'Rushed' legislation on new surveillance powers 'vulnerable to legal challenges'

A significant feature of criminal investigations was the use of electronic traffic and location data to provide investigative opportunities to gather evidence. Picture: Larry Cummins

The Government’s “rushed” draft legislation on
controversial surveillance powers make it “vulnerable to legal challenges”, the Oireachtas Justice Committee has warned.

The committee said this will have “serious consequences” for future court cases.

A top garda told the committee that, while the bill is legislating according to European court rulings, typical investigations into serious crime will suffer under the provisions.

These rulings prohibit the blanket retention of people’s communications history by providers to enable police, investigating a serious crime, to access a suspect’s history records.

The committee strongly criticised the Government for announcing approval of its new bill on May 31 despite repeated indications over the last eight years that the legislation was problematic.

In addition, the committee said the draft bill was only sent before it two weeks before the Dáil breaks for the summer.

The committee held hearings last week on its pre-scrutiny of the General Scheme of the Communications (Retention of Data) Amendment Bill 2022.

It heard from some legal and digital rights experts as well as senior gardaí, Department of Justice officials and the Data Protection Commission.

The Government is rushing the amendment through the Oireachtas following the ruling of the European Court of Justice (ECJ) last April in the Graham Dwyer case, which found that general retention and accessing of communication data for the investigation of serious crime breached EU laws.

Scrutiny report published

Over the weekend, the committee published its scrutiny report along with recommendations for Justice Minister Helen McEntee.

“The Committee was concerned that the Government only gave approval to draft the Bill on May 31 of this year, despite previous indications that the area was problematic at a legislative level,” the report said.

“Such indications include the 2014 annulment of the European Data Retention Directive, the High Court appeal in 2019 which launched the current Dwyer hearings, the preliminary hearing of the [ECJ] in the last year and even the final decision of the [ECJ] in April of this year.” 

The report said notwithstanding that, the bill only came before the committee a fortnight before the Dáil recess.

“The Committee is concerned that the rushed process and lack of mandatory consultation will lead to a Bill that is vulnerable to legal challenges, which will have serious consequences for future cases," it said.

The General Scheme, published on June 21, allows for general and indiscriminate retention of data on national security grounds, where approved by a designated judge.

It will also allow for a system of preservation and production orders to access “specified” communications data for both national security and the investigation of serious crime, where permitted by an authorising judge.

The committee’s report calls for a “sunset clause” on the General Scheme and wants much wider consultation to take place when more comprehensive legislation on accessing people’s communication data is published later in the year.

In addition, the report recommends:

• A Data Protection Impact Assessment be carried out before the full bill is published;
• Certain categories of citizens should be given separate rights, for example journalists, to ensure sources are adequately protected;
• A code of conduct for telecom service providers.

The committee said it looked forward to further engagement and debate on the bill during its passage through both Houses.

In his covering letter to the report, committee chair, Fianna Fáil TD James Lawless, said: “The committee acknowledges the need to strike a balance within the bill of ensuring that citizen’s rights to be free of State surveillance are upheld, while ensuring An Garda Síochána is equipped to carry out its duty of investigating serious criminal offences. 

"The committee is concerned that the rushed process of progressing this legislation will result in this balance not being achieved.” 

He said members also noted with “some concern” a view from the Garda Commissioner’s office that the investigation of serious criminal matters would be impeded by the measures within the bill when enacted.

Protecting national security

In his submission to the committee, Assistant Commissioner Justin Kelly, head of Organised and Serious Crime, said the force welcomed the amendments, particularly in relation to protecting national security.

“Unfortunately, from the perspective of investigating serious crime, significant difficulties are foreseen,” he said, accepting that the bill must conform to ECJ rulings.

He said a significant feature of criminal investigations was the use of electronic traffic and location data to provide investigative opportunities to gather evidence.

The commissioner also said there was “a positive obligation” on foot of rulings by the Superior Courts in Ireland, mandating An Garda Síochána (AGS) to seek out and preserve all evidence, showing the guilt or innocence of suspects.

“Under the scheme of the bill, whilst AGS will be able to utilise preservation and production orders to secure evidence, this process will be forward-looking and not retrospective,” the police chief said.

This will cause significant difficulties in criminal investigations, which usually commence post incident.

He said this restriction does not arise in relation to matters of national security.

In relation to serious crime, he said the bill will be of benefit “in advance” of communications by members of an organised crime group — but said this was “rarely the case”.

“In the norm, many of our criminal investigations look back into the past and utilise post incident analysis,” he said.

“This will no longer be possible and this will be a significant challenge for criminal investigations.”