Speech by Minister for Justice, Home Affairs and Migration, Jim O'Callaghan: A Contested Arena: Balancing competing human rights in the area of Justice, Home Affairs and Migration

Thank you for the invitation to be here with you this morning.

People frequently ask me what it is like being Minister for Justice, Home Affairs and Migration. My answer is always the same. It is a very interesting job. It is intellectually stimulating, and it is consequential.

Most of the important decisions I make require me to take into account competing interests and rights. Two of the most recent pieces of legislation I have introduced illustrate this.

The Defamation Amendment Bill is going through the houses of the Oireachtas at present. As the Minister introducing it, I keep at the forefront of my thoughts the fact that I am dealing with and trying to balance two competing rights under Article 40 of Bunreacht na hÉireann – the right to freedom of expression and the right to one’s good name.

Similarly, the Terrorist Offences Bill that is also going through the houses at present is focussed upon enhancing protection for people living here from terrorist attack. The right to life and to be protected from terrorism are fundamental rights that people living here are entitled to expect from the State. But there are also rights to privacy and expression that may be impinged in some way by the enhancement of the former rights.

Campaigning and commentary on any issue now occurs in a very partisan manner. One feature of my job that has surprised me is the inability of advocates or indeed commentators to recognise the balancing act that must be taken into account by a minister or government when trying to navigate competing rights and identify a path that is for the common good.

Anyone who presents a complex issue as being easy to resolve is not really engaging with the issue. They are simply expressing a partisan political preference. They view that as being the most effective method of achieving their desired political objective. In truth, it is the presentation that will get more media coverage.

Regrettably, that is now very common as we live in what often seems to be an increasingly black and white world.

The space within which we might hold and acknowledge competing rights and different perspectives appears to narrow, reducing all issues to a set of binary choices. That is not just an occurrence on social media. It is evident in the reportage of global media and the advocacy of many representative organisations. When I receive myopic representations to that effect, they generally carry little weight with me.

The global media landscape has become more polarised, and the social media landscape even more so, with the increasing noise further narrowing that space.

And so, I appreciate the opportunity to set out some of my thoughts on areas within my remit that cannot be so easily categorised.

In my view, one of the central aspects of the job of a politician is to seek to balance competing interests.

We do this in a range of areas:

• how do we vindicate a right to employment while excluding people from certain employments due to past behaviours or criminal convictions;
• how we can take serious action on the climate action while protecting the future of our farm families; or
• how we protect our budgetary surplus while also addressing the very many areas that require greater public investment.

In these complex areas of public policy, a minister or government cannot just pick one side or the other.

I would suggest that is even more so the case in the justice sector.

My Department and the agencies it supports exercise many of the coercive powers of the State. These powers often require us to act in ways that might impinge upon people’s fundamental human rights, but to do so in ways that appropriately balance often conflicting rights, and in ways that are necessary and proportionate.

I would like to take my time with you here today to explain how we have sought to achieve this in some of the more controversial areas of public policy we are grappling with: on access to data for law enforcement; on access to other new technologies for Gardaí; and on migration and international protection.

Ireland, of course, is required to vindicate the rights of our people, including those set out in both Bunreacht na hÉireann and the European Convention on Human Rights.

The right of every person to their life, to their liberty and security, to private and family life, and to freedoms of conscience, religion, expression and association are, I think, reasonably well understood by most.

There has however, been some change in discourse around these fundamental human rights over recent years.

Increasingly, I see arguments put forth, which suggest the absolute primacy of one right, with little reference to or consideration of the others.

This I would suggest has particularly been the case in relation to the right to privacy, which has in some fora been elevated as though it were a right more significant than any of the others.

In my view, that line of thinking can only lead us towards conclusions that would not effectively vindicate the rights of our people. We need to recall that the countervailing balance to the right to the individual right to privacy is frequently the collective right to security. Collective rights need to be acknowledged and on occasion should supersede individual rights.

One key area where the right to privacy cannot be permitted to become sacrosanct is the question of in which circumstances law enforcement and security services should be able to access data.

None of us would like to imagine living in a surveillance State, with all of our private life – our thoughts, our communications, our interests – being observed and recorded.

But neither, I think, would we like to imagine people who have taken or plan to take the lives of others continuing to walk free with impunity, as a result of an inability on the part of Gardaí to effectively investigate their crimes.

The former suggestion would of course be a gross invasion of our right to privacy.

But the latter would be an obscene disregarding of our right to life.

There is therefore a need to grapple with the question of what data we will permit Gardaí to access, and what systems, protections and oversights should be in place.

One concrete example of this is the question of what powers An Garda Síochána and other agencies have to intercept our communications.

Difficult policy and legislation trade-offs emerge when the right to privacy has to be considered in the context of the use of intrusive powers that are provided for in security legislation, such as lawful interception. There is no right to criminal communication, and this is a point that needs to be central to our discussion in this area.

The existing legislation– the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 is now over 30 years old

If the title of the legislation sounds quaint, so too does the Oireachtas debate on the matter, in which my predecessor felt obliged to explain that for brevity he would “refer to postal packets as letters and to telecommunications messages as telephone calls, though the former include, for example, parcels and the latter include, for example, telegrams and telex messages.”

Text messages had not yet come along, not to mention emails, social media channels, encrypted services, and the panoply of other communication channels available to us nowadays.

Under the 1993 Act, the Garda Commissioner can apply for an interception under the Act for crime or security related matters, the Chief of Staff of the Defence Forces can apply for an interception for security related matters, and the Police Ombudsman can apply for an interception for the purpose of investigating serious crime involving a member of An Garda Síochána.

The Oireachtas agreed when approving the 1993 Act on the need for the State to have a system of lawful interception of communications that can yield intelligence that is vital for dealing with serious criminality or dealing with threats to the security of the State, including the prevention of large-scale loss of life as a result of terrorist incidents. I can tell you from my limited experience and without going into the detail of individual cases, that these powers need to exist to address such challenges.

Similar powers exist in other countries and the need for such legislation has been recognised by the European Court of Human Rights since the 1970s. In the 1978 case of Klass and others v Germany, at paragraph 45, the Court stated:

The Court has also recognised that legal safeguards are necessary for the use of these powers.

The 1993 Act has safeguards in place to ensure that lawful interception, which entails targeted interference with the right to privacy in individual cases when necessary, is proportionate and legally justified.

Up until recently, the operation of the 1993 Act was kept under ongoing review by a High Court judge. I recently commenced the Policing, Security and Community Safety Act 2024 which included provisions which place the Act under the supervision of an Independent Examiner of Security Legislation which is headed by a former senior Judge. The 1993 Act also provided for a Complaints Referee who has the power to investigate complaints made by members of the public who believe their communications have been intercepted.

Unfortunately, the effectiveness of the 1993 Act has been impacted by developments in technology and debates on the appropriate balance of individual privacy rights.

These developments raise the need for the complex tradeoffs and a balance between competing rights. While the Act applies to traditional landline and mobile telecommunications, it does not explicitly apply to newer types of encrypted digital-based messaging and voice calling services that we all use today. The annual reports that are compiled each year by Designated Judge for the Act have called attention to this fact. At present, it is not possible for State agencies to carry out lawful interception on these services and this is a matter of considerable concern.

This is not an issue that is confined to Ireland. The effectiveness of lawful interception has also been challenged in other countries in recent years, even where the scope of the legislation is up to date.

Some companies and commentators argue that it is not technically possible to provide for lawful interception of encrypted digital communications or, if possible, it should not be permitted on the basis that it is an unacceptable intrusion on individual privacy and human rights.

It is also asserted that it is not possible to limit the application of an interception power to encrypted communications involving bad actors – if encryption is weakened for a subset of cases, encryption will end up weakened for everyone.

At European level this is also an issue of concern.

In June, the EU Commission published a policy roadmap in this area which noted that terrorism, organised crime, online fraud, drug trafficking, child sexual abuse, online sexual extortion, ransomware and many other crimes all leave digital traces.

Around 85% of criminal investigations now rely on such electronic evidence, requests for data addressed to service providers have tripled between 2017 and 2022, and the need for these data is only increasing. Critical criminal evidence remains inaccessible because it is deleted, cannot be obtained, cannot be retrieved from seized devices, or cannot be read because the data is encrypted.

Instead of simply accepting that the right to privacy outweighs all other policy and legal considerations, the Commission’s proposals seek to engage with the complexities.

These include creating a level playing field for all communication providers in the enforcement of lawful interception and critically, delivering technology solutions to enable encrypted data to be accessed in a lawful manner while safeguarding cybersecurity, and continuing to work in close partnership with communications service providers. I look forward to engaging with my EU colleagues on these proposals.

At national level, the Programme for Government adopted earlier this year includes a commitment to enact new interception laws and include provision for over-the-top and encrypted services to be included, following public consultation, to enhance our ability to combat security threats.

Work on a review of the 1993 Act is currently underway in my Department and I intend to bring proposals to Government in the coming months for the drafting of the Heads of a new Communications (Interception and Lawful Access) Bill. This will seek to establish the clear legal principle that interception powers apply to all communication services.

At the same time, I will include enhanced legal safeguards, including for the first time judicial authorisation.

I am also giving consideration, in line with recent judgments of the superior courts, to a new legal requirement to address the question of how matters relating to privilege are dealt with and necessary conditions that may be appropriate in such cases. These are issues that have come very much into focus since the decisions of the Supreme Court in the Corcoran and Quirke cases.

In developing this new legislation, I intend to consult widely and will be emphasising that I believe effective lawful interception powers can be accompanied by robust privacy, encryption and digital security safeguards, to ensure that they are only used when necessary and proportionate.

While accepting the complexities involved, we need to recognise that privacy and security are not mutually exclusive.

We need to ensure that criminals, terrorists and other hostile actors have nowhere to hide; that our investigations are effective and our obligations to victims are upheld but also that we take full account of the right to privacy by having strict legal safeguards and oversight.

One of the worst examples of privacy rights being prioritised at the expense of other rights has been the negotiations around a proposed Child Sexual Abuse Regulation.

This regulation was first proposed in May 2022, but remains stuck without agreement from EU member states on how it should progress.

The Regulation is designed to replace a voluntary system which allows email and communication companies to search online content for the presence of child sexual abuse material.

As might have been predicted, a voluntary system has not proved to be very effective.

Many companies are simply not doing enough to address the proliferation of this material on their platforms.

But negotiations on this proposed Regulation have centred on the right to privacy, which has threatened to completely undermine the intention of the Regulation – to protect children from very real harm.

In my view, the abuse and rape of children cannot become of secondary importance in this discussion.

Companies are able to scan for spam, or malware on their services. They should be able to likewise for this awful content.

This new Regulation will only be effective if it sets out an enforceable requirement for all relevant companies to detect and remove child sexual abuse material.

I am not blind to the fact that this proposal will impinge upon the right to privacy.

But those who argue this should be the primary consideration are not recognising that this material depicts the abuse and rape of children. Should stopping that abuse not be our priority? I would have thought so.

And provided we build in sufficient safeguards, should this priority not be one of sufficient importance to justify some interference with the right to privacy?

Domestically, the question of granting Gardaí access to facial-recognition technology has been one of the most contentious debates in this area over the last couple of years.

In my view, that debate has been flawed from the outset.

The positions that many have taken publicly seem to be rooted in the deployment of technologies in other jurisdictions and interpretations of what is planned that don’t meet reality.

I am working on two pieces of legislation in this area.

The first Bill will amend the Recording Devices Act 2023. This will only allow Gardaí to process retrospectively biometric data, with significant safeguards in place. It will allow for retrospective biometric analysis.

What does this mean?

Well, it would allow Gardaí, if they had an image of a suspect, to use technology to search for that person in CCTV footage they have seized as part of an investigation. Or it would allow them to identify child sexual abuse material on a device they have seized.

These powers will only be permitted for investigations into serious offences, to help locate missing people, or for matters relating to national security.

There will be no automated decision making, and the use of these powers will be governed by a publicly available code of conduct underpinned by both human rights and data protection impact assessments.

I intend to publish this Bill early in the autumn. In my view, it is limited and proportionate, and will allow the Gardaí to get a modern digital evidence management system in place quickly.

Once this is in place, I think these powers will need to be broadened further. That will require a second piece of legislation that will provide for retrospective and potentially live biometric identification and analysis beyond what is contained in the original Bill.

The updated Prüm II Regulation will require Ireland to establish a database of facial images to contribute to greater cross-border police cooperation.

And there are a limited number of cases envisaged in the European Union AI Act where, with prior judicial authorisation only, Gardaí could be permitted to use real-time biometric identification.

There is a risk in speaking this way about competing rights, that I will be seen to have insufficient regard to the right to privacy. That I think would be a misunderstanding.

Our Data Protection Commission, often criticised in the past both nationally and internationally, has year on year stepped up enforcement activities against almost all major technology companies.

They have done so to vindicate your rights, and mine. And they have done so with some very considerable success.

To date, the fines imposed by the DPC amount to €4.5bn.

These fines always get the headlines, but just as importantly they have directed many organisations, including public bodies, to change how they work, to better vindicate the privacy rights of our people.

A strong and effective Data Protection Commission and the GDPR are the most effective vindications of data privacy rights available to us.

Both will have my complete support during my time as Minister.

Much of my contribution today has focussed on the balancing of privacy against other rights. But there are of course many other areas where fundamental rights come into conflict.

One of the other contested areas within my brief is on the migration side, and in particular how we manage our international protection system.

The right to claim asylum is well understood in international law, dating back to the Geneva Convention in 1951. That right has become more politically contested of late, but in my view is one that should be protected.

However, the right to apply for asylum does not and can not equate to a right to asylum.

If you are genuinely in fear of persecution, Ireland is here for you.

We will process your application quickly, and we will give you every help that we can to integrate into our society.

If you are not in fear of persecution but wish for a better life for yourself and your family, that is also legitimate, but our asylum laws are not here for your use. They are there to protect the persecuted. The work visa laws are there to enable people to seek an economically better life here.

It is not legitimate to claim that you require international protection when you do not. It is unfair on the people who do.

We need to develop the existing and new pathways to allow people who want better lives to come to Ireland to study, join close family or work to meet our skill needs - we know that in areas like construction, healthcare, home care and transport we need and depend on the contributions of migrants.

I have tasked my Department with working across Government to develop a migration and integration strategy - the first time Ireland will ever have had a coherent written strategy in this area – which I will publish next year. We need to have a policy that is planned, not one that develops organically and haphazardly.

This strategy will seek to balance our country’s need for an immigration system that is both fair and firm – one that attracts people with the skills we need as well as protecting those at risk of persecution, and also one that ensures that our rules are fully enforced and that those with no right to be here are returned.

One area where we may see a conflict of rights or, more accurately, a contentious hierarchy of rights derives from a recent opinion of the Advocate General of the CJEU in respect of the rights that asylum seekers have to accommodation, and whether a failure to provide accommodation will always give rise to Francovich damages. We know that under the Reception directive each member state is obliged to provide shelter and accommodation to persons seeking international protection. Last year we were unable to do this and it resulted in approximately 3,400 male asylum seekers not been offered accommodation. That number has now reduced to 1,400.

On 10 April this year in proceedings brought against Ireland by two international protection applicants, the Advocate General gave an opinion that Ireland as an EU Member State cannot avoid responsibility for providing adequate reception conditions even in cases where there is a large influx of people seeking international protection, as was the case last year. The Government argued the breaches were due to exceptional circumstances, namely an influx of asylum seekers, which amounted to "force majeure" under EU law. The Advocate General ruled that under the directive a member state could not avoid a claim for damages because of a defence of force majeure.

If that opinion is upheld by the CJEU, which is the most likely outcome, it will mean that people in Ireland who are entitled to be on social housing lists or homeless lists and who have not been provided with accommodation will be in a situation where they cannot receive damages for the state’s failure to provide accommodation, whilst applicants for asylum will immediately on arrival in Ireland be able to claim and receive Francovich damages from the State if it cannot provide them with accommodation. That will be a very consequential decision that will be very hard to justify, not just to citizens of Ireland but of all member states. We should try to ensure that in trying to vindicate certain rights we do not marginalise or demote other equally legitimate rights.

As I said at the outset, complex public policy questions require us to balance competing and conflicting rights.

I hope these comments have given you a sense of how I am working to balance those rights in some complex and contested areas.

I will make just one further point before I conclude.

I do not, and my Department does not, have a monopoly on wisdom. These topics are contested because they are important. And balancing rights requires very careful calibration.

So, during my time as Minister, I want to hear alternative voices and viewpoints, and to have my positions scrutinised and challenged.

That, rightly, happens frequently in the Oireachtas and the media. I hope it will happen here this morning also!

My thanks to Alex and all of the team at the IIEA for the invitation to be here with you.

I look forward to the rest of our conversation.

Thank you.