Helen McEntee

In April, the Grand Chamber of the Court of Justice of the European Union (CJEU) held that the “general and indiscriminate” retention of electronic communications data for the purpose of combating serious crime is precluded by EU law.

The CJEU ruling followed a referral by the Irish Supreme Court in February 2020, which was hearing a leapfrog appeal from the State against a High Court ruling in December 2018 which agreed with Mr Dwyer that the Communications (Retention of Data) Act 2011 was incompatible with EU law.

Ministers have now agreed to amend the 2011 Act, though say the proposed legislation “is without prejudice to the State’s current appeal to the Supreme Court of a High Court ruling related to the Act”.

New legislation will amend the current rules on general and indiscriminate retention of data from telephony and internet communications for national security purposes, and will introduce new access provisions including two new types of orders which will strengthen the capacity of An Garda Síochána to secure and access all forms of electronic data for the purpose of specific criminal investigations or proceedings.

The new law will introduce “preservation orders” requiring the preservation of specified electronic data in connection with specific persons, locations or other indicators (e.g. mobile phone numbers). A preservation order will not in itself require the granting of access to data.

Separate “production orders” will require the gathering and submission of specified data in a person’s possession or control to An Garda Síochána, and may include data which may already be the subject of a preservation order.

The Department of Justice said a general scheme will be brought to ministers “in the coming weeks” with the aim of passing the legislation by the summer. Wider reforms in the area of data retention will be brought forward later in the year.

“The government’s decision today allows for work to go forward to reflect the impact of judgments of the European Court of Justice,” justice minister Helen McEntee said.

“While I do not want to comment on the specifics of cases which are before the courts, I have been clear that I do not want a situation where An Garda Síochána have their hands tied behind their backs.

“Access to telecommunications data has become ever more important for the detection, investigation and prosecution of crime and for safeguarding the security of the State.”

She added: “We need to acknowledge that gardaí require access to data to do their jobs and keep us safe, and that there are occasions when the interests of public safety, fighting crime and national security must override the absolute right to privacy.

“There should always be safeguards and protections when it comes to accessing data, but we must not allow the balance to shift too far away from keeping people safe and fighting crime.”

“I intend to bring a general scheme to government for approval in the coming weeks, after which I will announce further detail of the intended legislation.”