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Sunday 18 August 2019

Brexit chaos delays new law to respond to Graham Dwyer case data ruling

Graham Dwyer pictured in 2013. Photo: Collins
Graham Dwyer pictured in 2013. Photo: Collins
Shane Phelan

Shane Phelan

Plans to urgently replace data retention laws struck down following a legal challenge by convicted murderer Graham Dwyer have been hit by the Brexit turmoil.

As a result of the High Court ruling last month, gardaí have been unable to access phone records in criminal investigations.

The Irish Independent has learned the Department of Justice sought to have a new Communications (Data Retention) Bill included on a list of "priority legislation" to be published by the Government this spring. However, it failed to make the list, with just a small number of bills being designated priority legislation.

This is because much of the resources of the Office of Parliamentary Counsel, which drafts legislation, are being taken up with a mammoth 17-section emergency bill to deal with contingencies in the event of a no-deal Brexit.

That bill will contain key measures relating to healthcare arrangements, energy, taxation, financial services, public transport regulation, extradition and immigration.

Last month the High Court ruled that aspects of Ireland's data retention laws, under which gardaí gathered mobile phone evidence against Graham Dwyer, contravened EU law and the European Convention on Human Rights.

The court later heard that as a result of the ruling, requests by gardaí for phone data in relation to the investigation, prevention and detection of crime were not being acceded to. Requests were still being made, however, for access to retained phone data where a person's life was at risk, or in matters of State security, in accordance with the court's judgment.

Mobile phone data proved crucial in the case against Dwyer, who now intends to use the High Court ruling to support a challenge to his conviction for the 2012 murder of Elaine O'Hara.

Despite not making the Government's priority legislation list, it is understood the Department of Justice is hopeful new data retention laws can be introduced soon.

Just six pieces of legislation made the list, published on Tuesday by chief whip Seán Kyne.

In addition to the Brexit omnibus bill, the other priority legislation listed were bills allowing for the setting-up of a CervicalCheck tribunal, the extension of the franchise in Presidential elections, the revision of European Parliament constituencies, the holding of a divorce referendum in May, and changes to the regulation of heath professionals.

In addition to the data retention bill, important new legislation to provide statutory powers in relation to the roll-out of the National Broadband Plan also looks set to be delayed after failing to make the priority list.

Also absent from the list were bills providing for the exchange of criminal records information between EU states, repealing the offence of blasphemy, and enacting provisions relating to electronic court services.

A bill which would permit the IDA to participate in partnership arrangements for the development of critical industrial and commercial property in regional locations also failed to make the priority list.

Irish Independent

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