Humphreys caught in data Bill muddle

NET RESULTS:The basis of a Labour candidate's defence of the proposed data retention Bill is incorrect

WITH LABOUR candidates like Richard Humphreys, conservative election candidates can sit back and relax. Humphreys, apparently, will do their work for them.

Going by his support for the Government’s deeply flawed draft data retention Bill and his attack last week on former party colleague and current independent senator and Trinity College Reid professor of law Ivana Bacik, who has questioned the legality of Government data retention proposals, Humphreys comes across as just a little bit to the right of former minister for justice Michael McDowell.

However, he has none of McDowell’s (misguided) conviction.

Humphreys, who is putting himself forward as Labour candidate in Stillorgan, sent out a blustery press release last week with the heading: “Data retention bill timely and necessary, says Humphreys.”

His (rather belated) criticism of Bacik is a response to a story I wrote for the front page of this newspaper on February 10th.

That story revealed several questionable provisions contained in a leaked draft Bill on data retention, which the senator felt raised serious legal, constitutional and human rights questions, but which Humphreys describes as “ill-informed waffle”.

With such a perspective on such an appalling Bill, what this man is doing in the Labour camp is beyond me. He must be secretly ruing the day that the PDs folded up their tent.

The press release has so much in it that is laughable – or would be laughable were it not being put forward as a serious argument – that one hardly knows where to start. But why not go with this comment: “Ms Bacik has criticised the Bill but does not appear to have understood it.”

Au contraire.If anything, Humphreys has criticised Bacik and supported the Bill without appearing to have understood either – unless the press release was just a cynical and shallow bid to appear to be firm on crime for voters in Stillorgan.

Whatever the case, he offers an incorrect interpretation of Bacik’s comments and an apparent ignorance of the context of the Bill and her objections to it.

His main complaint is Bacik’s contention that there should be an obligation to inform an individual when gardaí have made a request for their call or internet data.

“Ms Bacik’s idea that criminal suspects have a right to know they are being investigated is nothing more than ill-informed waffle,” he says.

But this takes her argument totally out of context.

Bacik’s comments responded to the wording of one of the few absurd “protections” offered in a Bill redefining “serious crime” to offences with a prison sentence of a single year – that citizens would have a right to make a complaint if they believed their records were accessed without reason.

Yet the only way a citizen could know this was if they were informed of such data requests, otherwise how would they know to file a complaint?

Had Humphreys done his homework, he also would have discovered such a right is not an odd provision at all. In other countries, including Germany, the United States and Canada, individuals are required to be told after a period of time that a search was done of their records.

Humphreys also contends that Bacik was wrong in condemning a clause that would allow data to be used in a prosecution even if it was obtained illegally, outside the provisions of the Bill itself.

“It is a necessary provision to ensure that the substance of the legislation is upheld,” he says.

He notes that there’s nothing unusual about such a provision, “which is included in existing law on telephone tapping and treatment of persons in custody”.

Actually, it is not.

If he goes back and compares Ireland’s wiretap legislation and the proposed data retention Bill, he will see there is a crucial difference – the former potentially allows evidence obtained in this way to be used, but only subject to very strong safeguards.

“Any such contravention shall be subject to investigation ... and nothing in this subsection shall affect a cause of action for the infringement of a constitutional right.”

In a final absurdity, Humphreys states: “This legislation is timely and welcome and indeed is necessary in order to protect rights under the European Convention on Human Rights.”

Perhaps he is unaware that the Irish Human Rights Commission has expressed concern about existing Irish data retention legislation just as – or perhaps less – onerous than this Bill, and has come in as a “friend of the court” in the constitutional challenge currently being made against existing Irish law in the High Court.

Given that Humphreys does have a legal background and would be presumed to know better, one can only see his press release as, to coin a phrase “ill-informed waffle”.

That is, unless it was simply an attempt to create an ill-conceived controversy to win a few votes from former PD supporters in Stillorgan.

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