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'Illegitimate' data law still stands as EU was not notified of new act rushed through this year

Irish Examiner logo Irish Examiner 04/12/2022 Cianan Brennan

A new law allowing communications data to be retained could be dead on arrival because of Government failure to commence it, six months after it was rushed through the Dáil.

The Communications (Retention of Data) (Amendment) Act 2022 was passed by the Dáil with minimal scrutiny before the Oireachtas summer break in June, with then Justice Minister Helen McEntee stressing the urgent nature of the situation.

Ireland’s previous data retention law, dating from 2011 and ruled illegitimate by the European Court of Justice repeatedly since 2014, is especially relevant at present given the ongoing appeal by Graham Dwyer. 

The convicted murderer is arguing his case should have been thrown out as information that convicted him was gathered unlawfully. That 2011 act remains the only law governing this area, as the 2022 act has not been commenced.

European Commission not notified

A further complication has now arisen. Under the Technical Regulation Information System (TRIS), EU members must send laws which could affect the European single market to the European Commission  before they are enacted in order to reach consensus among the bloc.

The Department of Justice has now told the Irish Examiner that the law was never submitted to the EC.

“The Communications (Retention of Data) (Amendment) Act 2022 was enacted in July of this year,” a spokesperson said.

“The act is an urgently required reform of the law on data retention and it is intended to commence the Act at the earliest possible date." 

Justice Minister Helen McEntee said there was an urgent need for the 2022 act. However, experts in the field point out they'd been calling for new legislation for the best part of a decade. Picture: Conor Ó Mearáin © Provided by Irish Examiner Justice Minister Helen McEntee said there was an urgent need for the 2022 act. However, experts in the field point out they'd been calling for new legislation for the best part of a decade. Picture: Conor Ó Mearáin Justice Minister Helen McEntee said there was an urgent need for the 2022 act. However, experts in the field point out they'd been calling for new legislation for the best part of a decade. Picture: Conor Ó Mearáin

The spokesperson said: “The department can confirm that, to date, a notification under the TRIS regime has not been made in respect of the Communications (Retention of Data) (Amendment) Act 2022.” They said the department is considering whether or not certain exclusions to TRIS may apply, and “whether any further steps are necessary”.

However, the European Commission confirmed to privacy advocacy group Digital Rights Ireland in July that, because the new law “was not notified to the Commission and is in fact not in a draft stage anymore, the Commission and the member states are not in the position to issue any reaction” to it.

Under EU law, if legislation should have been submitted via TRIS and wasn’t, it is rendered null and void.

The department has not replied to a query as to what it will do if it is found the law should have been submitted to TRIS at the time of publication.

Rushed law was many years late

Successive governments have come in for harsh criticism for failing to update the 2011 act for nearly a decade, despite it having been declared unlawful on at least three occasions by the European courts.

The Department of Justice’s decision to fast-track the new act as an emergency priority last summer — after having failed to act upon it for nearly 10 years — was heavily criticised by privacy experts.

Privacy lawyer Simon McGarr said that in rushing the legislation after years of inaction the Government had ignored “the warnings of legislators and commentators that such a truncated debate was likely to produce more problems, not solve them”.

The confirmation that the Department of Justice failed to apply for the TRIS process explains why that ‘emergency’ act has never been commenced. 

“Meanwhile, Ireland continues to apply a mass surveillance data retention regime under the old Act that everyone acknowledges is illegal, and the Government has ensured that the uncertainty around the replacement of that Act will continue into 2023,” Mr McGarr added.

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