Justice minister is treating Murray report with contempt says NUJ
7 March 2018
The National Union of Journalists has accused the minister for justice and equality of adopting a contemptuous attitude towards the work of former Chief Justice Mr John Murray and the Oireachtas Joint Committee on Justice and Equality in his attitude towards the protection of journalistic sources of confidential information.
In the Seanad yesterday Justice Minister Charlie Flanagan refused to accept an amendment to the Communications (Retention of Data) Bill which would give effect to the recommendations of Mr Justice Murray. His report set out recommendations which would grant strong protections to journalists and the Oireachtas committee recommended that his findings be reflected in the bill.
Séamus Dooley, Irish Secretary, said:
“Mr Flanagan’s refusal to accept an amendment appears to be based on the fact that the Attorney General had not considered the recommendations. What is the point of having a pre-legislative scrutiny if the recommendations of the committee are not properly examined?
"The Report on Pre-Legislative Scrutiny of the Communications (Retention of Data) Bill recommended that the Bill should incorporate the specific recommendation of Mr Justice Murray commissioned at the request of the former Minister for Justice and Equality Ms Frances Fitzgerald.
"Mr Justice Murray’s Review of the Law on Retention of and Access to Communications Data was initially commissioned to look at issues around access by statutory bodies to communications data of journalists held by communications service providers.
"Mr. Justice Murray also undertook a very detailed analysis of the evolving case law coming from the ECJ as part of his review.
"Given the comprehensive nature of Mr Justice Murray’s report and the recommendations of the Joint Committee Mr Flanagan’s attitude is extraordinary. He has treated the findings with contempt and claims that the issue of source protection is not relevant to the Bill.
"Having commissioned a former Chief Justice to conduct such a review it seems extraordinary that his recommendations have been set aside in this fashion. As a former Attorney General and retired Chief Justice Mr Murray has provided the Government with a report which should be acted upon as a matter of urgency.
"Mr Flanagan should act on this report. Failure to do so could lead to suggestions that the review ordered by his predecessor was a matter of political expediency when issues relating to GSOC access of records had become a matter of public controversy.
"There is an onus on the Government to implement the report and if it is not going to be done as part of the current legislation the minister needs to confirm his intentions in relation to implementing the recommendations.”
For ease of reference here is the summary of the specific recommendation by Mr Justice Murray.
231. Applications by a statutory body for authorization to access a journalist’s retained communications data for the specific purpose of determining his journalistic sources should be made only to a judge of the High Court. (R)
232. Access to a journalist's retained communications data for any purpose, including for the purpose of identifying his or her sources, should in principle be permitted only when the journalist is the object of investigation for suspected commission of a serious criminal offence or for unlawful activity which poses a serious threat to the security of the State. (R)
233. Accordingly, contrary to what is permitted under the 2011 Act it should not be permissible to access a journalist's retained data for the purpose of investigating an offence committed by someone else. This limitation should be subject only to 'particular situations' (referred to at paragraph 119 of the Tele2 Judgment) where vital national interests such as public security are at stake and there is objective evidence justifying access. (R)
234. In addition, as regards any statutory regime for the retention of communications data, express provision should be made by law prohibiting access by State authorities to retained data for the purpose of discovering a journalist’s sources unless such access is fully justified by an overriding requirement in the public interest. (R)