The Gist: Faced Down

Regular Gist readers will remember the sequential Minister for Justices' plan to bring in facial recognition technology for the Gardaí by jamming in an amendment to an existing bit of law as it was passing by.

This plan ran into a number of problems. Firstly, as originally articulated, it was illegal. Also, as the Green party's TDs pointed out, it also was bad technology. Finally, it turned out that the serried ranks of the forces of the state's coercive powers were being menaced by that most eldrich and arcane of creatures- People Behind Desks.

Whether it was the occult powers of horizontal wood, internal Government dealmaking or just the being-illegal problem, on Sunday, the Independent website conceeded that Fine Gael's dream was over. After a year asserting they were going to force this through, they gave up and acknowledged they couldn't. The announcement still claimed that they'd bring in future legislation, going through the scrutiny the previous plan would avoid. But, you know, I think we may class this law in the same category as the Tory Government's perennial plan to introduce porn passes in corner shops for the internet.

They say it because they like how it feels to make the sounds out loud, as opposed to reflecting any genuine legislative intent.

Throwing neutral shades

The President of Ireland, and head of its armed forces, decided to express himself on the question of Ireland's participation in military alliances. We've addressed the issue of the Neutrality Bemoaner previously. There was a significant uptick in assertions of the inevitabliity of Ireland joining a military alliance back in 2022. This talk came to a sudden and juddering end as polls emerged demonstrating that what appeared to be solidifying conventional wisdom of the end of Nuetrality was not shared by the public.

But now we're back, the forces of Neutrality Bemoaning returning from their distant orbits like a Halley's Comet made up of rapidly defrosting red-faced Yer Das, crammed tight with barely a golf club or pint of Heineken between them.

The appeance of this omen in the sky, its long tail of men in comfort-fit salmon pink shirts with one too many buttons opened trailing across the heavens, heralds the introduction of Micheál Martin's plan to, as Leo Varadkar put it, develop "proposals as to how we could consult stakeholders and the public in a meaningful way on how our defence and security policy should evolve."

There is something familiar in the tenor of this project to tour the country telling the public they're wrong. It feels like a repeat of the impulse that saw the last FG government announce plans to commemorate the Black and Tans, and then continue to argue they were right even after giving up on the actual plan. Whether the security forum delivers as profound a bounce to the opposition as that last wheeze, it certainly has been entertaining to see the media seriously pose the question as to whether the elected official with the most votes of anyone alive or Yer Da might better reflect public opinion.

Double Down

The troubled Communications (Retention of Data) (Amendment) Act 2022 has been struggling to emerge from its difficult post-enactment life. The law was passed in barely a week from start to finish, on the basis that it was too urgent to let legislators examine it. It then sat on the books, an uncommenced Act, after the Department of Justice discovered that it was meant to alert the EU Commission of changes of this sort, through what is known as the TRIS mechanism.

This was, as an FOI confirms, news to the Department. As one Dept of Justice official emailed two others on the 2nd December "The context here of course is that the TRIS issue was not flagged to the Department as a legal issue at any stage before the Bill was enacted."

They eventually announced that, even though they didn't have to, they were going to put it into TRIS anyway. The EU Commission responded pretty sharply

We would like to remind the Irish authorities that the Directive (EU) 2015/1535 (hereinafter 'the SMTD) requires that Member States notify their technical regulations in a draft stage, which shall remain in that stage until the end of the standstill period. In this regard, the Court of Justice ruled that a technical regulation cannot be applied if, though notified, it has been adopted, entered into force and implemented before the end of the three month standstill period required under the SMTD (judgement of 26 September 2000, Unilever, Case C-443/98, EU:C:2000:496). The failure to respect that standstill period is a material procedural defect rendering the technical regulation at issue inapplicable and unenforceable against individuals (judgment of 16 July 2015, UNIC and Uni.co.pel, Case C-95/14, EU:C: 2015:492).

Or, for short, How Is This Not Too Late?

Despite this, on the 6th June last, as one of her very first actions since resuming office, Minister McEntee signed the Commencement Order for the Act (SI 287/2023), without apparently worrying too much that the state may be building its data retention regime, once again, on an 'inapplicable and unenforceable' law.