Plans to fast-track law to deal with fallout from Dwyer appeal hits hurdle

Justice Committee has refused request from Minister to waive pre-legislative scrutiny of the legislation

Plans to fast-track emergency legislation to deal with the fallout from convicted murderer Graham Dwyer’s successful appeal to the European Court of Justice (ECJ) on Garda access to mobile phone data have hit a hurdle.

There was an expectation that the Communications (Retention of Data) (Amendment) Bill 2022 could be debated in the Dáil on Friday, but this is now not likely to take place until next week. The Oireachtas Justice Committee has refused a request from Minister for Justice Helen McEntee to waive pre-legislative scrutiny of the legislation as part of efforts to have it passed by the Oireachtas before the summer recess.

A Department of Justice official provided at briefing on the Bill to a private meeting of the committee on Monday. However, the committee chairman, Fianna Fáil TD James Lawless, wrote to Ms McEntee after that meeting saying “it was the strong view of the committee that, given the complexity and sensitivity of this legislation, it was not possible to perform sufficient scrutiny in the compressed timeframe suggested”.

The committee is now seeking to arrange for witnesses to attend a meeting on Thursday as it seeks to scrutinise the legislation. Invitations have been issued to the Garda Commissioner, the Data Protection Commissioner and the Irish Council for Civil Liberties among others.

“This is very significant and complex legislation which the committee felt should be given due diligence,” Mr Lawless told The Irish Times. “It will have far-reaching implications for both policing, law and order and also individual freedoms and privacy.”

He added that the committee intends to process the legislation in an accelerated timeframe, but said “for us to merely rubber-stamp something as complex as this would be a dereliction of duty”.

Another committee member, Dublin South Central TD Patrick Costello, remains concerned that the pre-legislative scrutiny process will be truncated. He said the Bill deals with “huge issues” related to data protection, and added that he did not see how it would be possible to have “meaningful” pre-legislative scrutiny of the Bill in the time available.

Dwyer was convicted in 2015 of murdering Elaine O’Hara. His conviction relied heavily on mobile phone data but the European Court of Justice ruled in April that Irish rules on the retention and access by gardaí of mobile data were in breach of European law.

An appeal by Dwyer against his conviction is likely to be heard in the autumn.

Ms McEntee has said the Government will move to ensure gardaí do not have “their hands tied behind their backs” and it is expected the emergency legislation will provide for access to mobile data for gardaí where it is required for an investigation.

A Department of Justice spokesman said the Bill was approved by Cabinet “subject to  technical drafting adjustments to be completed shortly.”

He added: “Publication of the Bill is subject to further engagement between the Minister and the Justice Committee in relation to her request for a waiver of pre-legislative scrutiny of the related General Scheme.”

The General Scheme - or heads of the Bill - is an outline of the measures to be contained in the legislation and it was what the departmemt official briefed the committee on during Monday’s meeting.

The spokesman said the department will attend a meeting of the committee on Thursday.

Cormac McQuinn

Cormac McQuinn

Cormac McQuinn is a Political Correspondent at The Irish Times