that an individual visited a particular website or that a message was sent from person A to person B over the Internet, through Facebook or otherwise, one is imposing a cost on the ISP. It is a question of competitiveness. We have long since moved on from the directive in terms of the threat posed prior to its instigation. The Government is now going too far down the line. I do not argue this point from a civil liberties perspective but from an economic and cost to business perspective. The ability of the Garda to investigate is already well met by existing surveillance legislation. If one added a six-month or one-year period in regard to telephony and Internet access, it would be more than adequate. Will the Minister of State reconsider this matter and revert to me on Report Stage?

We will always listen carefully to the arguments on individual sections; that is the purpose of Committee Stage. The Government reached its position after an extensive period of consultation, including close consultation with the Internet service providers

The reason I wanted to interrupt the Deputy was to invite him to re-read the legislation. There is no question of the content of sites – the Deputy referred to Bebo, Facebook and others – being disclosed in any way. The mere fact that somebody logs on to the Internet is what is at stake. It has nothing to do with websites, it could be any website whatsoever.

The Deputy based his argument on cost and effectiveness. The most important question is whether the legislation is effective in the fight against crime. If one introduces the issue of cost to undermine the effectiveness of the legislation, one is coming at the matter from a different angle than the Government. It would be the incorrect choice. We must ensure legislation is in place that acknowledges the new technologies being used by criminal gangs and that those technologies can be a very important tool in the fight against crime.

Let me refer to costs because they comprise a secondary issue. The point is made that the period of retention could have an impact on the cost to service providers, although probably not to a significant extent. Some costs mentioned by the Deputy and others on Second Stage are way out of line with what would transpire in Ireland. The service providers were not prepared to disclose their costs individually. This is due to fully understandable reasons of commercial sensitivity. They did agree, however, through their representative associations, to offer a composite figure compiled by the nine largest communications companies in the State. They estimate the annual running cost will total €1.57 million and that there will be a once-off capital cost of €2.9 million. These estimates were supplied by the industry and could be expected to be high but we will take them at face value.

As the Minister said on Second Stage, we appreciate the role of service providers in operating the data retention scheme with good will and in co-operation with law enforcement authorities. As is the case in a number of member states, the costs are not reimbursed. This is a good example of how industry can give practical effect to its social responsibilities. It does so by helping law enforcers fight crime by disclosing to them information at their disposal.

Relative to the turnover and profits of the organisations, annual expenditure of €1.5 million, comprising the expenditure pertaining to all the users in question, including users of text, is tiny. It should not really be a factor in deciding the effectiveness of the legislation. It is a question of effectiveness. Let me give an example to the Deputy. In my city within the past 14 months there was a callous murder of an individual. I want to explain how the legislation is important in the real world.

It is unrelated to the legislation.

The Minister of State should be given a chance.

It is related to the legislation. I want to give an example of how the legislation works in practice; surely that is in order. The example I will describe could arise anywhere. The chief superintendent who briefed Oireachtas Members shortly after the murder predicted the criminal investigation would be one of the longest in which he would ever be involved because of the nature of the crime and because gangland members were involved in it, had fled and used proxy drivers. All of these factors suggested to him it would take a number of years for full prosecutions to be brought against a number of people.

The case to be brought would depend significantly on a person's placement at certain times during the course of a crime. If the reduced periods proposed by Deputy Sherlock were enshrined in the legislation, it is clear the serious investigation into the murder of Shane Geoghegan could easily be compromised. This would be the practical effect of the amendment. The investigative process is painstaking and built on our traditions. Whether that is right or wrong is a matter for a separate discussion.

Chairman, may I——

I just want to finish the point. The investigative process is long, painstaking and respects people's constitutional rights. I am citing one example of a case in which the investigation could be badly compromised were the Labour Party's proposal to be enshrined in the legislation. However, we will consider the argument.

Let us revert to the amendment.

That is what I was doing.

The Minister of State was giving us an example.

If one takes that example——

The Minister of State named someone, but I ask that members refrain from doing so.

The Minister of State distinguished between the content and the storing of data.

The content of data is specifically excluded from the Bill.

Let me finish the point, as I also wish to make that distinction. The data must be stored. I agree that the content of a message or e-mail is the subject of a different point. I also agree that one must store data on the interaction or communication between two parties. However, discussing a murder investigation is not realistic. Thanks to the surveillance Act, I guarantee the Minister of State that his argument on this legislation will not prove valid. Most of the information gleaned from communications via telephony will have been gleaned within a period of one year or six months. The statistics will bear this out down the line. There is a storage component. The UK Government made a fund of £20 million available to Internet service providers and telephony companies for the same process. The Government is going beyond what the UK Government did, despite the fact that the latter's position on the detection of crime is more sensitive in terms of the need for counter-terrorism measures. We are trying to create a competitive environment for businesses. Allowing for a period of one year would be reasonable. Reducing it from two years would not impact negatively on the detection of crimes such as the one outlined by the Minister of State. It was disingenuous of him to mention that case, as in doing so he deliberately sought to obscure the point of my amendment.

Does the Minister of State wish to make a final comment? We are going over the same ground.

I was being anything but disingenuous. I believed I was enlightening and trying to bring practical examples to the debate. I fundamentally disagree with Deputy Sherlock's assertion that this legislation might be redundant in some way because of the surveillance legislation.

I did not use the word "redundant".

It is not the case that this legislation is not important. The Bill is a key building block in the fight against crime, organised and gang crime in particular, much of which affects my city. To suggest the legislation should be watered down by the Labour Party's amendment would be to cede ground to gangs and criminals who have gained ground. The Bill is based on a European directive and complies with the time period set out in it. The Garda's advice is that the period in question is necessary in the fight against organised crime. It is not disingenuous but irresponsible of the Deputy to suggest we should water down the period specified or ignore the Garda's advice in the fight against crime.

Amendment put and declared lost.

I move amendment No. 3:

In page 5, subsection (1), line 3, to delete "one year" and substitute "6 months".

Amendment put and declared lost.

I move amendment No. 4:

In page 5, subsection (4), line 20, after "State" to insert the following:

"and includes traffic data or location data and the related data, generated or processed within the State, necessary to identify the subscriber or user and includes only data relating to services provided to the user and not to data travelling across networks".

Ironically, this amendment seeks to strengthen the provision which reads: "The data referred to in subsection (1) include data relating to unsuccessful call attempts that, in the case of data specified in Part 1 of Schedule 2, are stored in the State, or in the case of data specified in Part 2 of Schedule 2, are logged in the State”. The question of jurisdiction comes into play, as we are discussing data stored within the State. I believe in the fundamental concept of storing data for the prevention of crime; therefore, strengthening the provision is the concept behind my amendment.

I thank the Deputy for his amendment. Unfortunately, the Government cannot accept it because it seeks to extend section 3(4) which makes it clear that data relating to unsuccessful calls need only be retained where they are stored or logged in the State. I am informed that such data are not stored or logged as a matter of course. The obligation to retain such data would have little or no impact on service providers. The drafting of this provision is based on Article 3.2 of the directive and meets its requirements. It is not clear if the proposed amendment would have any added value or be technically necessary for the provision to have full effect. On the face of it, it appears that neither consideration applies. Accordingly, I do not propose to accept the amendment.

I will not press the amendment, as I accept the Minister of State's comments.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 5, subsection (5), line 22, to delete "aggregated data that" and substitute "aggregated data, data that".

This is a technical drafting amendment. Subsection (5), which is based on subsection 63(6) of the Criminal Justice (Terrorist Offences Act) 2005, sets out data that are not required to be retained under the provisions of the Bill, namely, aggregated data, data that have been made anonymous or data relating to unconnected calls. To reflect that position properly, it is necessary to add the words set out in the amendment to subsection (5). I commend this technical amendment to the committee.

Amendment agreed to.
Question, "That section 3, as amended, stand part of the Bill", put and declared carried.
SECTION 4.

I move amendment No. 6:

In page 5, subsection (1)(d), line 43, before “, shall” to insert the following:

"or that are the subject of a request under section 6”.

This amendment seeks to strengthen the provisions of section 6.

I thank Deputy Sherlock for tabling this amendment. It raises an interesting point that is already catered for in the Bill in a slightly different but equally valid way. Retained data must be destroyed by service providers after two years in respect of telephony data and 12 months in respect of Internet data. The question arose when the Bill was being prepared as to what would happen to data that might be requested, say, an hour before they were due to be destroyed and could not be disclosed in the short time available. I was assured that this has rarely, if ever, happened under the existing arrangements, but it was nevertheless considered prudent to cater for such an eventuality. Therefore, under subsection (1)(d) of section 4, the data need not be destroyed until one month after the periods of retention have lapsed. This allows sufficient time to arrange for the destruction of data and any late requests within the specified times for data to be disclosed. Both service providers and the law enforcement authorities have expressed their satisfaction with this arrangement. The provision deals adequately with the intent of the amendment.

In essence, the purpose of the amendment was to ensure data would not be destroyed once a request for disclosure is made. I accept the Minister of State's response in this regard.

Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5.

Amendments Nos. 7 and 8 are related and may be discussed together.

I move amendment No. 7:

In page 6, paragraph (d), line 14, before “as” to insert “where there is a legitimate business need”.

This amendment would strengthen the legislation by providing for any practical difficulties service providers may encounter. In regard to amendment No. 8, I am essentially seeking clarity on the rationale for the wording that is used. Will the Minister of State give a practical example in this regard? I have no major difficulty with the provision but would like the Minister of State to clarify it.

I appreciate that this is a technical and complex area and I thank Deputy Joe Carey for his proposal. I understand his intention in this regard. Section 6 establishes that a service provider cannot access data retained in accordance with section 3 except for the purposes set out in the section. These are long established statutory purposes. For example, they were inserted into the Postal and Telecommunications Services Act 1983 by the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. They were repeated at Part 7 of the Criminal Justice (Terrorist Offences) Act 2005. The only difference between the existing provisions and those at section 5 is that the exception for the purpose of civil proceedings in any court is omitted. Our legal advice is that this is comprehended by paragraph (c), which allows data to be accessed in accordance with a court order.

The data retention directive amends directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Recital No. 26 of the directive allows for the retention of data only to the extent that it is necessary for the provision of the service for the purposes of billing, for interconnection payments and for a limited time. The data retention directive is an exception to that recital in line with Article 15 of the 2002 directive, as amended by Article 11 of the data retention directive.

Deputy Carey's amendment conflicts with the intent of the 2002 directive in particular, as interpreted by European data protection commissioners. Accessing data that can be retained for up to two years for legitimate business needs could refer to almost anything, including billing and marketing material. The exclusions set out in section 5 are fair to all concerned. The legislation does not prevent service providers from retaining data from outside the terms of the Bill provided it is for the reasons permitted under the Data Retention Acts.

Section 2(a) of the Data Protection Act permits data to be retained for the purposes of the legitimate business interests pursued by the data controller or by a third party or parties to which the data are disclosed except where the processing is unwarranted in any particular case by reason of prejudice to the fundamental rights and freedoms of legitimate interest to which the data is subject. Amid all that complexity, the point is that there is not a conclusive argument to amend the existing law, which is essentially a data protection law. Accordingly, we are not minded to accept this amendment, although we accept the thrust of the Deputy's intention. This is concerned effectively with criminal offences as distinct from protection per se.

I accept the Minister of State's explanation and will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 8 not moved.
Section 5 agreed to.
SECTION 6.

I move amendment No. 9:

In page 6, subsection (1), line 24, to delete paragraph (c).

I would like a practical example to show why this provision was considered necessary.

Deputy Carey's amendment seeks to delete the provision whereby data must be disclosed to a member of the Garda Síochána where the latter deems it necessary in the interests of saving human life. This is something to which we would all subscribe. It is not provided for in the directive. It would not be comprehended by the legal base for the directive, but in any case, as we are transposing this by way of primary legislation, we are not restricted as to what is in the directive.

Data retention to save human life can be important in cases where persons go missing and where no crime is suspected. For example, a person might leave a suicide note that if found, could lead to that person being located in time to prevent a tragedy. A mobile phone could easily assist in locating that person. While service providers are always co-operative in such circumstances, both the providers and the Garda would prefer if this was placed on a statutory basis.

A High Court judge charged with reviewing these cases might see a case where information was requested and disclosed, and might ask for the statutory basis for that. We would hate to see a situation in which a human life was at stake and where a manager at a service provider might form the opinion that because there is no statutory basis for giving this information, he might not disclose the information in circumstances where everybody would agree that such disclosure would be highly desirable. The section just provides statutory protection against this, and that is the reason for it.

I accept the Minister of State's point.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 6, subsection (5), lines 41 and 42, to delete all words from and including "within" in line 41 down to and including "made" in line 42 and substitute "forthwith".

If an officer of the Revenue Commissioners, a colonel or a member of the Garda not below the rank chief superintendent phones an ISP or makes a disclosure request by telephone, this amendment seeks to ensure that the request comes in writing immediately. I would have used the word "immediately", but I am advised that I must use the word "forthwith". If a request is made, this amendment ensures that it is backed up immediately in writing. Given the lackadaisical approach to carrying out requests sometimes, a phone call might be made but we might wait up to two months for the subsequent request for disclosure in writing. I just want to strengthen that.

I certainly share Deputy Sherlock's opinion that oral opinion requests be backed up in writing. As we are dealing with important data, we need to make sure these matters are dealt with appropriately. However, the amendment sought would defeat his intention. Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 provides that where a disclosure request is made orally, it must be confirmed in writing within 24 hours. We have been advised by the Garda that this can cause problems, especially at weekends and bank holidays, where the chief superintendent who approved the oral request might not be available for a couple of days after that. For that reason, the person who made the oral request is being given two working days — not two calendar days — to confirm that request in writing.

The important point here is that the request will be confirmed in writing within two working days. The Government submits that two working days is not an unreasonable period and it keeps the paperwork in order. It is a specific time limit and it is very clear to all concerned.

The word "forthwith", which the Deputy seeks to introduce into the Bill, leaves uncertainty as to what would be an acceptable period. If it means "immediately", it must be remembered that the reason the request was made orally was that it could not be made in writing due to the particular urgency of the situation, such as a kidnapping. If it was the case that there was a statutory obligation to confirm an oral request in writing immediately, that could very well mean that the oral request which was not backed up by immediate written confirmation might be an invalid request and defeat the very intention to which Deputy Sherlock referred. Due to the urgency of the situation, the investigating garda simply might not be in a position to put the request in writing to the chief superintendent for some hours. By then, the chief superintendent might be off duty or it might be a bank holiday weekend. We believe that two working days is not an unreasonable period.

Amendment, by leave, withdrawn.
Section 6 agreed to.
NEW SECTION.

I move amendment No. 11:

In page 6, after line 42, to insert the following new section:

7.—A provider shall comply with a disclosure request made to the service provider only where it is technically possible and reasonable in scope in that the request is not so wide as to place an undue cost on the service provider.".

I speak again to the commercial cost to the ISP or telephone company. If a disclosure request comes in and if it is as wide ranging as a chief superintendent determines it should be, then we have to be mindful of the cost to the service provider in yielding up that information.

Before the Minister of State throws the criminal investigation argument at me, I am trying to speak to common sense. We do not want a chief superintendent or an officer of the Revenue Commissioners coming in with a disclosure request that is not focused, not narrow, or not targeted. They may trawl the net as wide as possible. Some degree of common sense should be applied whereby they are mindful of the cost to the ISP or the telephone company.

There is no fund available to the ISPs or the telephone companies to meet the costs of the storage of this data, unlike in the UK. There would obviously be an implied cost to them to provide the data. We effectively want a degree of common sense.

I agree with Deputy Sherlock. The discussion should be based on common sense, as distinct from the previous discussion which we had on effectiveness versus cost.

Does the Minister of State agree with me?

Yes. We should adopt a commonsense approach to this. Before the Bill was drafted and before the European directive came into force, there was a commonsense understanding between the service providers and the investigative authorities on a non-statutory footing. A commonsense approach was adopted that worked really well, albeit without the cloak of statutory protection.

In response to Deputy Sherlock's amendment, the Minister would make the point that it seeks to replace section 7 with an entirely new section. Section 7 currently obliges service providers to comply with a disclosure request. The Minister believes the amendment would seriously affect the ability of law enforcement agencies to seek data for the purposes established by the Bill and would introduce uncertainty into its operation.

At present the data retention arrangements operate within a statutory provision as established under the Criminal Justice (Terrorist Offences) Act 2005 on the basis of goodwill and co-operation between the Garda Síochána and the service providers. This means that both sides use common sense when requesting and supplying data. If the disclosure request proves to be technically impossible there can be no expectation by the Garda Síochána that the service provider will be able to comply with the request. We suggest that this is a given.

The key point is that the memorandum of understanding drawn up between the enforcement authorities and the service provider, which Deputy Sherlock spoke about in depth on Second Stage, will ensure both sides are clear on how the system operates on a day-to-day basis. An amendment such as the one proposed could affect this goodwill by prescribing in legislation what one party may or may not do. There is no penalty for failure to comply with a disclosure request. The reason for this is not to draw the criminal law into a system that works well without it. The system has worked well without the amendment proposed and, for that reason, while accepting where the Deputy is coming from, the Minister is not minded to accept the amendment.

I ask the Deputy to consider one other reason. The oversight mechanisms in the legislation provide for a judge to examine the applications submitted within a given period. It is not unreasonable that a judge might find the applications very wide in scope and question whether they are fishing expeditions. Deputy Sherlock might take this into consideration when deciding whether to pursue this amendment.

The memorandum of association to which the Minister of State refers is only a memorandum of association and it is not on a statutory footing. It is not backed up by law. Section 7 states: "A service provider shall comply with a disclosure request made to the service provider". One of the parties to the memorandum of association is the Internet Service Providers Association of Ireland, ISPAI. Its submission on this legislation states that section 7 is far too wide and unwieldy and takes no account of what is reasonable, technically possible and not very expensive. Its recommendation is that a provider shall comply with a disclosure request made to the service provider only where it is technically possible and reasonable in scope, namely, that the request is not so wide as to be very expensive to service. My amendment is based on the wording of the submission of the ISPAI on this legislation.

I understand what the Minister of State is saying about the memorandum of understanding. Active stakeholders from the telephony and Internet service providers buy into the process. We will make the assumption that their actions arising from this are based on common sense. We are lawmakers and I am a little concerned about this provision. It could be taken advantage of to trawl too widely. The memorandum of understanding may not have any bearing because, once the request is made, there is no recourse to law. If an Internet service provider is met by a request for disclosure, the Internet service provider must adhere.

Yes, the Internet service provider must adhere.

There is no sanction against the service provider for not adhering. I take the subtlety of the point. Ireland is a small country and if I am an Internet service provider and I am phoned by the local chief superintendent asking for certain information, I am hardly going to refuse. If that person was of a mind to trawl the net widely and I found it technically difficult to come up with that information within a reasonable timeframe, that creates problems.

We share the same objective in that nobody wants to have this important power abused. The Government takes the view that this can be dealt with in the context of the oversight by the judge. There must be a primary obligation on the service provider. This is a criminal law item of legislation. The primary obligation to make a disclosure must exist, ultimately irrespective of cost. We both agree that if it is not technically possible, it cannot be disclosed. However, if one opens the door and the Internet service provider considers that the request is unreasonable or places an undue cost in recessionary times, that could frustrate a criminal investigation. That is what we must address in the first instance.

We agreed to have this discussion on the basis of common sense. The proposed purposes of the memorandum shows that it has a basis in common sense and practicality, stating that the purpose of the memorandum of understanding is to promote efficient and effective standards of co-operation between the State and the communications industry in dealing specifically with section 5 of the Communications (Retention of Data) Bill 2009, in clarifying the operating procedures to be utilised by the parties in this memorandum of understanding, detailing clearly the data to be retained by undertakings, protecting the rights of users and assisting in the prevention of serious offences, the safeguarding of the security of the State and the saving of human life. The key point is that the memorandum of undertaking is a non-binding statement between the parties. This is how they anticipate it working in practice. If there is a binding qualification, which Deputy Sherlock's amendment seeks to insert, that opens the door to undermining the intention of the Bill. With regard to abuse and oversight, we agree with Deputy Sherlock's intention but this is best catered for in the oversight mechanisms.

The Minister of State refers to the designated judge and the oversight judge. One must consider the actions of that judge over the past number of years and consider whether that person had the resources to investigate the applications of the Act under which the judge operates. Since the position was created in 1993, it can be argued that this consisted of no more than a single line every year stating that the operation of the Act has been kept under review and its provisions have been complied with. There has been no discussion of the steps taken to keep the operation of the Act under review, whether individual files were reviewed, the volume of surveillance being carried out and whether mistakes were made in carrying out surveillance. This concerns the report on the Criminal Justice (Terrorist Offences) Act 2005, under which there is a designated judge. I presume this provision has the same arrangements. In principle, the oversight judge is a fantastic concept. Whether the judge has the resources to carry out the provisions to which the Minister of State referred is a moot point. I oppose this provision.

I cannot accept the amendment but the points made by Deputy Sherlock are not unreasonable and since we have a shared objective I will give an undertaking to convey them to the Minister. That is without prejudice to Deputy Sherlock pressing the amendment.

Can I interpret from this that the Minister of State will review it for Report Stage?

In fairness, I cannot go so far as to state that. I oppose the amendment but the points made by Deputy Sherlock are not unreasonable and because we have a shared objective it is fair that I convey the points to the Minister for Justice, Equality and Law Reform and I undertake to do so.

Amendment put and declared lost.
Question, "That section 7 stand part of the Bill," put and declared carried.
SECTION 8.

Amendments Nos. 12 and 13 are grouped together but there is an error in the numbering of these amendments. It is correct procedure for the Minister's amendment to be moved first. This is because the Minister's amendment is broader than that of Deputy Sherlock. The amendments will be discussed together but the question on the Minister's amendment must be put first in keeping with correct procedure. It should be noted that acceptance of the Minister's amendment means that Deputy Sherlock's amendment cannot be moved.

Amendment No. 12 not moved.

I move amendment No. 13:

In page 7, lines 6 and 7, to delete "this section does not" and substitute "nothing in section 6 shall”.

Following consultations with the Parliamentary Counsel I can accept the purpose of Deputy Sherlock's amendment. However, for drafting reasons an official amendment has been prepared that makes the same point. I thank Deputy Sherlock for bringing this point to the attention of the Minister and I recommend to the committee the amendment tabled by the Minister for Justice, Equality and Law Reform.

I accept the Minister of State's response.

Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.

Amendments Nos. 14 and 17 are related and may be discussed together by agreement.

I move amendment No. 14:

In page 7, between lines 20 and 21, to insert the following subsection:

"(4) A report under this section shall contain details of the numbers of prosecutions actually commenced as a result of investigations to which requests related, and a detailed justification for any significant excess of numbers of requests over numbers of prosecutions actually commenced.".

The justification for this amendment is that it speaks to a qualitative provision we are trying to work into the legislation which would ensure justification for a request for disclosure to rule against the possibility of requests for disclosures for nefarious purposes. We are trying to ensure that if an innocent person becomes the subject of a disclosure request that a numerical value is put on it in the sense of the quantity of requests made. One can then examine the number of prosecutions and tally up the ratio of requests made to prosecutions. We are trying to ensure a degree of transparency in the provisions under the section. We are also seeking to offset the risk of somebody using the provision in the law for wrongful purposes

I thank Deputy Sherlock for his proposed amendment. Article 10 of the directive obliges member states to provide statistics to the Commission on an annual basis on the retention of data generated or processed under the terms of the directive. The statistics are expressed to include the cases in which information was provided to the competent authorities in accordance with applicable national law; the time elapsed between the date on which the data were retained and the date on which the competent authority requested the transmission of the data; and the cases where requests for data could not be met.

Section 9(5) sets out the information that must be contained in the reports by the Garda Commissioner, the Chief of Staff of the Permanent Defence Force and the Revenue Commissioners. The information precisely reflects the requirements of the directive, no more and no less. The purpose of the statistics compiled under section 9 is that they can be transmitted to the Commission each year for purposes of clarity and consistency as between member states. It would be desirable that each member state compiles and transmits the same classes of statistics to the Commission and that those classes should be as required under the directive. In other words, there should be uniformity throughout the Union on the qualitative information supplied to the Commission for the purposes of the review of the directive in due course.

Section 9 has no other purpose and therefore it is submitted that any statistics compiled under it that are in addition to those required by the directive would have no added value. Under Article 14 of the directive, the Commission is obliged to submit to the European Parliament and the Council of Ministers an evaluation of the application of the directive and its impact on economic operators and consumers. The statistics submitted under section 9 will feed into that evaluation. The evaluation has already commenced and it is possible that the evaluation will result in changes being made to the directive in due course. If that transpires, amendments to the legislation may be needed.

Any changes to the directive might include changes to the statistics that must be compiled and submitted to the Commission by member states. If that transpires, it would be the appropriate time to consider amendments to the statistics regime. At present, we do not know whether changes to the directive will be made and if so whether they will include the compilation of different statistics. When the outcome of the valuation is known would be the time to consider whether any changes to the way statistics are compiled are required. The Deputy's comments and contribution will be noted by my officials who sit on the review body in the European Union. For these reasons we cannot accept the amendment.

These amendments make sense. Amendment No. 17 proposes to include data on "the frequency with which data obtained under this Act was used in the course of a criminal prosecution", and the number of these cases which result in a conviction. There must be meaningful statistics which will allow one to see whether the legislation is working properly. The amendment tabled by Deputy Charles Flanagan makes sense as it would allow one to compile statistics to scrutinise how the legislation is working. I cannot understand why the Minister of State would not accept these amendments.

I thank Deputy Joe Carey. I repeat the points I made to Deputy Sherlock and will add one or two practical examples that the Deputy might consider. It is important to have consistency among member states, all of whom are agreeing to submit qualitative information in this format. I have no doubt that the points made in amendments Nos. 14 and 17 are being noted and if there is a review of the directive, they can be made from an Irish perspective.

Requests for the disclosure of information will not necessarily result in prosecutions. One cannot make a direct correlation between the number of requests made and the question of whether sufficient prosecutions arise from them. I envisage that the Garda will make requests to ascertain whether an individual was in a particular place at a certain time but the absence of a subsequent prosecution says more about vindicating the individual's rights than about possible abuses of the legislation. Requests which are made to save lives would not necessarily result in prosecutions.

To review the directive, the information provided by member states has to be consistent. Therefore, while I note the points made by the Deputies in regard to reviews, I do not believe we should enshrine them in legislation if Ireland is thereby required to submit information which differs from that of other member states.

I strain to understand the Minister of State's logic. He spoke about vindicating individual rights but the amendment highlights a potentially gross disparity between numbers of requests and the ensuing prosecutions.

He referred to reviews of the working of the directive. We seek to protect the rights of individuals in respect of whom disclosure is requested. Under the Bill as it stands, an individual can only find out if a disclosure request has been made by first making a request to the Data Protection Commissioner on the basis that he or she believes personal data has been accessed. We seek to require that a report be prepared which contains details of the number of prosecutions commenced as a result of requests for information. We want quantitative rather than qualitative assessments. Such a provision would offset the risk of somebody in a position of power seeking disclosure for purposes other than the investigation of a criminal, revenue or secret service matter. We are trying to balance the need for data against the rights of the individual.

I concur with Deputy Sherlock. I fail to see why the Minister of State will not accept this amendment. The more statistics available to us, the better. Flaws can be seen in other parts of the justice system where statistical information cannot be collected. This amendment will reveal the effectiveness of the legislation.

I agree with the broad thrust of the Deputies' arguments about the importance of collecting information. I cannot accept the amendment for the reasons I have set out regarding consistency of reports but I will bring the Deputies' views to the attention of the Minister for consideration on Report Stage. Perhaps we can evaluate whether the amendment is practical. Determining whether a prosecution directly ensued from information provided under this Bill may place a disproportionately onerous responsibility on the Garda.

I will consider withdrawing the amendment if I can be assured that we will further discuss the issues arising on Report Stage. I accept the Minister of State's objections in good faith. He acknowledges the aim of the amendment.

If the Deputy withdraws the amendment, he has the right to table it again on Report Stage.

If an amendment is withdrawn on that basis, is it possible for an Opposition member to reintroduce the same amendment on Report Stage?

If the Minister is not disposed to accept it, I would not want to stifle further discussion on Report Stage.

If the Deputies withdraw their amendments now, they are entitled to table them in the same format on Report Stage.

Perhaps that should be done in the absence of an amendment from the Minister.

Amendment, by leave, withdrawn.

Amendments Nos. 15 and 16 are related and can be discussed together.

I move amendment No. 15:

In page 7, subsection (4), line 21, after "submitted" to insert "to the Houses of the Oireachtas".

To make the Houses relevant, Ministers should lay reports before them. I appeal to the Minister of State to consider these amendments.

Given that amendment No. 15 relates to amendment No. 14, I suggest that we treat it in the same way rather than repeating our discussion.

I accept that. I would also be happy to withdraw amendment No. 17.

Amendment, by leave, withdrawn.
Amendments Nos. 16 and 17 not moved.
Section 9 agreed to.
SECTION 10.
Amendment No. 18 not moved.

I move amendment No. 19:

In page 8, subsection (5), line 29, after "fit," to insert the following:

"and with due regard to the rights of any person whose life, bodily integrity or property was sought to be vindicated in the criminal investigation concerned,".

The purpose of the amendment is to ensure some balance in the question of how to deal with a minor breach of section 6. If there is a breach, the user will be notified and may be compensated but if any prosecution is to be quashed as a result of destruction of the evidence on the orders of the Data Protection Commissioner, there must be consideration of the rights of the victim concerned. This is a qualitative look at the legislation to ensure that it does not militate against people who are completely innocent and law-abiding citizens. They should have some degree of recourse.

I have a detailed speaking note on this point but to sum it up, my officials have consulted with the Attorney General about this amendment. If there are no difficulties with the intent of the amendment with regard to the vindication of a person's rights, I will ask the Parliamentary Counsel to prepare an appropriate official amendment that the Minister will submit on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 8, line 42, to delete subsection (8).

The clause "A decision of the Referee under this section is final" is very unusual. Every process should have provision for an appeal so will the Minister come up with some proposal for that before Report Stage? If he does not, Fine Gael will develop its own proposal.

Subsection (8) states that a decision of the referee under section 10 is final. The appointment and role of the complaints referee was established in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. In that Act the role related solely to the interception provisions. Part 7 of the Criminal Justice (Terrorist Offences) Act extended the duties of the complaints referee to the retention of telephony data under that Act. The Criminal Justice (Surveillance) Act 2009, enacted just a few months ago, further extended the referee's duties to the surveillance provisions in that Act.

In all those Acts passed by the House the decision of the referee is final. No complaints or problems have arisen with that policy and this Bill proposes to follow that practice. Under section 10, a person who believes that his or her data has been the subject of a disclosure request can apply to the referee for an investigation into the matter. It is not a function of the referee to investigate whether a disclosure request has been made and to inform the applicant accordingly. The role of the referee is to investigate whether a disclosure request has been made as alleged, and if so, whether the provisions of section 6 have been complied with.

In other words, the referee must investigate whether the disclosure request was made for the purposes set out in that section, that it was made in writing except in cases of exceptional urgency and that administrative procedures were followed. The referee will not inform the applicant if a request has been properly made in accordance with section 6 or if no request has been made. To be obliged to do so would give rise to fishing expeditions and would have serious consequences for criminal investigations and State security.

The decisions the referee must make under section 10 are whether section 6 has been contravened, whether to direct the destruction of the data and whether to order the payment of compensation. To provide for an appeal on a decision that section 6 has not been contravened would allow a person to find out in court whether a disclosure request has been made in the first place, and that would have the same effect as a fishing expedition in practice.

The referee is independent and has statutory rights to access and inspect all official documents relating to the application. The Minister considers the original decision in 1993 to provide that a decision of the referee would be final was made for a good reason and the Minister is not prepared to accept that it would not apply in one circumstance, that is, for disclosure requests alone.

In not accepting the amendment I point out that the finality of the referee's decision does not affect the constitutional right of a person to apply for a judicial review of the right to fair procedures in respect of the making of that decision. For that reason we cannot accept the amendment.

I am disappointed with the Minister of State's response as every process should have some sort of appeal mechanism. How practical and effective is the complaints mechanism in this legislation? I am not happy with it. Under the Bill an individual can only find out if data relating to him or her has been accessed on foot of a disclosure request. There should be a come-back mechanism. The referee must be questionable and for that reason we will come forward with a proposal on Report Stage.

I wish to ask two questions of the Minister of State with regard to the current statute and the referee. Has there been a case where the referee has investigated under the present statute?

There are a number of them. To which statute is the Deputy referring?

The Minister of State indicated in his initial response that there is no appeal mechanism for the current procedures regarding the referee. I am trying to find out if there have been complaints under the current structures in the existing statute. Are findings under the existing statute referred to the Taoiseach? It seems unusual for a provision to refer to the Taoiseach rather than anyone else.

The provision did leap out at me when I first read the Act for reasons we might all be familiar with in this House. There are three separate pieces of legislation where there is a relevant provision. These are the Interception of Postal Packets and Telecommunication Messages (Regulation) Act 1993, the Criminal Justice (Terrorist Offences) Act and the Criminal Justice (Surveillance) Act. I do not have information on the number of complaints that have been made but I will undertake to get it if it is readily available.

In respect of any complaints that may have been made, the referee has not made any awards of compensation for breaches of the procedures under the relevant section of those Acts. I will undertake to try to ascertain the number of complaints.

I am not looking for the name and address of the referee but what type of individual would take on that role?

It is a circuit court judge, in so far as one can categorise the type of person that would be.

I have previously raised the next matter. Considering the reports which have been published under those Acts, they have quite literally consisted of one or two lines stating that the provisions of the Act have been adhered to. They have been signed by the relevant person. The danger is that this will be a complaints procedure in name only and is not backed up by any real or substantive provisions.

The Minister of State and I both know he is lessening the provision for an innocent person against whom a disclosure request is made, and decreasing his or her chance of recourse. It is weak legislation; that is the point I am making. I agree there must be data retention, as we all do, but the provisions allowing for recourse for somebody who is innocent are weak as water.

The fact that there have not been a large number of complaints suggests the Act is operating effectively. In addition, we entrust a large number of functions to judges, whether they are High Court or Circuit Court judges. We do this for a reason: they usually have long, day-to-day experience of adjudicating in contentious matters. By virtue of that experience alone, they have the appropriate skills to deal with such issues.

My final point is a slightly political one. If we were to set up another layer of bureaucracy and perhaps another appeals board, or quango, as they are often described, either Colm McCarthy or the Fine Gael Party might have a thing or two to say about it. We are trying to cut down on such things at this stage.

I do not share the Minister of State's joke. We will introduce an amendment on Report Stage; perhaps the Minister will consider it when he sees it in print.

Amendment, by leave, withdrawn.
Section 10 agreed to.
Section 11 agreed to.
SECTION 12.

I move amendment No. 21:

In page 9, between lines 43 and 44, to insert the following subsection:

"(5) The Data Protection Commissioner, if he considers is desirable to do so, may communicate to the designated judge information relevant to such designated judge's functions under this Act and may, on request, otherwise assist the designated judge in the discharge of their functions.".

This is an issue of transparency. The submission from the Data Protection Commissioner welcomed the provision in section 12(4) that a designated judge may communicate with the commissioner with regard to his functions. The commission brought to the attention of the Department of Justice, Equality and Law Reform the potential difficulty in communicating with the designated judge with regard to his functions, as there is no express provision for him to do so. The published Bill has not resolved this issue. To remove all doubt, the commissioner suggested that the subsection in the amendment, or something with the same general intent, be added. That is the thrust of our amendment. It is about data protection. I do not know the Minister of State's views on this issue.

We will hear the Minister's response when we come back as there is a vote in the Dáil.

That is entirely a matter for the Chairman and the committee; however, I anticipate not having a debate on this for reasons I can outline very quickly, and it may be possible to conclude.

We will come back anyway, so rather than rushing through it now we will deal with it then.

Sitting suspended at 4.25 p.m. and resumed at 4.50 p.m.

We are debating amendment No. 21. Deputy Carey made his contribution and I ask the Minister of State to respond.

I thank Deputy Carey for the amendment. The Date Protection Commissioner's office was consulted about this proposal which is relevant to the functions of the Data Protection Commissioner. If no problem is identified with the amendment I shall ask the Parliamentary Counsel to draft an amendment giving effect to the issue raised by Deputy Carey in his amendment.

I withdraw my amendment in favour of what the Minister of State proposed and I thank him for agreeing to the content of the amendment.

Amendment, by leave, withdrawn.
Section 12 agreed to.
SECTION 13.

Amendments Nos. 22 and 23 are related and may be discussed together.

I move amendment No. 22:

In page 9, line 45, after "repealed" to insert the following:

"and where any data retained or accessed thereunder are adduced in evidence after the passing of this Act, such data shall be deemed to have been lawfully retained or accessed at all material times notwithstanding such repeal".

In order to be off assistance I accept the Minister's amendment and am happy to withdraw mine, if that is in order.

We are discussing the two together so perhaps we will hear what the Minister of State has to say.

Deputy Sherlock's amendment seeks to ensure that any data retained or accessed under Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 is deemed to have been lawfully retained or accessed. The purpose of the amendment is highly desirable. As the Bill stands, subsection 2(a) of section 3 sets out the periods of retention and when those periods commence. In the case of telephony data, if such were the subject of a data retention request under the 2005 Act, the period of retention commences on the date before the commencement of this Act on which the data were first processed by the service provider. In other words, if a piece of telephony data were processed under the 2005 Act on 1 January 2009, the two-year retention period for that data commenced on that date.

Following consultations with the Parliamentary Counsel I am very satisfied that it would be highly desirable to include a provision along the lines suggested by Deputy Sherlock. However, the Parliamentary Counsel has drafted a similar amendment tabled in the Minister's name which I commend to the committee. I thank Deputy Sherlock for drawing the Minister's attention to this issue by tabling his amendment.

Amendment, by leave, withdrawn.

I move amendment No. 23:

In page 9, after line 45, to insert the following subsection:

"(2) Notwithstanding the repeal under subsection (1), data that were the subject of a data retention request under Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 before that repeal may be adduced in evidence in proceedings conducted after

that repeal subject to the provisions of this Act applying and having effect.".

Amendment agreed to.
Section 13, as amended, agreed to.
Section 14 agreed to.
SCHEDULE 1.

I move amendment No. 24:

In page 10, paragraph 4, line 10, to delete "1995" and substitute "2005".

This corrects an error in the collective citation by including a reference to section 1(4) of the Proceeds of Crime (Amendment) Act 2005.

I thank Deputy Sherlock for moving the amendment. I must provide a very technical response and I draw the attention of Members to that fact. After Deputy Sherlock brought this to the attention of the Minister, he consulted the Parliamentary Counsel. On the face of it, it appeared to raise a valid point. The proper citation, as correctly pointed out by the Deputy, for the Prevention of Corruption Acts is the Prevention of Corruption Acts 1989 to 2005. However, the reference to section 1 of the Acts changes everything. It is not the intention to allow data to be disclosed for the investigation of every offence under the Prevention of Corruption Acts. The only offence in respect of which such data can be disclosed under this reference is at section 1 of the Public Bodies Corrupt Practices Act 1889. This section made it an offence for any member, officer or agent of a public body to corruptly solicit, receive or agree to receive any gift, loan, fee, reward or advantage. The maximum custodial penalty under section 2 is two years' imprisonment.

Sections 1 and 2 of the 1889 Act were amended by section 38 of the Ethics in Public Office Act 1995. It raised the maximum custodial penalty to seven years. This means the relevance of the inclusion of the Prevention of Corruption Acts in the Schedule is for persons being investigated for offences under section 1 of the 1889 Act, alleged to have been committed before the commencement of section 1 of the 1995 Act. For this reason, the reference to the Prevention of Corruption Acts, that is, section 1 of the 1889 and 1995 Acts, is, in fact, correct, although there is at least one other correct way it could have been drafted.

However, it would not be correct to advert to the reference in the Prevention of Corruption Acts to any Act after the 1995 Act because the amendment of section 1 of the 1889 Act was in the 1995 Act. I realise the point raises very technical issues of drafting. The proposed amendment seemed correct or at least raised a very valid point. However, the Parliamentary Counsel, who did not thank Deputy Sherlock for raising the matter, is convinced that the reference in the Bill is correct. I would be pleased to make my note available to Deputy Sherlock if it is of assistance to him because the matter is complicated.

I thank the Minister of State for his assistance in this. It was not my intention to deliberately make life difficult for the Parliamentary Counsel but we believed the matter was significant.

Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Schedule 2 agreed to.
Title agreed to.

I thank the Minister of State and his officials for attending and I thank members of the committee for their co-operation.

Bill reported with amendments.