Attorney General questioned constitutionality of new telecoms security measures before taking up post

Attorney General Rossa Fanning questioned the constitutionality of new telecoms security measures shortly before he took office last December, in a legal paper for Chinese company Huawei.

The draft law was partly changed in February, two months after Mr Fanning became the chief law officer of the State. However, the Government has said he had no role in that move.

“Since his appointment, the Attorney General has given no advice whatsoever in relation to the Bill,” the Government said in reply to questions.

‘Technical amendments’

“The Attorney General was not involved in drawing up the technical amendments to the Bill that were considered in the Seanad and Dáil in February.”

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Mr Fanning was a senior counsel in private practice when he was co-author of a November legal opinion for Huawei. At issue were laws giving Ministers sweeping powers to force companies off Irish telecoms networks for national security reasons.

Huawei believes it is the target but Ministers insist the measures were not aimed at any specific country or business. The company declined to comment on the legal opinion, which said parts of the legislation were “constitutionally disquieting” and “fundamentally objectionable to the rule of law”.

President Michael D Higgins signed the measures into law in March but they have not yet taken force legally. Amid European moves to tighten telecoms safety, the Irish law follows a US ban on Huawei because of “unacceptable” national security risks.

Mr Fanning co-wrote the 44-page legal opinion for Huawei with barrister Niall Buckley, under instruction from solicitors Philip Lee. The document was sent to IDA Ireland, the inward investment agency, and forwarded later to the Department of Enterprise, Trade and Employment.

The Huawei paper said the draft law was an “unprecedented suite of legislative measures of draconian scope” and raised “severe doubts” about its validity under Irish and EU law.

“Their breadth of scope, severity of impact, opaque operation and curtailment of effective court review are virtually without domestic law precedent and render them highly vulnerable to challenge.”

The Government dismissed such complaints, saying the law was in line with a European drive to protect networks, the “EU 5G security toolbox”.

But in February it granted a last-minute concession in amendments introduced by Minister of State for Communications Ossian Smyth for the final Seanad and Dáil debates on the law.

The amendments removed the damaging tag “high-risk” vendor from any company hit by the measures, using instead the neutral expression “relevant” vendor.

Rival groups

The replacement of the negative language may make it easier for companies hit by the restrictions to try to limit the fallout in other parts of their business. While any ban handed down under the laws is supposed to be confidential, a “high-risk” designation could still be deployed by rival groups against target companies.

Asked about Mr Fanning’s legal paper, the Government said: “When in private practice, the Attorney General provided written advices to an Irish firm of solicitors acting on behalf of their client, Huawei, on one occasion in 2022. That was the extent of his role and he had no contact with Huawei. The Attorney General has a duty of confidentiality to clients in respect of his previous private practice.”

The Government said the February amendments were drawn up “on the approval of the Minister” by the Department of the Environment, Climate and Communications working with the Office of the Parliamentary Counsel. “They did not require further Government approval.”

China’s ambassador to Ireland attacked the law last year in rare public criticism of domestic legislation, saying it would “suppress” high-tech companies from his country.