Minister Flanagan should implement the recommendations of the Murry Report.
6 December 2018
Spokesperson on Justice, Children and Youth Affairs
Labour Spokesperson for Justice, Sean Sherlock TD, has called on Minister Flanagan to act swiftly and implement the recommendations of the Murry Report.
Commenting today Deputy Sherlock said:
"The High Court’s decision in the Graham Dwyer case this morning was all too predictable. Neither the Government, the Gardaí nor in particular the Justice Minister Charlie Flanagan can claim to have been taken by surprise by this, or that they need more time to consider the implications of this judgment.
"The High Court found that the law that requires data from mobile phones to be retained and allows it to be accessed by Gardaí, is in breach of EU law and of the European Convention on Human Rights.
"We have known this was coming for years now. When former Chief Justice John Murray was commissioned in January 2016 to examine the legislative framework for accessing the phone records of journalists, he decided off his own bat to widen the terms of reference he had been given.
"This is because our 2011 laws on phone data retention were implementing an EU Directive, but this Directive was declared invalid by the EU Court of Justice back in 2014.
"Judge Murray submitted his report to the Minister for Justice in April 2017. That report sat on the desk of two Justice Ministers in succession, unpublished, for six months.
"I called twice for the report to be published by Charlie Flanagan. I was told that the report set out a ‘very detailed and comprehensive analysis’ of the law in a ‘complex and evolving area’, the report had been forwarded to the Attorney General for further consideration and advice, the Minister had now received detailed advice, which was being considered. And so on.
"No doubt we will be given the same reasons for even further delay now, about the need to carefully consider today’s High Court judgment.
"While the Murray report had been initially commissioned to look only at issues about access to the communications data of journalists, Judge Murray said that the statutory framework in fact established ‘a form of mass surveillance of virtually the entire population of the State, involving the retention and storage of historic data, other than actual content, pertaining to every electronic communication, in any form, made by anyone and everyone at any time.
"He wrote that ‘a vast amount of private information pertaining to the personal communications of virtually everyone in the State is now retained without the consent of those affected in databases maintained by each private service provider in fulfillment of its statutory obligations. This is a vast store of private information touching every aspect of an individual’s private and professional communications profile.
"The judge pointed out that not only had the EU Directive been struck down by the European Court of Justice in 2014 but that a second ECJ case of 21 December 2016 has held that NO system of automatic and wholly indiscriminate retention of private communications data could be reconciled with European law.
"The judge firmly concluded in his report that these two EU court cases ‘effectively sweeps the ground from under wholly indiscriminate mass surveillance schemes of the kind established by the Communications (Retention of Data) Act 2011.
"Charlie Flanagan has had the benefit of that report and of Judge John Murray’s clear and unequivocal advice since April 2017 – which is 20 months ago. The Minister should also progress his Communications (Retention of Data) Bill, which has been five years in preparation but which has yet to be published."