Dáil Éireann Debate, Thursday - 10 December 2020
5. Deputy Martin Kenny asked the Minister for Justice when legislation will be brought forward to deal with the 2014 ruling by the European Union Court of Justice, ECJ, which held that legislation relating to the retention of phone records and other personal data amounted to mass state surveillance; and if she will make a statement on the matter. [42655/20]
View answerI wish to raise the issue of the retention of phone records and other personal data, the ruling of the European Court of Justice in 2014 and the need for legislation to deal with this issue. As all present are aware, there have been appeals on these grounds in several cases before the courts. It is a difficult situation that needs to be addressed as quickly as possible. It is clear these issues could put some convictions in jeopardy. Several conviction appeals currently before the courts and other cases to come are looking at the ruling of the ECJ as a possible get-out clause. The matter needs to be dealt with urgently.
As the Deputy will be aware, the Court of Justice of the European Union struck down the EU data retention directive in 2014 on the basis that it constituted a disproportionate interference with the rights to privacy and data protection enshrined in the Charter of Fundamental Rights. Since that time, the court has continued to deal with a range of cases referred to it in what is a complex and continually evolving area of law.
The implication of the judgments of the court with regard to data retention regimes presents significant challenges not just for Ireland, but also for other EU member states that are grappling with the implications for law enforcement services in the investigation of crime. Ireland is fully engaged in that work. Conscious of the role played by telecommunications data in the investigation of serious crime and in safeguarding national security, a large number of member states, as well as the European Commission, have intervened in European court cases which were challenging national data retention regimes.
Although criminal investigations are multifaceted and involve many avenues of inquiry and investigation, access to telecommunications data has become ever more important for all authorities responsible for the detection, investigation and prosecution of crime and for safeguarding the security of the State. Ireland has intervened robustly before the European Court of Justice to highlight the potential implications of the court judgments and to defend the need for such information to be made available to law enforcement through appropriate national data retention regimes. However, it is important to note that Garda authorities continue to investigate all forms of serious crime, utilising the available legislative powers.
It is intended that a revised general scheme of the communications (data retention and disclosure) Bill, drafting of which is well advanced, will replace the Communications (Retention of Data) Act 2011, taking account of the 2014 ECJ ruling, as well as more recent rulings. Our intention will be to provide the most effective crime prevention and investigative regime possible, having regard to the changing legal environment. The judgment of the Supreme Court, following its referral to the ECJ, which is expected early in 2021 will be examined carefully by officials in my Department in conjunction with the Office of the Attorney General.
I understand that there is a level of delicacy with this and that we must wait and see what emerges from the Supreme Court, but I am glad to hear that work is being done and preparations are being made to make some advance in this regard. It is a serious issue for many cases around the country and, indeed, for the Garda when it is trying to trace where people have been or what has happened in regard to serious crime. We are all aware of some cases historically in which this was not, perhaps, the evidence that led to convictions but it certainly put people in the places where gardaí were able to look at them in more detail and to prosecute the case in a way that secured a conviction. Some of them were very serious cases. The need to ensure that the Garda would have access to such records when appropriate, and that is the important point, is vital. We all know people have a right to privacy and a right to go about their daily business without the fear that some type of big brother is watching them. There is a balance to be struck here and the balance clearly has to take account of the rights of people to ensure they are safe in their communities. Having adequate legislation on this would be vital to ensure that happens.
There is a fine line. Obviously, we want to ensure we protect people's privacy, but also that An Garda Síochána has the powers to do its work. It is important that we provide the Garda with the technical expertise, the financial support and the legislative underpinning it needs to do its work. The Garda is continuing to do that work. I have some of the figures relating to that Act. The Garda made 13,545 data access requests to telecommunications companies in 2018 and 8,110 were made in 2019. While the Garda might not be able to do this in as easy a manner as, perhaps, previously it is continuing to do its work. The priority now is to ensure we have the best possible legislation to underpin the work of the Garda.
The biggest challenge has been that since the ruling in 2014 there have been a number of clarification requests not just from this country but also from other member states and the responses to those requests have created more questions. The initial ruling was quite wide-ranging so the requests and the responses have created more questions, which has made it difficult to draft this legislation. However, it is at an advanced stage and the ruling early next year will be important.
I appreciate that. It is vital that the Garda Síochána has access, when appropriate, to carry out its work. The other aspect of this that must be examined is social media and what happens there. I know there is some preparation to examine the possibility of hate crime, hate speech and so forth. Again, we have to be very careful about this because people have a right to freedom of speech. We certainly must be very cautious about this and I understand that.
To return to the issue of data retention and being able to access data, particularly in cases of serious crime, it is vital that we have the legislative underpinning to ensure it is there and that it can happen, when appropriate. Equally, people must not feel that they are in some way under surveillance for no reason. That is the balance that must be struck. When the Supreme Court brings forward its judgment, it is important that we move into a position where we can strike that balance and come to a conclusion on this matter.
We all regret that this has taken so long and has been ongoing for a number of years. Other member states that have already introduced legislation in their jurisdictions based on the clarifications I just mentioned have had to change that legislation again. It is important that when we introduce and pass our legislation, it is the best it can be and that it provides absolute clarity for An Garda Síochána to allow it to do its work. That is our intention. The Bill is well advanced at this stage. The ruling next year will be important and we will incorporate it in the legislation. We have asked for this particular clarification so, hopefully, it will answer our questions to allow us to finalise this work.
The Deputy mentioned social media and other areas. One of the other parliamentary questions is about white-collar crime and other powers for An Garda Síochána. We are bringing forward other legislative measures which allow for arrest warrants, especially for digital devices, and other supports to allow the Garda to do its job to the best of its ability. It is important that we introduce and implement this legislation as quickly as possible and provide support to the Garda. It already does wonderful work, but it would benefit from this additional support.
