George Lawlor: Protect Legal Privilege in e-evidence Bill

Minister, as we all know this is an important bill, it deals with the most serious of questions, how we keep our citizens and those of our neighbours safe, how we cooperate with our European neighbours, how we ensure that the rights of our citizens are protected. I know Minister that you have publicly stated this bill is an important step in demonstrating Ireland's commitment to implementing the EU package and improving access to digital evidence for serious crime investigations and of course how we make sure that the digital world is one where laws are enforced, the rights are safeguarded and the tech joints upon whom so much of modern life depends play their part and are held accountable. I understand of course that the rush to legislate is not unusual for EU deadline driven legislation, we face similar time pressures in the past when implementing EU directives or regulations with fixed application dates. But the seriously reduced opportunity to engage with this bill in this house is both unfortunate and I suppose somewhat disrespectful to the elected members here, given this this was first endorsed in Europe in 2023 it really does beggar belief that we couldn't have had far greater dialogue on this before now. The bill puts in place an entirely new office and staff to enforce its rules, that body the department has made clear will grow to a substantial size and carry a significant budget with it. Ireland is home to many of the world's biggest tech firms and digital services and can expect to have a large workload arising from these EU rules. We can be leaders here but it is absolutely vital that we get this right from the off. We need to be sure that the procedures and the bodies we put in place to carry this work out will be properly resourced and given not just enough powers but the right powers. In short, this is a bill that deserves our close scrutiny in these houses. The questions at play here are simply too important to risk getting it wrong. International cooperation on law enforcement is absolutely essential, particularly in the digital space. Digital evidence often doesn't respect borders and police forces and enforcement bodies simply can't afford to operate in national silos when it comes to online evidence. The European Union is obviously in a unique position globally to put the mechanisms in place to make sure that its national and local law enforcement bodies cooperate in this area. This is the idea that was at the heart of the EU's e-evidence package and it is the idea at the heart of this bill. It's a sensible and indeed welcome idea however we in the Labour Party have some questions about this legislation that we will aim to raise as the bill progresses through the Oireachtas. I want to first raise the issue of privileged material. It's an issue that has come up repeatedly in this house in recent times and repeatedly the government has been slow to recognise the importance of protecting legal or journalistic privilege when bringing forward legislation. That has been particularly true in relation to legislation coming from the Department of Justice. Section 32.3 and 4 of this bill allows for the compelled disclosure of potentially privileged material. This is subject to a subsequent High Court determination with a 30-day window to apply. But the key word here is subsequent. That 30-day window runs from the date of disclosure or taking of possession. But there is no explicit ban or any kind of interim restraint on the use of that privileged material while the court application is pending. We believe this is essential and have tabled amendments to make clear on the face of the bill that where an authorised officer or an adjudication officer compels disclosure or takes possession of a record that may be subject to legal privilege, they cannot use, copy, communicate or act upon that record before the High Court's determination. Those amendments will be debated at tomorrow's committee stage and I hope the government will look closely at this issue and accept them. This is common sense. Legal privilege needs to be protected throughout the process. The government has recognised this by including section 32 in the first place. But we need to make sure that there are no potential loopholes here. We cannot have a situation where legislation potentially allows for the free usage of material that might later be ruled privileged by the High Court. We also have serious questions about the resourcing of the new office of the Director of Criminal Justice International Cooperation and the potential costs associated with that. These were raised at pre-legislative scrutiny and I have yet to see a convincing answer from the government on it. Ireland is home to a very large number of digital service providers and so can expect a larger number relative to our size of requests than other member states. How is the government going to ensure that the new office can handle this large volume of work without being to the detriment of the current workings of the Department of Justice? We've heard that the expectation is that this office could grow in size to 150 staff. It will be dealing with an estimated 24,000 notifications each year and this that is only an estimate based on current numbers so the actual number faced could be much higher still. The department itself has said that the number of notifications sent to the office will only be known once the regulation comes into effect. So there's real potential for two different scenarios. Neither of them welcome of an under-resourced office that cannot keep up with the amount of work landing on its desk leading to long waiting times or even mistakes being made. Or of an office that expands and expands taking an ever-growing share of the department's expenditure and requiring ever-growing staffing numbers. There's a real risk of a very large cost here that balloons over time. I've no doubt that this work is important. It's vital even. But how is the government going to ensure that the potential costs and resourcing requirements here are properly managed? Look at the example of the National Cyber Security Centre. This is a key public body aimed at keeping digital space safe that has been under-resourced and overworked throughout its existence. We can't afford to keep making the same mistakes. This government has done nothing to earn our confidence that this new office won't face similar challenges. So I'd ask the Minister for real assurances that this body will be properly resourced to undertake the substantial job of work that will come across its desk and that a proper assessment of the potential for future growth in the number of notifications that it deals with has been carried out. Finally, it is essential that Ireland does not risk double criminalisation and we do not end up facilitating the prosecution of individuals who have committed an act that would not constitute a criminal offence here in Ireland. This issue was raised also at pre-legislative scrutiny. If, for example, an EU Member State were to criminalise provision of online information about abortion services, is there a risk that Ireland would be required to collaborate in evidence sharing about a potential breach of that law? I have seen the Department's response to the Committee's pre-legislative scrutiny report which seems to point to Article 12.1d of the e-evidence regulation for reassurance on this point, but it still seems to be the case that service providers based in Ireland, as distinct from the new office itself, could be compelled to cooperate on such a case. I would welcome more clarity on this from the Minister, but can he assure this House that this legislation will not undermine Irish law in any way? International cooperation on digital law enforcement is absolutely vital, particularly within the EU. No one on these benches will argue with that, but there are significant elements of this Bill that need greater clarity from the Government and we will be continuing to press on those as this Bill moves forward.