The welcome decision of the Government to ask former chief justice John Murray to review the powers of the Garda Síochána Ombudsman Commission (Gsoc), the Garda, the Revenue Commissioners and the Defence Forces to delve into journalists' phone records is testimony to the extent to which the imminence of a general election can concentrate minds wonderfully. No better time to burnish one's credentials as a defender of press freedom.
Would that such diligent enthusiasm for rights was more often manifest. And that a greater degree of vigilance be exercised by government and TDs when such legislation is introduced in the first place. It is notable that in the debates on the Garda Síochána (Amendment) (No. 3) Bill 2014 no reference is to be found – approving or disapproving – to the granting to the chairman of Gsoc the same power as the garda commissioner to sanction such inspections of records. Nor is any distinction drawn in the legislation between categories of offence which might be argued to merit such significant intrusions.
The predominant tone of the debates reflected concern to enhance the ability of Gsoc to call the Garda Síochána to account in the face of not a little obstruction from within its ranks. It is important, therefore, that the outcome of the review should not play to the subtext of Gsoc critics who would clearly be delighted to see it emasculated.
The challenge facing Mr Justice Murray will not be easy. A number of conflicting rights and interests have to be squared, not least the fundamental importance in a democracy of the protection of the confidentiality of journalistic sources. Concern for the effectiveness of Gsoc, and other investigating bodies included in the review, must be balanced by a recognition that the power to scrutinise phone metadata (not the content of phone conversations) and the requirement on businesses to retain records of it for two years has already come under critical scrutiny at the European Court of Justice (ECJ).
Critics such as Digital Rights Ireland (DRI) have successfully argued in the court that the powers represent an unnecessary and disproportionate intrusion into privacy, and lack safeguards on state access to such data or on what use it can be put to. The ECJ’s overturning of a 2006 European data retention directive on the issue has not yet been reflected in the Irish transposed legislation, the Communications (Retention of Data) Act 2011, and DRI is returning to the High Court to demand action. Such a broader context will necessarily have to form part of the review.
Beyond the issue of journalism, there is a further complication: the disclosure that An Garda Síochána covertly seeks access to thousands of phone records annually. The scale of this activity – and whether it is subject to adequate oversight – poses a whole new set of questions.