Data Sharing and Governance Bill 2018 [Seanad]: Report Stage

Amendment No. 1 is in the name of the Minister of State. Amendments Nos. 1 to 3, inclusive, are related and will be discussed with amendment No. 1.

I move amendment No. 1:

In page 10, lines 9 to 11, to delete all words from and including “excepting” in line 9 down to and including “data” in line 11.

From the outset, it has always been my intention that this Bill would not apply to the sharing of special categories of data specified in Article 9 of the general data protection regulation, GDPR. At the outset, I thank the Deputies and their representatives who have engaged with my officials since Committee Stage. This refers to any personal data that reveals a person’s racial or ethnic origin; their political opinions or religious beliefs; or whether they are a member of a union. It also includes their genetic and biometric data and any information concerning their health, sex life and sexual orientation. To this end, section 5 specifically prohibits the use of this legislation to share special category data.

In the Seanad, I accepted two amendments to section 7 that were intended to make explicit that if any part of the public service identity were to contain special category data it could not be shared under this legislation. I told the Seanad at the time that I might need to make some technical amendments to these proposals to ensure the wording is completely sound from a legal point of view.

The Attorney General’s office has examined the amendments and has suggested an alternative wording that will have the same effect as the Seanad intended but which is more legally robust. The main issue the Attorney General has with this provision is that it only applies to section 7(2). However, section 7(3) also makes reference to the public service identity but, as things stand, there is no indication as to whether this subsection applies to special category data. The intent was to apply the exclusion to the entire section but this is not what is provided for in the text in its current form. The Attorney General has advised that we should remove any uncertainty or doubt at this time. I am sure the House will agree with me that this is the correct course of action to take. The amendment I am proposing, therefore, gives effect to this by creating a specific definition of the “public service identity” in section 7(5) that explicitly excludes special category data, which will apply to the entirety of this section of the Bill.

Amendment No. 2 removes the specific reference to Article 9 of the GDPR. This is not required since the definition of “special categories of personal data” in section 2, page 9, lines 8 and 9, provides that it means “information referred to in Article 9(1) of the GDPR”. I ask the House to support these amendments, which are technical in nature and exist solely to give full effect to the policy intent of the relevant amendments made in the Seanad.

We dealt with these amendments on Committee Stage and on the day, the Minister of State withdrew them to give us an opportunity to engage with his officials, which we have since done. We had more than an hour of engagement with them last week on the Bill. We would not support them on Committee Stage because they contained wording of amendments inserted by Senator Higgins in the debate in the Seanad but having discussed it with the Minister of State's officials and got the explanation as to the reason he wished to remove them now, we are satisfied that we are in a position to support the three amendments.

We do not have a problem with the amendments either. I thank the officials for their co-operation with our staff.

Amendment agreed to.

I move amendment No. 2:

In page 10, line 13, to delete “and compliant with Article 9 of GDPR”.

Amendment agreed to.

I move amendment No. 3:

In page 10, to delete lines 21 and 22 and substitute the following:

“(5) In this section—

“specified body” has the same meaning as it has in section 262 of the Act of 2005;

“public service identity” has the same meaning as it has in section 262 of the Act of 2005, subject to the modification that the reference, in the definition of that phrase in subsection (1) of that section, to information specified in subsection (3) of that section shall not include a reference to special categories of personal data.”.

Amendment agreed to.

Amendment Nos. 4, 5 and 10 are related and may be discussed together.

I move amendment No. 4:

In page 10, to delete lines 23 to 25.

I will also speak to amendment No. 10 and respond to amendment No. 5, which has been proposed by Deputies Wallace and Daly.

Amendment No. 4 proposes to delete section 7(6) and amendment No. 10 will have the effect of removing section 37(5) of the Bill. Both of these were amendments made to the Bill on Committee Stage, which I opposed and flagged that it was my intention to revert to them.

Section 7(6) provides that the presentation of a public service card or access to a person’s public service identity may not be the exclusive basis by which a public body may verify a person’s identity. Along the same lines, section 37(5) provides that when designating a base registry, the Minister shall allow a person to verify his or her identity by means other than presenting a public service card or by allowing a public body access his or her public service identity.

Amendment No. 5 seeks to add a similar provision to section 13 that presentation of a public service card or access to a person’s public service identity may not be the exclusive basis by which a public body may verify a person’s identity.

All three amendments concern the use of the public service identity, which the Deputies want to make optional. The public service identity is defined in the Social Welfare Consolidation Act as the following: PPS number; surname; forename; date of birth; place of birth; sex; aIl former surnames, if any; all former surnames, if any, of the person’s mother; address; nationality; date of death, if applicable; certificate of death, where relevant; a photograph of the person, where required, unless deceased; the person's signature, unless deceased; any other information that may be required for identification purposes that is uniquely linked to or is capable of identifying the person; any other information that may be prescribed, which in the opinion of the Minister for Employment Affairs and Social Protection is relevant to and necessary for the allocation of a PPS number; and any data that is collected by a public body and by “any data” I mean data collected directly from a person as well as through data sharing. If any of this data includes any of the information I have just listed, then this is public service identity data.

The Deputies’ intention here is that public bodies should not use the public services card or the public service identity as the “exclusive basis” to verify a person’s identity to provide them with a service. This means that a person can refuse to provide basic information like name, address and date of birth and yet public bodies would still be required to verify the person's identity somehow. My difficulty is how I would do that.

I will set out an example. These provisions would mean that the Revenue Commissioners would be unable to use the public service identity as the exclusive means of verifying identity. There is no other way of reliably identifying a person for online or telephone-based services. Accordingly, Revenue would no longer be able to provide online or telephone-based services to taxpayers because it would no longer be able to verify a person's identity. This would have a dramatic and somehow catastrophic effect on the services Revenue delivers to more than 2 million taxpayers as well as on the State's capacity to collect taxes and pay for our public services.

A similar impact would arise across a vast range of public services, including social protection, housing and health services. Examples include the free travel pass scheme and the early childhood care in education scheme as well as the services of the National Cancer Registry and the Personal Injuries Assessment Board. All these organisations use the public service identity data set to provide their services. These provisions will have a real serious and singularly damaging impact on the ability to administer all of these schemes and services. In some instances it would lead to the collapse of public services. I am sure this is not the intention of the House.

It is difficult to see what could be used as an effective alternative means of verifying a person's identity if a person were to request an alternative, which would be a right under the provision. Clearly, this would lead to a difficult state of affairs. Given the explanation that I have provided to the House, I appeal to Members to support my amendments and to delete the unworkable provisions from the Bill. I appeal to the Deputies who have proposed the other amendments to consider withdrawing them based on the explanation I have provided and the unintended consequences for public services across our Administration.

The Minister of State said on Committee Stage that he could not accept our amendments. Obviously, he is trying to reverse the amendments we secured at the time relating to the public services card and the public service identity data set. The Minister of State said the measures would be in direct conflict with existing legislation. He referred to the Social Welfare Consolidation Act. This Bill interacts in a significant way with the Social Welfare Consolidation Act, as we said on Committee Stage. Indeed, it amends that Act.

Section 247C of the Social Welfare Consolidation Act, as amended, states that the Minister may require a person receiving a benefit to satisfy the Minister as to his or her identity. That is completely acceptable and understandable and we have no problem with that. Section 247C(3) of that Act specifies the manner in which the Minister may be satisfied. Essentially, it describes the standard authentication framework environment level 2 verification process for registering a person's identity. That is fine. The problem is that the aim of the public services card and the SAFE 2 process is not limited to verification. The aim is also to coerce consent to data sharing. It is to enable the creation of a database of citizens' data.

Section 262(6) of the Social Welfare Consolidation Act states that where a specified body has a transaction with a person, the Minister may share the person's public service identity with the specified body to the extent necessary for authentication by the specified body of the person's public service identity. That section states that a person's public service identity may be used by a specified body in performing its public functions. The use of "may" is significant. It permits data sharing but it does not require or demand it. Data sharing is not an inevitable consequence of the verification of a person's identity.

Section 247C(1) of the Social Welfare Consolidation Act makes clear that the purpose of the verification process described is to satisfy the Minister as to the person's identity. Once the person's identity has been verified and the Minister is satisfied as to the person's identity, there is no legal basis for further processing of that person's data unless the body has obtained the person's consent.

The point of our amendments relating to the public services card is to provide a solution to the practice of coercing consent in order that a person does not have to register for a public services card or agree to the processing of his or her public services identity dataset to access basic services. There has to be an alternative. We do not have a problem with the SAFE 2 verification process per se. Verification of identity is essential, but the State and the Department of Employment Affairs and Social Protection have created a bizarre situation whereby verification of identity leads inevitably to a large-scale sharing of personal data.

The Minister of State said this Bill makes no reference to the public services card and that it is not relevant to the public services card. However, the public services card is a Department of Public Expenditure and Reform project. The Department of Employment Affairs and Social Protection is doing the heavy lifting for the Department of Public Expenditure and Reform. It is doing the dirty work of coercing consent. It can do so effectively because the Department of Employment Affairs and Social Protection is the only source of income for significant numbers of people. The Department of Employment Affairs and Social Protection has issued letters warning that failure to comply might result in a person's income being cut off. People were denied payments because they refused large-scale sharing of their data. The State is targeting vulnerable citizens via the welfare system. As I said on Committee Stage, privacy is a human right and we cannot be selective in how we observe human rights. We should not tolerate State coercion and we should not tolerate the State acting illegally under EU law.

There is nothing in our amendments to contradict or make unworkable the Social Welfare Consolidation Act. At the Committee of Public Accounts meeting on 29 November there was a significant discussion between Deputy Burke and the Secretary General of the Department of Employment Affairs and Social Protection, Mr. John McKeon. Deputy Burke questioned Mr. McKeon about the decision of the Department of Transport, Tourism and Sport to stop making the public services card mandatory for driver theory test applications. Mr. McKeon repeated several times that it is a matter for each Department to make a judgment as to how it wishes to use the card. Mr. McKeon stated that his Department uses the public services card for the Department's own purposes. He made the point that whether another Department wants to use the public services card is up to that Department, although he failed to acknowledge that his Department is guilty of illegally coercing consent to data sharing by withholding social welfare payments to those who refuse to register for the card. Deputy Burke asked Mr. McKeon if it was a regressive step by the Department of Transport, Tourism and Sport. Crucially, Mr. McKeon replied by saying that the Department of Transport, Tourism and Sport would have to reach its own conclusions. The Department of Transport, Tourism and Sport clearly realised that it had no legal basis to coerce consent to data sharing. The Road Safety Authority, which runs the driving test, was told by the Department to cancel the plan after announcing it as a requirement. In response to my parliamentary question earlier this year, the Department of Transport, Tourism and Sport said that it had spent €2 million on the information technology element of the project and a further €30,000 or €40,000 on advertising. It sounds like a waste of money since the Government has been repeatedly warned about the lack of a legal basis for denying services to people who refused to register for a public services card due to concerns about the sharing of their data.

This change of heart with regard to the public services card shows that each Department or service provider can use its discretion in respect of requirements for the card. Mr. John McKeon made that clear at the Committee of Public Accounts meeting. This is exactly what the Minister of State said to me on Committee Stage.

We are not prescribing what an individual service provider must or must not use. I do not understand the logic of the Minister of State when he says that our amendments would mean that the Social Welfare Consolidation Act would have to be unwound and that the provisions would be unworkable. I do not believe that is true and I am unsure whether the Minister of State does. Oddly enough, the Minister of State is making clear that our point is valid.

Amendments Nos. 4 and 10 attempt to row back on the amendments that Deputy Wallace succeeded in getting passed on Committee Stage. Amendment No. 5 is really a companion amendment to the amendments we succeed in getting through on Committee Stage and will be necessary if those two amendments remain in the Bill. I believe that they should remain.

The Bill has undoubtedly improved a good deal from what it was originally, thanks in large part to the work of Senator Higgins. One of the biggest problems with the provisions in question is the fatal undermining of voluntary consent. They enshrine coerced consent in a certain way. That is why we will be sticking to our guns.

I find it unbelievable that we have to argue this point at all. It is so clearly wrong that the State would hold a person's social welfare payments hostage until that person surrenders or gives up the right to privacy, which is one of the fundamental rights under the European Convention on Human Rights.

However, that is how the public services card has been used by the Department of Employment and Social Protection to date. If someone wants to use the public services card to verify their identity or give a body access to their public service identity, that is absolutely fine. We have no problem with that and nothing we are putting forward here impedes that. All we are saying is that if people do not want to do that, they should not have to and should be able to produce something such as a passport.

I do not know whether the Minister of State has changed his tune on this but when it was raised in the past, he told us that alternative ways to verify one's identity would always be offered. If that was the case and the Minister of State is sticking to that, what is the harm in accepting our amendment, which would not undermine that? I am unsure where the Minister of State is coming from on that. If an alternative mechanism is not provided for, we wholly believe it ought to be. We are not prescribing what an individual service provider should use, nor do we care what they require, merely that it cannot be the only provision.

Leaving aside some of the discussions that took place on Committee Stage, there is a serious point at stake. It is one thing to submit a photograph or document with one's address but quite another to be required to provide a facial image with a biometric scan. I hope that the Minister of State does not tell us again that the public services card database does not store biometric data, as we are sick hearing it. The intrusiveness of the data requirements of the public services card means it is in breach of the requirement under EU and ECHR law that state interference with privacy must be both necessary and proportionate. The public services card is not necessary because alternative forms of identification, including passports, are available and were previously sufficient for the purposes of accessing public services. The idea of it causing a systems breakdown going into overload does not apply here. Most people will probably not have a problem offering the information but it is for those who do not want their data shared across potentially 150 organisations. In that sense, the public services card is disproportionate because it requires people to link all their personally identifiable information into one database shared by numerous agencies, and that interferes with privacy rights in a manner that far exceeds the stated goal of easy and convenient service access. To put all this private information into a hackable database goes even further than that. It is absolute lunacy.

The key phrase here is "state interference with privacy". If the State asks a person if he or she wants to give certain pieces of personal information and in return, that person will be given a handy card that he or she can use for all public services, many people would say "Yes". If the State asks, interference with privacy does not apply. Where it becomes an interference with privacy is when the State puts a gun to someone's head and demands all their data or their services will be cut off. I do not understand why the Government cannot appreciate that point. By interfering with privacy in a way that is neither necessary nor proportionate, I guarantee that the State is setting itself up for all sorts of problems, not only with the ECHR but also with general data protection regulation, GDPR. Without question, if the Government succeeds in removing our amendments, it will result in fines being levied. I hope the amendments are not removed and that amendment No. 5 is approved to go in tandem with it.

We met officials and said that we would like to hear what Deputies Clare Daly and Wallace would say on the removal of their amendments, because they had been supported on Committee Stage by all parties, including Fianna Fáil and ourselves in Sinn Féin, with the exception of the Government. I have a straight "Yes" or "No" question for the Minister of State. If somebody refuses to use a public services card, is it true that their social welfare payments can be withheld?

As I said on Committee Stage, this Bill in no way seeks to specify or prescribe the methodologies for any service that the State provides, it relates explicitly to the mechanism available for sharing information between two different bodies. I thank Deputy Jonathan O'Brien for his engagement. His question is one for the Department of Employment and Social Protection which we are not covering as part of this Bill.

She is behind you.

The Minister might provide the Deputy with the information on the way out of the Chamber. I can say categorically that in no place in this Bill are we specifying any mechanism for any service. It is entirely up to the line Minister and their Departments, through legislation, to proscribe those methods.

The last two lines of amendment No. 5 tabled by Deputies Wallace and Clare Daly are the most important: "verify their identity other than by the presentation of a public services card or access to that person’s public service identity". I remind Members that the public service identity is defined as personal public service, PPS, numbers, surnames, forenames, date of birth, place of birth, sex, all former surnames, etc. If we are to delete that public service identity or unpick it in some way, how then are we to find out who a person is? I have said this time and again and we had a very good debate in the Seanad, to be fair. Deputy Clare Daly is correct about necessary and proportionate and we have absorbed that into the Bill. However, the GDPR requires data protection and this Bill has strong regard to that. We had a very good discussion which I will not rehash, but amendment No. 5 would have the net effect of paralysing a great deal of public service delivery because we would not be able to prescribe any method of identifying anybody.

We do not think our amendments would have that effect on the Bill. The Minister said that the Government was not prescribing what an individual service provider must or must not use, that it is not the intent of the Bill and is a matter for each individual service provider to determine. He also said that it is also up to each individual service provider to seek legislation, if required, to put in place the mechanism it wishes to use.

If that is the case then our amendments on the public services card will provide clarity only. The Department of Employment and Social Protection, for example, might be made aware that what it is doing in relation to the public services card and coercing consent is illegal. Section 69 gives the Minister power to restrict or limit the types of documents which can be requested by a public body. We accept that the Minister must have some restrictions as to what are deemed acceptable documents, and it cannot be the case that a person can choose his or her own method for verifying his or her identity. That would not be workable. However, as Deputy Jack Chambers said of the language of our amendments, which passed Committee Stage, it "gives flexibility to allow the public services card to be used where provision of an additional form of identity is also allowed". In not prescribing what a service provider can and cannot prescribe and given the Minister's power under section 69 to restrict the type of documents that a service provider may request, our amendments should pose nothing to fear. It is a fact that the Data Protection Commissioner is investigating the legal basis of the public services card and I do not imagine that she decided to do so just because she had a bad dream.

I will speak very briefly. The Minister of State has repeated the point that he is not prescribing what the individual service provider must or must not use. We fully and totally accept that. Neither are we. There is no contradiction there whatsoever. We fully accept that service providers can ask for any method of verification as they see fit. All we are saying here is that the public service provider cannot make the public services card the only way to verify identity. That is it. If loads of people want to use it, as I am sure they will, happy days. That is up to them. Equally, if they do not want to use it they must have the right to produce an alternative method of verification. We are talking about allowing their data to be processed and kept in a centralised registry where it can be shared with up to 150 specified bodies. A lot of people have a problem with that. They are probably a minority. They are probably a substantial minority, but a minority nonetheless. However, they are a minority whose views and position are supported by the European Convention on Human Rights, ECHR, and the general data protection regulation, GDPR.

The debate on this Bill is not the forum for the point the two Deputies are making. That forum is the debate on every piece of legislation that prescribes a method for the collection of data for a particular service, which this clearly does not. Deputy Daly referred to the use of the passport. That is a very good example. How would a person even get a passport under the Deputies' amendment, if he or she could choose not to provide a surname, forename, date of birth and place of birth? I have never heard of a passport being issued to somebody who could choose not to provide that information.

That is not what we are calling for.

That would be the net result of the Deputies' amendment. This amendment would provide a legal basis for a person to opt out of providing the very basic information which is called the public service identity. In fairness I understand the Deputies' concern. However, the net result of their amendment would be a collapse in most of our public services, including the provision of the one identity they suggest we could use, the Passport Service.

That is nonsense.

Amendment put:
The Dáil divided: Tá, 34; Níl, 38; Staon, 0.

  • Breen, Pat.
  • Brophy, Colm.
  • Bruton, Richard.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • D'Arcy, Michael.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Murphy, Dara.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • Ring, Michael.
  • Rock, Noel.
  • Ross, Shane.
  • Stanton, David.

Níl

  • Aylward, Bobby.
  • Brady, John.
  • Brassil, John.
  • Broughan, Thomas P.
  • Browne, James.
  • Butler, Mary.
  • Cahill, Jackie.
  • Chambers, Lisa.
  • Collins, Joan.
  • Collins, Michael.
  • Daly, Clare.
  • Donnelly, Stephen S.
  • Ferris, Martin.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Howlin, Brendan.
  • Kelly, Alan.
  • McConalogue, Charlie.
  • McGrath, Mattie.
  • Murphy, Eugene.
  • Murphy, Paul.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Dea, Willie.
  • O'Sullivan, Maureen.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Rabbitte, Anne.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Smith, Bríd.
  • Stanley, Brian.
  • Troy, Robert.
  • Wallace, Mick.

Staon

Tellers: Tá, Deputies Seán Kyne and Tony McLoughlin; Níl, Deputies Clare Daly and Mick Wallace.
Amendment declared lost.

I move amendment No. 5:

In page 14, to delete lines 14 and 15 and substitute the following:

"(I) as one non-mandatory means to verify the identity of a person, where the first or second mentioned public body is providing or proposes to provide a service to that person, without prejudice to a person’s right to verify their identity other than by the presentation of a public services card or access to that person’s public service identity;".

Amendment put:
The Dáil divided: Tá, 38; Níl, 34; Staon, 0.

  • Aylward, Bobby.
  • Brady, John.
  • Brassil, John.
  • Broughan, Thomas P.
  • Browne, James.
  • Butler, Mary.
  • Cahill, Jackie.
  • Chambers, Lisa.
  • Collins, Joan.
  • Collins, Michael.
  • Daly, Clare.
  • Donnelly, Stephen S.
  • Ferris, Martin.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Howlin, Brendan.
  • Kelly, Alan.
  • McConalogue, Charlie.
  • McGrath, Mattie.
  • Murphy, Eugene.
  • Murphy, Paul.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Dea, Willie.
  • O'Sullivan, Maureen.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Rabbitte, Anne.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Smith, Bríd.
  • Stanley, Brian.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Breen, Pat.
  • Brophy, Colm.
  • Bruton, Richard.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • D'Arcy, Michael.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Murphy, Dara.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • Ring, Michael.
  • Rock, Noel.
  • Ross, Shane.
  • Stanton, David.

Staon

Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Seán Kyne and Tony McLoughlin.
Amendment declared carried.

Amendments Nos. 6, 7 and 9 are related and may be discussed together. I ask that Deputies who are not participating in the debate leave the Chamber in an orderly manner.

I move amendment No. 6:

In page 15, between lines 23 and 24, to insert the following:

“(3) A mechanism shall be provided to allow a person to whom a service is being or is to be delivered by a public body to instruct that public body that they do not regard collection of their personal data by any public body directly or on a case by case basis as burdensome and in such an instance (2)(ii)(III) shall not apply.”.

On Committee Stage the Minister of State, in commenting on these amendments, said: "Imagine a situation where a driver would not give his or her consent to have penalty points information shared between one arm of the State and another." He also stated a person who was not tax compliant would be empowered by our amendments not to give consent to the sharing of his or her data between the agencies of the State. Both comments reveal a fundamental misunderstanding of basic data protection law. The Minister of State presumed that consent was always required, but that is not the case. Article 6 of the general data protection regulation, GDPR, lists various exceptions to the consent requirement. One such exception is processing necessary for the performance of a task carried out in the public interest or the exercise of official authority vested in the controller. Processing taxation data clearly has a legal public interest basis. Section 60 of the Data Protection Act deals with public interest processing and sets out clearly that it permits data processing without consent of the data subject for "the prevention, detection, investigation and prosecution of criminal offences and the execution of criminal penalties" and "the administration of any tax, duty or other money due or owing to the State or a local authority". Raising the issue of consent in the case of penalty points is misleading in the context of a massive data sharing project such as this. I do not think the Government should go down that road. The Data Protection Act transposes the law enforcement directive which applies instead of the GDPR in the processing of personal data carried out for a law enforcement purpose. It is clearly not possible for a person to withhold his or her consent to data sharing in order to avoid arrest or prosecution and suggesting otherwise is nonsense.

Amendments Nos. 6 and 9 aim to address the issue of processing for reasons other than that for which data are collected. Public services card registration is only one of the points of data collection addressed by the Bill. It clearly applies to many other instances of data collection not addressed by amendment No. 5. Amendment No. 4 in the name of the Minister sought to delete lines 23 to 25 on page 10 of the Bill, while amendment No. 10 in his name seeks to delete lines 25 to 27 on page 33. The Bill seeks to empower State entities to access a citizen's personal data given for one specified purpose for another. That contravenes the GDPR and the Bara judgment. Our amendments would create an opt-out. They would not require a person to be asked whether he or she consented. I appreciate that the amendments would create difficulties for the Department. However, as it is not administratively ready to implement the Bill in compliance with the GDPR and EU case law, the Minister of State should not try to bring the Bill through the House until it is so ready. Amendments Nos. 6 and 9 would build on and make meaningful the amendments proposed by the Minister of State and passed in the Seanad in ensuring disclosure of data was not possible simply to avoid a financial burden on a public body but rather was permitted to avoid a financial burden on a person or data subject.

Under the GDPR, when consent is required, it must be informed and specific. Recital 32 of the GDPR provides that data must be collected for a single specified explicit and lawful purpose. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them.

The data sharing agreements proposed in the Bill are to be welcomed, particularly the personal access portal. However, if the type of processing envisaged under the data sharing agreements requires consent and if the processing or sharing is different in purpose from the initial purpose for which the data were collected, the data sharing agreements will not address the necessity for informed specific consent. Amendments Nos. 6 and 9 would remedy the issue.

That is a problem. If one has consent for a specific process and wants to process data for a new purpose, it needs to be asked for again as the initial explicitly given consent no longer applies. It is good that public services are efficient and that State agencies and public bodies reduce cost. We fully support this idea, of course, but it is a separate argument. The State cannot act illegally and our amendments are trying to make sure it does not. It is up to the Minister of State and his Department to come up with the administrative solutions to deal with them.

At the heart of the amendments is the idea that the once-only collection of data that the Government is proposing seems to be justified solely on the grounds of so-called efficiency. It is not really clear for whom it is efficient. If one boils things down to basics, the Bill has two main goals, namely, to provide a legal basis for public bodies to share data among each other and to set down safeguards for the individuals whose data are being shared. The latter aspect concerns governance. While the Government has spent quite some time thinking about the sharing aspect, our key concern boils down to the fact that the governance aspect does not seem to be as well developed. That is potentially a great problem for the State as it could result in litigation in the years ahead.

One of the arguments for the sharing aspect is that having to give details to every public service body with which one has to interact every time one signs up is an absolute pain. Sharing is pitched as something to make it super-handy for everybody such that he or she will not have to bother submitting information as the relevant bodies will already have it. Not everybody will be of that view. Everybody agrees that Google, for example, is a really handy search engine, but it happens to do worrying and intrusive things with one's data. Many might say they are happy with the trade-off and that it does not really bother them all that much, which is grand. Those people are not affected by anything we are doing here. For most people, the trade-off is worth it, but it is not for everybody. If the Government was trying to implement a system whereby we all had to use Google by law and accept the privacy trade-off, it would be pretty extreme and outrageous and there would be a big outcry. However, that is what the Government is trying to do in opposing our amendments. It is not really that different. The Government is stating that if one wants to use public services, one must sacrifice control of one's private data. Many could not care less and that is a trade-off they would be happy to make, but some would care and Irish and European law is on their side. We are setting ourselves up for a hiding to nothing if our amendments are not accepted.

We have heard the Government state previously that the ability to opt out is not necessary because people have a right to object after their data have been shared. That is a little late. It is after the damage has been done, which is not sufficient.

Private data are best understood as a form of private property, of which I had believed Fine Gael Deputies, in particular, would have been very fond. If we use this as a metaphor, data are really like a private house. What the single customer view does is give the keys of one's house to hundreds of people and tells them they can come in any time they like without being asked. Our amendments are trying to state: "You can have a copy of our keys and that it is very nice of you to come in and feed the cats while I am away, but I would rather you did not share my keys with everybody else without asking me first from now on." That is not a huge ask and that is all we are seeking. It is eminently reasonable. The Government has stated it might be a little costly to implement what we propose, but we are only talking about small numbers because most will accept the trade-off for convenience. As I stated, however, not everyone will accept it, but the numbers will not be considerable.

It is extremely likely that down the line the Government will be forced to give people an opt-out, whether on foot of an individual case being taken to the Europe court or by the European Commission. It is far better that we address this issue now before more specified bodies come on board and rolling this back becomes even more expensive. Let us face it - that is what the Government is trying to do.

We saw the other week the consequences of the Government not listening when it was told that what it was doing was not legal and could not stand up. An example arose in the Graham Dwyer case. He won his case on the retention of mobile phone data. A former Chief Justice described the data retention and access system in Ireland as amounting to mass surveillance of the entire population and had told the Government to fix it, but it ignored him. The Data Protection Commissioner, in her 2017 annual report, said the retention of the current regime of access to telephone and Internet records by State agencies was not an option, but she was ignored also. Look where that mess got the Government. Why do we not avoid setting ourselves up for another huge mess down the road and correct the problems now by offering an opt-out for those who want one?

There was an interesting lecture last week by Marc Rotenberg from a US privacy NGO called the Electronic Privacy Information Center. He spoke at a free legal aid conference about the issue of data privacy. It was a very interesting presentation, at the end of which he asked what star we followed because it was highly complex and difficult to get this matter right. It was always going back to the ultimate constitutional imperative to protect and recognise individual rights. I fear that, in the catch-all provisions we are including, effectively for all public bodies to have data-sharing capabilities, we risk being in breach of the fundamental rights of individuals to privacy and be able to give consent where the legislation applies. We cannot be certain about the applications. Amendment No. 6 seeks to protect the best approach to data privacy, although it is burdensome, as Deputy Clare Daly submits. I remember discussing the point that our data retention laws seemed to be in breach of European fundamental rights. I argued at the time that it would come back to haunt us. I believe the Department of Justice and Equality introduced the measure in question. Particularly in a country that seeks to be at the forefront of the new digital industry and that benefits so much from being a centre for the digital services industry, we need, in both the public and private sectors, to set the highest possible standards. While it might be burdensome and require a lot of governance and effort on the part of the State, it is better and proper for us to seek to set the highest standard. Included in this are standards that allow citizens to withdraw consent.

Mr. Rotenberg cited the example of China. I am not saying we are in this category. The Chinese Government is using access to all sorts of online social data to build a really frightening surveillance state. We are not in that space, but as the use of artificial intelligence, facial recognition and a range of digital technologies evolve, it behoves us to be ever-more vigilant in protecting individual rights, which is the purpose of the amendment we propose.

I shall speak first to amendments Nos. 6 and 9. The two amendments, in the names of Deputies Wallace and Clare Daly, propose that a person be allowed to opt out of the once-only principle that a person need provide details only once for a public body. The once-only principle is only one of a list of purposes in section 13 of the Bill, at least one of which must be engaged for the data sharing to be permitted. If the amendments were to be agreed to and this were to be the only purpose on which a public body wa relying to share data, individuals would have to resubmit documents to public bodies, rather than enjoying the benefit of the once-only principle. For example, the back-to-school clothing and footwear allowance which is paid to almost 105,000 families requires no application to be made by beneficiaries.

Nobody in the House wants to see that collapse as a result of the amendments. A vulnerable family who opted out of the once-only principle would have to provide all of the information. Surely that is not what the House wants.

Let us take another example. When people die, their data need to be shared to update records throughout the public service. This ensures public bodies do not keep attempting to make contact, which can be very distressing for the relatives. I am sure that is not what Deputies want either, but it would be the net outcome of the amendments. It also reduces the likelihood of identity fraud occurring. If before he or she died, a person had opted out of the once-only principle, there would be no way to update their records automatically and prevent letters, emails and telephone calls from continuing to be made during what must be a very difficult time for any person's family. That is why we have included provision for the sharing of data of deceased persons in section 11 of the Bill.

Another example is the centenarians bounty paid to persons who reach the age of 100 years. Deputy Clare Daly referred to grounds of efficiency. Payment of the bounty requires the Department of Employment Affairs and Social Protection to provide details of persons approaching their 100th birthday for the President's Establishment. Under the amendments proposed, they would no longer be able to be provided. Those who would choose to opt out of the provision would be likely to miss out on receiving the bounty.

To ensure a person can be offered a third level place the CAO and QQI share personal data, including examination results. This is required to be done to determine eligibility for third level education courses. If people could opt out, how would they get into college if their results still needed to be verified?

The amendments would militate against the purpose of the Bill and the obligation placed on public bodies to provide an excellent and efficient service. They would also militate against the efficient and effective use of taxpayers' money by public bodies. I am sure the House does not intend that to be the outcome.

Amendment No. 7 in the name of Deputy Eamon Ryan would require the express consent of every person in each instance of data sharing. That would not be practical and it would impose a huge burden on people to provide consent every time they wanted to avail of a service that relies on data sharing. I have a few examples. I mentioned the back-to-school allowance. The scheme supports almost 105,000 families in providing clothing and footwear for almost 190,000 children. The payments are completely automated and require no application to be made. The net result of the amendment would put them in jeopardy. Does the Deputy want to create a situation where all 105,000 families would have to contact the Department of Employment Affairs and Social Protection to give their consent before the payments could be processed? How many children would be left out and what cost, burden and level of bureaucracy would be placed on the Department as a result?

Another example is the warmer homes scheme, with which I know that the Deputy is very familiar. It offers free energy efficiency upgrades to vulnerable families in receipt of welfare payments such as the fuel allowance. The Deputy is no doubt aware that one of the biggest barriers to the uptake of the scheme to retrofit housing stock is inertia. The paperwork involved is off-putting and results in non-participation. If the Bill is enacted, it will finally be possible for the Department of Employment Affairs and Social Protection to share data with the Sustainable Energy Authority of Ireland, SEAI. The application of the once-only principle in this area will drive greater uptake of the scheme since it will make it more accessible to people by eliminating unnecessary paperwork and make it easy for the SEAI to offer upgrades to those who might not necessarily even know that they are eligible for the scheme. That will make a significant contribution to reducing our carbon emissions and lift vulnerable persons out of fuel poverty through the scheme. They may not necessarily be aware that they are eligible for it and they may find the bureaucracy involved burdensome. I presume the Deputy does not want to create new barriers of bureaucracy to the uptake of the scheme by requiring people to give their consent before the SEAI or the Department of Employment Affairs and Social Protection could share the information, but that would be the net result of the amendment.

I will refer to some of the situations in which it is inappropriate for public bodies to require people's consent to share their data. The local property tax involves data sharing between the Department of Housing, Planning and Local Government, local authorities and Revenue. Where a person did not give express consent for sharing to be undertaken, the property tax could not be collected. There is also application of penalty points to a person's driving licence, an issue with which Deputy Wallace will be very familiar as I had this discussion with him on Committee Stage. It requires information to be shared between the Courts Service and the Department of Transport, Tourism and Sport. If consent was n ot given, penalty points could not be applied.

Every citizen aged 18 years or over whose name is on the register of electors can be called for jury duty. If consent was to be required for information on the electoral register to be shared with the courts, it would have a hugely detrimental effect on the judicial system. In fact, it would probably bring the criminal justice system to a virtual standstill. I know that the Members who have proposed the amendments do not want to see such a situation emerging. However - this is important because we had a lot of discussion on it in the Seanad - the net result of what is being proposed would be a virtual collapse of existing public services because information is already shared between public bodies, as Deputy Eamon Ryan knows as a former Cabinet Minister. The net result of his amendment and the amendments proposed by Deputies Wallace and Clare Daly would be to remove legal certainty that this can happen. The net result of the amendments would be the virtual collapse of the criminal justice system, while aspects of the clothing and footwear allowance scheme would become questionable. Access to schemes that some find burdensome and bureaucratic would be further away, while our carbon footprint would be even bigger. I am sure Deputy Ryan would not want to have his name attached to something that put barriers between people and a sustainable energy carbon reducing scheme.

It is my understanding - perhaps we can receive some clarification on it - that the default position is that data are shared and that all the amendment is looking for is a mechanism to be put in place to allow people to opt out if they so choose. That is my understanding of the wording of the amendment. If that is the case, somebody should have that option. If people do decide to opt out and there are consequences, people should be aware of them before they opt out. My understanding is that the default position is that data will be provided and shared under the Bill and that all the proposers of the amendments are seeking is a mechanism to be provided to allow people to whom a service is being delivered, or is to be delivered, by a public body to opt out so as not to allow their data to be shared. If there are consequences, every individual will be aware of them.

On the penalty points issue, I have made the point that Article 6 of the GDPR lists various exceptions to the consent requirement. One such exception is the processing necessary for the performance of a task carried out in the public interest or the exercise of official authority vested in the controller. It is not an issue. The Minister of State is protesting a little much. He has raised the case of people who reach the age of 100 years who might not receive their money because they decide not to opt in and sign up to this arrangement. How many people reach the age of 100 years in a particular year and receive their money? It would not be too difficult. If people were to decide not to opt in and not to sign up and reach the age of 100 years and want to receive the money, they could make a call and get the money. A grant payment does not come down the lane on its own; people have to apply for it. Probably 99% of people will sign up to the facility the State is creating, which is fine. The Government is being alarmist about the very small percentage of people who believe their consent is necessary for their data to be shared. I do not want to go over it again, but amendments Nos. 6 and 9 simply state consent would have to be informed. In other words, informing has happened, but the consent has to be for processing for a specific purpose or reason. That is where the Bara judgment comes in. It was a case years ago in Europe in which the Romanian Government was found guilty of processing data for a purpose other than the original one. It has now been superseded by the GDPR. From our point of view, what we are looking for is reasonable.

Most of the contribution of the Minister of State was a straw man in building up a case that we were not making. The rationale behind his argument appears to be that when people give their data to one public service provider, they should not be allowed to opt out of having that data shared with another public service provider.

That is just nonsense. Most people will agree to the convenient approach being outlined. Those who do not will have European law on their side and should have the right to opt out. If that means, for instance, that a person's son or daughter has to ring him or her to avail of the €100 from the President when he or she reaches his or her centenary, that he or she has to initiate it or whatever else it might be, so be it, if that is his or her choice.

The logic of the Government's position is that if people want to use public services, they must sacrifice control of their privacy and data. That is not legal. Part of the problem is that the Minister of State is trying to play catch-up with some of the decisions made on services from the Department of Employment Affairs and Social Protection. I refer again to the case of Mr. Graham Dwyer. During the years the State has not listened on the question of data and it is going to end up costing us a lot of money. It is far better that we do something about it now. This would be an opt out. I should also say it would be a once-only requirement. It would not have to be done every year. When people make contact with a particular service, they go through the issue of consent the first time. That is their choice and there is no problem in that regard.

It is certainly not our intention in drafting the amendment that in every single public service transaction with the State, whether with the Department of Employment Affairs and Social Protection, TII or others, people would repeatedly have to be asked for consent. I fear that we are doing something akin to what is happening in the United Kingdom where broad and sweeping capabilities in sharing data actually bring risks with them. I do not see it being beyond the powers of the State, in setting up this new governance system, to ensure there would be mechanisms in place where consent would be given in an efficient, simple and clear manner. I refer to people stating they consent to their data being used in all social welfare and other State mechanisms. It would be similar to how I can adjust my privacy settings when I deal with the private sector in the area of social networks, etc. As Deputy Wallace said, that is going to be legally required for security and other reasons. To have a sweeping, broad and open approach, or a one-size-fits-all approach, as we use more data and data collection systems become more sophisticated risks creating instances that will breach our basic fundamental rights. I would prefer to see us retaining some mechanism where individuals will be able to manage the consent given.

Deputy Eamon Ryan's amendment is very clear. It refers to "such disclosure, only where expressed consent has been sought and received". We would probably need a database the size of County Cavan to hold all of the notional consents. I return to the original point. Who is going to consent in this Shangri-La to having his or her information shared between the Department of Employment Affairs and Social Protection and the Revenue Commissioners? Who is going to consent to having his or her information shared between the register of electors and the Courts Service for use in selection for jury duty? That would be the net result of what is being proposed. It has fazed many. The Bill has been designed to give legal effect to things we are already doing. Deputy Eamon Ryan's amendment would undermine everything we do already, including in the Department he formerly headed. I refer, in particular, to families dependent on social welfare payments. I have mentioned the back-to-school clothing and footwear allowance where consent would have to be given. In the case of children's allowance and information shared with public health nurses, new mothers are busy enough following the delivery of their child, with the changes that brings. Can we imagine the bundle of papers that would arrive through the letterbox or be sent from the maternity hospital courtesy of the amendments? Consent would have to be given to everything that followed.

I understand from where Deputy Jonathan O'Brien is coming. However, we need to consider a situation between the Department of Agriculture, Food and Marine, perhaps concerning an overpayment, and the Revenue Commissioners and the Department of Employment Affairs and Social Protection, for instance, where an investigation is needed. Imagine if someone had to be asked for his or her consent to be investigated? In this Utopian world we are trying to inhabit where the State is somehow out to get people we are going to be all cuddly. Deputy Wallace has stated 99% of people will consent. If 99% of people will consent to have their information shared between the Revenue Commissioners and the Department of Employment Affairs and Social Protection, I must definitely be inhabiting a different world from the one in which some Members of this House are living.

No. The Minister of State-----

The Bill will give legal certainty in the services already being provided. The amendments passed mean that we are going to have a problem. Services being provided are being undermined. People need to start to take this issue more seriously.

That is misrepresenting our position.

I know that it is the night before the break-up before Christmas, but this is a very important Bill. Public services could, potentially, be undermined by some of the carry-on this evening. This is very serious.

The proposer of the amendment has a right to reply.

That is correct. The Deputy moved the amendment.

I think the tone adopted by the Minister of State is unfortunate because some Members on this side of the House and in the Seanad have spent a considerable number of hours preparing and working on this issue which we take incredibly seriously. A number of the points made by the Minister of State are irrelevant, while some are very worrying. Let us take the back-to-school allowance scheme. If people do not opt out of it, they will receive the allowance. That is absolutely different from other situations. If, for some bizarre reason, people decide that they want to opt out of the back-to-school allowance scheme, tough. The onus will be on them to go and claim the entitlement elsewhere. That is the import of the amendment.

Worryingly, the Minister of State spoke about the Department of Employment Affairs and Social Protection sharing data with the Sustainable Energy Authority of Ireland in the context of possible grants for which people may not even be aware that they are eligible. That certainly should not be the import of data sharing under the Bill. It was meant to be about a situation where if a person went to body A, the transfer of information to body B should take place in connection with a service for which the person had applied. It should not be the State coming up with these things. I guarantee that if the Minister of State goes down this path and does not make the correction, he will open up the possibility of even greater fines being incurred than originally envisaged in bringing about the legislation. He made points about Deputy Eamon Ryan's amendment, but ours would provide for an opt-out.

Amendment put:
The Dáil divided: Tá, 32; Níl, 51; Staon, 0.

  • Barry, Mick.
  • Brady, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Collins, Joan.
  • Collins, Michael.
  • Coppinger, Ruth.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Clare.
  • Ferris, Martin.
  • Healy, Seamus.
  • Howlin, Brendan.
  • Kelly, Alan.
  • Kenny, Gino.
  • Kenny, Martin.
  • McGrath, Mattie.
  • Mitchell, Denise.
  • Murphy, Catherine.
  • Murphy, Paul.
  • O'Brien, Jonathan.
  • O'Sullivan, Maureen.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Sherlock, Sean.
  • Smith, Bríd.
  • Stanley, Brian.
  • Wallace, Mick.

Níl

  • Aylward, Bobby.
  • Brassil, John.
  • Breen, Pat.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Butler, Mary.
  • Cahill, Jackie.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • Curran, John.
  • D'Arcy, Michael.
  • Deering, Pat.
  • Doherty, Regina.
  • Donnelly, Stephen S.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Gallagher, Pat The Cope.
  • Griffin, Brendan.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
  • O'Dea, Willie.
  • O'Donovan, Patrick.
  • Phelan, John Paul.
  • Ring, Michael.
  • Ross, Shane.
  • Scanlon, Eamon.
  • Smith, Brendan.
  • Stanton, David.

Staon

Tellers: Tá, Deputies Clare Daly and Mick Wallace; Níl, Deputies Seán Kyne and Tony McLoughlin.
Amendment declared lost.
Amendment No. 7 not moved.

I move amendment No. 8:

In page 20, to delete lines 34 and 35.

This has the effect of removing section 21(6). Section 21 requires one of the parties to a data sharing agreement to be designated as the lead agency responsible for carrying out the functions specified in the section and elsewhere in the Bill relating to data sharing agreements. It sets out a number of functions that the lead agency would have and some of these functions relate to the control of data under the GDPR. Section 21(4) provides that a person can direct a request to exercise their data subject rights to the lead agency.

Section 21(6) of this section was included on foot of an amendment proposed in the Seanad, providing that "This section is without prejudice to and does not limit the rights of a person as a data subject in respect of any or all data controllers in a data sharing agreement.". I accepted the amendment in the Seanad because my officials and I believed it simply reinforced the position that under the GDPR a person has a right to direct requests to exercise data subject rights to any data controllers in a data sharing agreement. Subsequently, the Attorney General's office raised concerns regarding the subsection. The concern is that the wording "This section is without prejudice to" introduces legal uncertainty in whether data subjects would have full access rights under the GDPR in respect of any data sharing agreement arrangements made under the legislation. It implies there is prejudice in other sections of the Bill and it is on that basis we have sought to amend it.

The Attorney General's office has advised that this provision should be deleted because the inclusion of this subsection brings about unnecessary doubt as regards the hierarchy between rights under the GDPR not referred to in section 21(6), on the one hand, and section 6, on the other; as well as rights under the GDPR referred to in section 21(6) on the one hand and other sections of the Bill on the other. I withdrew the amendment on Committee Stage in order to provide an opportunity to explain the advice I have received from the Office of the Attorney General to the House. I thank the Members who met me and officials from my Department for their constructive engagement. The policy intent is that no rights under the GDPR and the Data Protection Act 2018 are to be affected by this Bill. This is already achieved by section 6, which provides that nothing in this Act shall affect the operation of data protection law and by the doctrine of supremacy of European law. Accordingly, I ask that the provision be deleted rather than cause any unnecessary uncertainty for citizens. I ask the House for its support.

We are supporting the Government on this and we thank the officials for the clarification.

Amendment agreed to.
Amendment No. 9 not moved.

I move amendment No. 10:

In page 33, to delete lines 25 to 27.

Amendment put:
The Dáil divided: Tá, 37; Níl, 44; Staon, 0.

  • Breen, Pat.
  • Brophy, Colm.
  • Bruton, Richard.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • D'Arcy, Michael.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • Phelan, John Paul.
  • Ring, Michael.
  • Ross, Shane.
  • Stanton, David.

Níl

  • Aylward, Bobby.
  • Barry, Mick.
  • Brady, John.
  • Brassil, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Casey, Pat.
  • Chambers, Jack.
  • Collins, Joan.
  • Collins, Michael.
  • Coppinger, Ruth.
  • Crowe, Seán.
  • Curran, John.
  • Daly, Clare.
  • Donnelly, Stephen S.
  • Ferris, Martin.
  • Gallagher, Pat The Cope.
  • Healy, Seamus.
  • Howlin, Brendan.
  • Kelly, Alan.
  • Kenny, Martin.
  • Lahart, John.
  • McConalogue, Charlie.
  • McGrath, Mattie.
  • McGrath, Michael.
  • Mitchell, Denise.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Paul.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Dea, Willie.
  • O'Rourke, Frank.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Rabbitte, Anne.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Smith, Brendan.
  • Smith, Bríd.
  • Stanley, Brian.
  • Wallace, Mick.

Staon

Tellers: Tá, Deputies Seán Kyne and Tony McLoughlin; Níl, Deputies Mick Wallace and Clare Daly.
Amendment declared lost.

I move amendment No. 11:

In page 37, to delete lines 30 and 31.

This amendment seeks to remove the criteria to have public competition by the board, or whatever is established by the Minister of State. It is important that we mandate the board to have public competition around procurement. The Minister of State mentioned on Committee Stage that he wanted to have soft laws around procurement that do not impact all the other elements of the public procurement service. On this side of the House, it is important that we have that mandated by law. It was agreed by the Minister of State in the Seanad and I do not think he has justified the removal of that from the Bill. We need an explanation as to why the Minister of State would remove public competition from the Bill.

I discussed this at length with Deputy Chambers in committee and I thank his spokesperson for engaging with me and my officials in the past couple of days. We also discussed this at length. The provision that is referred to here is: "Any contracts in respect of consultancy, advice or other services to the board shall be subject to public competition." It is already the case in hundreds, if not thousands, of pieces of legislation, across a whole spectrum of the availability and provision of public services, that the same procurement rules and procedures apply. In no other legislation is it suggested that a reference like this would be made.

Having sought the advice of the Attorney General, and having discussed it with Deputy Jack Chambers's spokesperson in my Department with my officials, we agreed that it would call into question thousands of other services that are procured by the State where this provision is not explicitly laid out. I do not imagine it is the intention of anyone in the House to have a situation where services which are procured elsewhere through other legislation without this provision are thrashed out in the High Court. That would be the net result.

That was discussed at length by Deputy Jack Chambers's representative and my officials and we agreed, on that basis, that it was necessary, having consulted the Attorney General, to remove this provision. It is explicit in this Bill that the same rules for the provision and procurement of these services are the very same as they are for every other service that the State procures, which amounts to several billion euro annually.

We liaised with the Minister of State's officials on this issue. The Minister of State withdrew the amendment on Committee Stage to allow us engage with his officials and we said to his officials, during our briefing, that we have major issues around the procurement process. It is flawed in many areas and needs to be reviewed. We will support the Minister of State on this particular amendment if he gives a commitment that issues about procurement processes will be a priority for his Department. Having spoken to the Minister of State's officials, we understand that expressly putting something into one piece of legislation which is not in many other pieces of legislation could open up legal challenges in many areas. None of us want to see that. The Minister of State has to recognise that there is an issue around procurement which has not been addressed and needs to be.

As a member of the Committee of Public Accounts, I see reports where procurement processes are not being adhered to week in and week out. That needs to be addressed. We are happy to support the Minister of State on this amendment if he gives me a commitment that it will be a priority for his Department.

I thank Deputy Jonathan O'Brien for his engagement. He will recall from discussions we had on the procurement element of the Bill, which is not in any other piece of legislation, that the net result of not accepting this amendment will be that these Houses will be clogged in the new year, amending hundreds if not thousands of pieces of legislation to insert this provision because in no other piece of legislation where a service is procured on behalf of the State is the need to do this explicitly stated. I do not want a situation where we call into doubt the role of the Office of Government Procurement and all of the people in the State who currently procure services and goods on our behalf. I made an offer to the Opposition spokespersons and Deputy Jonathan O'Brien that my Department is willing to engage in any way, through the Office of Government Procurement and my officials, regarding this or any other service.

Different parts of the Bill have been challenged up until now but this is also an important amendment.

The Minister of State did not answer Deputy Jonathan O'Brien's question about making the problem around procurement a priority for the Government in the new year. It came to light only a couple of months ago that Accenture had broken over 90 procurement rules in 2017 alone. It broke 75 in 2016. There were not even buns thrown at it. Does anyone give a damn about procurement rules? Hardly a month goes by without a scandal in the construction industry or where issues arise around an entity that did work for the State. It is almost as if we are happy to pretend that it will be grand and it will work its way out.

Deputy Jonathan O'Brien asked the Minister of State if he is prepared to prioritise these issues next year. I wonder what the answer was.

The answer is "Yes". I have already said to Deputies Jonathan O'Brien and Cowen that I am only delighted to hear any suggestions or proposals that any Member of the House can bring forward to me, as Minister of State with responsibility for public procurement, and engage with the Office of Government Procurement. That is a standing invitation to every Member of the House and Ministers, Departments and Opposition spokespersons will be written to on that basis. I am only too happy to engage with Members who have policy-related matters to do with procurement, as opposed to issues that have affected individuals, that they wish to bring forward.

Amendment put and declared carried.
Bill, as amended, received for final consideration.

When is it proposed to take Fifth Stage?

I propose that Fifth Stage be taken after the recess in the new year.

Can the Minister of State give a specific date?

I suggest a date within the first week if that is agreeable to the House.

The first sitting day?

I suggest 15 January.

Can I ask why it is not being proposed to take Fifth Stage now? I did not agree. I am asking why it is being proposed to put it back to the new year. It is very unusual. Having dealt with Report Stage tonight, I would rather continue to Fifth Stage. It is not my issue if the Minister of State's nose is out of joint at some of the amendments that have been passed, it is his issue. I would rather that Fifth Stage was taken tonight and any proposal to defer it will be opposed. I ask the Minister of State to clarify the position.

I am simply looking for Fifth Stage to be taken in the first week back to seek advice from my officials, the Office of the Attorney General and to engage further with representatives of the Opposition, once the opportunity arises.

That is not agreed.

Question put: "That Fifth Stage be taken on 15 January, 2019."
The Dáil divided: Tá, 38; Níl, 28; Staon, 21.

  • Brophy, Colm.
  • Bruton, Richard.
  • Byrne, Catherine.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • Creed, Michael.
  • D'Arcy, Michael.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Griffin, Brendan.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • Phelan, John Paul.
  • Ring, Michael.
  • Ross, Shane.
  • Stanton, David.
  • Varadkar, Leo.

Níl

  • Barry, Mick.
  • Brady, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Collins, Joan.
  • Collins, Michael.
  • Coppinger, Ruth.
  • Crowe, Seán.
  • Daly, Clare.
  • Ferris, Martin.
  • Healy, Seamus.
  • Howlin, Brendan.
  • Kelly, Alan.
  • Kenny, Martin.
  • McGrath, Mattie.
  • Mitchell, Denise.
  • Murphy, Paul.
  • O'Brien, Jonathan.
  • O'Reilly, Louise.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Smith, Bríd.
  • Stanley, Brian.
  • Wallace, Mick.

Staon

  • Aylward, Bobby.
  • Brassil, John.
  • Browne, James.
  • Butler, Mary.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Casey, Pat.
  • Chambers, Jack.
  • Chambers, Lisa.
  • Curran, John.
  • Donnelly, Stephen S.
  • McGrath, Michael.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eugene.
  • O'Callaghan, Jim.
  • O'Dea, Willie.
  • O'Rourke, Frank.
  • Rabbitte, Anne.
  • Scanlon, Eamon.
  • Smith, Brendan.
Tellers: Tá, Deputies Seán Kyne and Tony McLoughlin; Níl, Deputies Mick Wallace and Clare Daly.
Question declared carried.

The decision is that Fifth Stage will be taken on 15 January. Some Members have asked if they can comment but there is no motion before the House so, regrettably, Standing Orders do not allow me to call anyone to comment.

I want to make a clarification also. There was a suggestion that perhaps we could do some other business and amend the Order of Business, but we cannot circumvent the Business Committee. The Business Committee recommends business and we would be setting a very dangerous precedent if we did that.

A Leas-Cheann Comhairle, what has happened here tonight is an absolute disgrace. Nobody on the benches opposite can ever accuse anyone of bullying in the workplace again after what happened here tonight. People were bullied by the Government tonight and it should be put on the record that their actions were an absolute disgrace.