Amendments Nos, 1, 10 to 15, inclusive, and 17 are related and will be discussed together.
Courts and Civil Law (Miscellaneous Provisions) Bill 2022: From the Seanad
The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
Title: In page 7, line 15, after “1995;” to insert “to amend the Immigration Act 1999; to amend the Immigration Act 2004;”.
Seanad amendment agreed to.
Amendments Nos. 2 and 18 are related and will be discussed together.
Seanad amendment No. 2:
Title: In page 7, lines 21 to 26, to delete all words from and including “to”, where it firstly occurs, in line 21 down to and including “2018” in line 26 and substitute the following:
“to make provision for enabling the Data Protection Commission to prohibit the disclosure of confidential information by persons engaging with it in connection with the performance of certain functions, to issue a reprimand to a controller or processor in certain circumstances and to provide for the District Court to have jurisdiction, concurrently with the Circuit Court and the High Court, to hear and determine an action taken by a data subject in respect of his or her rights under the Data Protection Regulation and, for those and other purposes, to amend the Data Protection Act 2018”.
We are resolutely opposed to amendments Nos. 2 and 18, which together introduce section 26A and provide an overbearing and easily abusable opportunity to stifle democratic oversight. Subsection (5) of the proposed section encapsulates the problem the Minister of State is curating. Under it, "confidential information" means "information the disclosure of which could, in the opinion of the Commission, reasonably be expected to prejudice the effectiveness of the performance of a relevant function". Effectively, the Data Protection Commission, DPC, would be entitled to self-certify which of its own processes cannot be revealed by complainants and other parties. Transparency is supposed to be the whole point of GDPR, yet here we have the potential criminalisation of people or bodies for discussing the details of their own GDPR cases. I hope the Minister of State sees the problem. A conflict is being created between the requirement of transparency under GDPR and the DPC's demands for a complete shutdown of transparency during the process.
Free speech and transparency are at the heart of any democracy, and section 26A is an attack on free speech, transparency and democracy. It seems abundantly clear that the main beneficiaries of this legislation will be the big tech companies, which have a long track record of abusing commercial confidentiality protections to undermine public debate as well as a long history of abusing the privacy and confidentiality of their customers’ data. Big tech companies such as Meta and Google consistently try to undermine GDPR by attacking non-profits and making spurious claims of commercial sensitivity around information in the public domain. To provide an example, I have a letter with me from Mr. Max Schrems describing being the subject of consistent and repeated unsuccessful attempts by Meta and the DPC to prevent the European centre for digital rights from participating in GDPR procedures. Section 26A can only be seen as an attempt to give big tech and the DPC protection from the scrutiny of normal journalistic and societal oversight.
We are acutely aware of the importance of the tech industry and its corporate tax revenues but we cannot allow such considerations to undermine the foundations of democratic oversight. We have had representations from Amnesty International and the Irish Council for Civil Liberties, ICCL, which have identified the serious threat to the democratic process posed by these amendments. There is a significant discrepancy between the practice of the DPC in Ireland and that of other national data protection authorities. What the Government is proposing will make it even harder to get the DPC to share information with third parties, including our partners in Europe, seriously undermining our credibility in this area.
Additional criticism of the proposed section 26A includes: no way of challenging overly broad claims of confidentiality by the DPC or big tech; the creation of a conflict between the requirement of transparency under GDPR and the DPC being allowed to implement a complete shutdown of transparency during the process; the creation of a direct conflict with anti-strategic lawsuit against public participation, or anti-SLAPP, legislation, effectively introducing a free pass for big tech to engage in SLAPP actions relating to GDPR through claims of commercial sensitivity; it is questionable whether the section can extend a duty of secrecy under Article 54(2) of the GDPR to third parties, given that, as we understand it, this is not part of EU law; isolating the DPC from oversight by the Executive, Legislature and Judiciary; and territorial jurisdiction is unclear.
We have had detailed representations from a number of respected non-partisan experts and GDPR-related organisations throughout Europe. We ask the Minister of State to heed the warning, withdraw the amendments and revert with a different proposal that can be properly debated.
I do not invoke the notion of a threat to free speech lightly but I ask the Minister of State what the source of this amendment is. Who lobbied for its inclusion? Who benefits from this? I caution him that he risks becoming the witting or unwitting instrument of the big tech-led subversion of the whole point of GDPR, all supposedly in the name of trying to make the DPC’s life easier by not having to subject itself to normal public scrutiny. These are bad amendments. If we pass the inclusion of section 26A, we will effectively undermine all democratic oversight of the administration of justice in these important cases.
There can be many advantages to a miscellaneous provisions Bill and it can be useful in legislating quickly to remedy an oversight. Far too often, however, the Government abuses this gift to insert amendments at the last minute with little or no scrutiny. Amendments Nos. 2 and 18 seek to diminish the efficacy of the DPC further. It is a blatant effort to hamstring and silence. The amendments come in the twilight of the legislation’s passage through the Houses, being included at the last minute. In fact, one of the amendments attempts to shoehorn in an entire section, 26A, which is a gagging clause that will prohibit persons engaging with the DPC from disclosing information, information the Minister has claimed is confidential even before enacting this Bill.
The amendments’ wording will give the DPC broad powers to designate information, including even information that is not commercially sensitive, as confidential. How the DPC goes about its tasks is already opaque. It is exempt from most freedom of information rules and does not hold public hearings. These amendments will make it even less transparent. The Government inserted them in the final Stages of the Bill, evading proper scrutiny. The amendments may hinder EU co-operation in upholding people’s data rights. The DPC’s relationship with its European counterparts appears to be poor. We can see that in disputes over a sanction that the DPC did not want to impose but was subsequently imposed after the DPC engaged with counterparts. The DPC is currently suing all other GDPR supervisory authorities at the European Court of Justice. The Government’s amendments may continue this behaviour, empowering the DPC to limit the proper flow of information to its European counterparts.
The amendment may conflict with forthcoming European law and we talked about that recently. The European Commission is due to propose new rules for how GDPR enforcers work together and how they treat people who bring complaints to them. We do not have a date for that but we have been told it is expected fairly soon. It looks like this has been a very successful effort in lobbying by the big tech companies. To do this without adequate scrutiny, where it has the potential to do great harm, is really taking very serious risks. Essentially, withdrawing these two amendments would be the better option so that they can be introduced or considered at another point, when there is adequate time to go through the entire legislative process whereby they are open to amendment, they come back on Report Stage and they go through the proper rigour.
I have had correspondence from a lot of organisations and individuals on this. There is a real concern about what is being proposed here and the method being used to do this. It is being done in a way that is bypassing the kind of scrutiny that we have a right to expect when laws are being made. There has been no effort to consult on this or to involve the public in this change. These are substantial changes and the Social Democrats will certainly be opposing these two amendments. That said, the better option would be to withdraw them.
We will also be opposing this amendment. There is definitely something going on here and I would be interested in hearing the case from the Government for this amendment. A lot of concern has been expressed about it. It is already the view of many that the DPC uses its powers to direct non-disclosure far too liberally and this is only going to increase that practice. I have some sympathy for the DPC because it is working within the constraints imposed upon it by the Government. I note that some extra funding was provided after we advocated for it but there is an issue of accountability here.
The proposed section 26A, which was introduced like a three-card trick at the last minute, is going to allow the DPC to single-handedly declare virtually all procedures before it confidential, even if there is no commercially sensitive material discussed, and sharing information about procedures would become a criminal offence. Has this been run past the Attorney General? Does the Attorney General have an opinion on it? Is it compliant with the right to freedom of expression? It has been criticised across Europe and at home. Why are we rushing this through? Why is it not in a stand-alone Bill or in some other Bill rather than being lumped in with this legislation?
The new language will apply to members of the public. Confidentiality conditions previously applied to the DPC's staff but there is an exemption for the staff when speech is permitted by law. However, members of the public have that legal permission to speak provided in the Constitution which seems to make the amendment moot. Has the amendment been adequately considered?
We have heard Government spokespersons in recent times denying that this is a last-minute intervention. They said the Dáil was notified in October or November but very little was said and it was clouded in vagueness. There has been no pre-legislative scrutiny of this and no debate in the Dáil until now. Aside from the briefest of mentions, nothing much was said in the Seanad either. These ministerial amendments should be subject to the same scrutiny as any other amendments made as the Bill was passing through. Only a single hour has been allowed to us to debate this amendment, along with 23 other amendments, before the Bill is passed. We should not be rushing this. The amendment should be withdrawn. Government spokespeople have said the amendment will not prevent people from saying that they have sent a complaint to the DPC but I am not sure that is the case. What matters is that the amendment could gag people and prevent them from speaking about how the DPC actually handles their complaint. People might not be able to speak about how big tech firms or public bodies are misusing their data. That is an opinion that is out there. For example, will it still be possible to use disclosures made at the Oireachtas Committee on Justice in the past or will the DPC be able to silence critics and cut off some sources?
There has been a new era of fairness and openness in the light of new litigation guidelines. The Supreme Court has said that even quasi-judicial bodies should hold public hearings. In contrast, this amendment will make decision-making even more opaque, adding to the exemptions from freedom of information rules that could have aided in its reform. I urge the Minister of State to consider withdrawing the amendment and allowing proper scrutiny of it at a later stage.
I should have said at the outset that this is a timed debate. There are 45 minutes remaining.
Given the time constraints, I will try to be as quick as I can. There is an issue with the procedures of the DPC and with how it does its business. The Oireachtas Committee on Justice has looked at this numerous times. We have produced a full report on it, with plenty of recommendations for the Minister to implement.
We frequently hear that there are no issues with the DPC and that other European countries are just jealous of our position and power. However, I do not think the High Court is jealous of the position of the DPC or of anything to do with our tech companies. The High Court, in the case of DPC v. Doolin, highlighted excessive delays and poor decision-making, as well as how the DPC had misinterpreted and misapplied the definitions of "data" and "data processing". Data and data processing are utterly fundamental to the DPC's role so if the High Court - and later the Court of Appeal - is picking these up and highlighting them as problematic, then there is a significant problem in the DPC. This amendment does not improve those things and I share the concerns voiced by other Deputies in relation to the proposed amendments.
One of the main concerns is whether this amendment passes constitutional muster. Is it going to end up being appealed to the courts, thus delaying the work of the DPC, which is already delayed? Is it going to snarl up the courts needlessly? There seems to be a real lack of willingness among our drafters to engage with the consequences of what the Chief Justice said in the Zalewski case. The Chief Justice said, and I have referred to this in the House many times, that justice administered in quasi-judicial bodies cannot fall below the standard of justice administered in the courts. Time and again we seem to be failing to implement that. I was on my hind legs in here discussing the Court Proceedings (Delays) Bill. Again, there seems to be a failure to provide the level of justice as administered in the courts under Article 34. There is a fundamental issue here and those who are drafting Government legislation need to wrap their heads around that decision and those very clear words of the Chief Justice.
Even before this amendment was introduced, I would have argued that the DPC is not really in line with Zalewski and with what is constitutionally required. Now we take this step and it would be remiss of me to let this amendment pass without raising these concerns. I ask the Minister of State to clarify whether the Attorney General has signed off on this. Has he been consulted? Has the Government gone to the Attorney General and asked whether this amendment passes constitutional muster? Does it meet the test set out in Zalewski by the Chief Justice? I do not think it does and legislation that is unconstitutional is just going to cause problems and delays as it gets appealed through the courts. That is my main question. The other main issue, which again may reflect the drafting, was also raised earlier but I will come back to it later.
I share the concerns raised by my party colleague, Deputy Ó Ríordáin, and others about this proposed amendment. This last-minute amendment was inserted in the Bill in the Seanad.
As such, it has not undergone pre-legislative scrutiny or previous scrutiny in the Dáil. This is a valid procedural concern, first of all. All Members are conscious it is an occupational hazard of miscellaneous provisions Bills that we see a hotchpotch of different amendments to different sets of legislation. That is often to be expected but this amendment goes further.
Serious and substantive concerns have been raised by organisations such as Amnesty International, the ICCL, and others, as well as by a Government Deputy just now, in respect of the import of the amendment. It would make a significant change in terms of the powers of the Data Protection Commissioner. The definition of confidential information has an overly broad ambit. It refers to: "information the disclosure of which could, in the opinion of the Commission, reasonably be expected to prejudice the effectiveness of the performance of a relevant function". There is a valid concern in respect of the breadth of that definition.
Deputy Ó Riordáin referred to Max Schrems, who is well known as a litigant on these issues. He, along with his colleague, Professor Herwig Hofmann, reached out to us to outline their concerns that the amendment would, in effect, allow the DPC to single-handedly declare procedures before it confidential, even where no commercially sensitive material is discussed. Given that information has previously been declared confidential in several significant cases here, there is a further concern that putting this in place would amount to a departure from the European Union common approach whereby such information is usually available. In addition, there is a concern that it would conflict with and violate the constitutional provisions on freedom of expression. That concern has already been raised by a Government Deputy, as well as with many Deputies by the ICCL. The Minister must address the concern that this would make DPC decision-making more opaque and could damage the flow of information between the DPC and peers across the European Union. A range of issues have been raised with us.
It is unfortunate that none of us has had sufficient opportunity to consider the amendments in more detail prior to them coming to the House. In refer to the concerns that have been raised, the correspondence that I am sure the Minister of State has received and, in particular, the concerns in respect of the source of the amendment and the reason it was produced at the last minute. Who was pushing for this amendment? Why has it been tabled now? Why is the Government using a miscellaneous provisions Bill to do this in July, in the last few weeks of the term? It is an old chestnut in the Department of Justice. When I did a lot of justice debates in the Seanad, we always saw last-minute miscellaneous provisions Bills coming in. Some of them sought to make significant changes. It is not good legislative practice and all present would like it to be changed. Many of us thought it had changed. That is why it is particularly disappointing to see these amendments. Like previous speakers, I appeal to the Minister of State to withdraw the amendment and give us more opportunity to consider it and hear further about the impetus for it, from where it came and its purpose. Why are we considering the amendment now? Why was it slipped in at the last minute? The Labour Party certainly cannot support it. A number of Deputies across the House have expressed their concerns on and critique of it. It is important for the Minister of State to hear those concerns.
I will be brief. There is significant concern in respect of these two amendments. In light of the manner in which they were expedited, the Minster of State needs to reflect on the gravity of the amendments. This could have far-reaching consequences on free speech and how data are collected. I ask him to withdraw the amendments on the basis of democracy and respect for other Deputies.
I engaged with the Minister on the detail of this in recent days. I thank him for those conversations. I have engaged with many others, including people whose views I highly rate, such as Johnny Ryan of the ICCL and Max Schrems, to whom reference was made. We had the pleasure of hosting Max at the Oireachtas Joint Committee on Justice on two occasions. He was here in person for one meeting and he participated in another online. He corresponded with me during the week regarding this amendment. There is general alarm.
Before I get into the detail of the amendment, I note that, unfortunately, there has been a pattern in recent years of data protection legislation or amendments affecting the area coming through quickly. That is sometimes forced upon us by external factors such as decisions within Europe or of the Judiciary, but at other times it emanates from within these buildings, if not these Houses, necessarily.
The Communications (Retention of Data) (Amendment) Act 2022 was problematic when it came before us approximately one year ago. I noticed yesterday that the Minister went to the High Court and got a freezing order on a substantial block of data for reasons of national security. I understand that is the only basis on which the Minister can freeze data. The significant issue at the heart of that Act is that it would not be possible for such an order to be granted in the areas of organised or serious crime. If the Graham Dwyer scenario were to unfold on a mountain tonight, would he even be apprehended? For whatever bizarre reason, the carve-outs to retain data that are contained within the data retention directive do not apply to organised or serious crime, but only to national security. Of course, national security is important. Sometimes we are naive in that regard. That said, organised and serious crime are real and present ongoing dangers that are outside the scope of any freezing order from the High Court or elsewhere. That is regrettable.
Turning to the detail of the Bill, I have been lobbied on it. I have communicated with many people and listened to their concerns. The central concern is that people would be gagged, the platforms and other companies would probably benefit from it and there may be a degree of cover and an undesirable lack of transparency in the context of certain inquiries and investigations. I hear those concerns. Mr. Schrems made a point that I very much took on board. He was concerned that if this amendment had been in force when he came before the justice committee, he would have been prevented from speaking. That would be contrary to natural justice, how we organise ourselves in these Houses and the duty of every committee to get to the nub of a problem and hear full and unfiltered testimony. If Mr. Schrems were to be correct in this regard, I would be extremely concerned. In addition, it has been suggested, possibly by Johnny Ryan - I have received various items of correspondence on the matter - that the amendment, as drafted, would allow members of the public to speak of a complaint or investigation when they are permitted by law anyway.
Reference has been made to Article 40.6 1° of the Constitution, which relates to freedom of expression. Without being alarmist, the Constitution, of which all of us in these Houses are very proud, or certainly ought to be, was drafted at a time when the clouds of totalitarianism were descending upon Europe. It was and is very strong on civic and political rights. Without being alarmist, we are in an age with social media companies and platforms and when the power to use and abuse data presents a real threat to democracy and society. We need to be mindful of that at all times. If we get these decisions wrong, they can have far-reaching and unintended consequences.
That said, I welcome the engagement I have had with the Minister of State, Deputy Browne. I thank him for it. As on all occasions when I interact with him, he has been helpful and informative. The Minister put it to me that there are a number of protections contained within this legislation. The position may not be as chronic as has been suggested. I would welcome the Minister of State making that point formally at the end of the debate, perhaps. I do not think it is envisaged that a scenario where Mr. Schrems or others would not be able to take part in a committee meeting is possible or plausible under this legislation. The scenarios where information can be held back are specific. The reason must be given to accompany them. That aura of confidentiality ends when the protected function ends. When the investigation is over, the data is then out there. If an investigation requires confidentiality to allow it to take place and come to a conclusion, that is a temporary and limited protection and it is done for good reason, I am told. If the Minister of State says that, I believe him, to put it simply. I look forward to his remarks in respect of how this issue will be managed. Legislation pertaining to data protection, data retention and similar areas has often been put through on the fly, sometimes at the eleventh hour or without adequate consideration, be it at a committee or elsewhere. That is a pattern I would prefer to see halted and revisited. That may be something we need to consider before the next amendment, Bill or change in this area.
I only became aware of the amendment this evening and am not as well briefed as my colleagues who are present but I wish to share with the Minister of State some of the correspondence sent to me on the matter. The correspondence states that the new section 26A the Government proposes to insert into the Data Protection Act relates to information shared by citizens that could be deemed to be confidential. In essence, the DPC could impose a gag on some information coming into the public domain.
The new section 26A goes far beyond just truly confidential information. There has been no public discussion on this problematic limitation on freedom of speech in this last-minute amendment. Truly confidential information is already protected and the aim here is to clearly limit the freedom of speech.
Reference is made to the Data Protection Commission having fined Meta over €1.6 billion for various practices. The correspondence states that this would never have happened or cases will not be allowed to be brought or could now be shut down. It also states that, if enacted, the amendment may further damage the proper flow of information between the Data Protection Commission and its peers across the European Union because the DPC will have the power to designate as confidential material that should be shared with other European authorities.
I echo the calls of other Members in the Chamber. This is a last-minute amendment. I also support other Deputies in asking why and how this amendment came so late in the day without any kind of scrutiny. Why it is being proposed and who is pushing to have it proposed? I ask the Minister of State to withdraw the amendment. He may seek to reintroduce it but let us first have proper public and pre-legislative scrutiny and see where that goes. This proposal has come late in the day. I caution the Minister of State about making bad law. We do not want to introduce very significant powers for the DPC. For many obvious reasons, that could be a negative development. I ask the Minister of State to withdraw the amendment inserting the new section 26A.
The case in relation to this amendment has been very well made by learned colleagues. I will speak briefly on the procedural issues involved. In recent years, we have spent a long time changing the way we prepare legislation. We have done so because legislation is so important and impacts on everybody, particularly legislation that impacts on data and people's data which are particularly precious. We are now told data are the most valuable commodity in the world, more valuable as a commodity than oil. We have a pre-legislative scrutiny process that allows external actors to look at what is proposed by Members of this House or the Government, have their opinions parsed and analysed and make presentations to us. We then go through the Stages of the Bill.
It is very bad practice, and contrary to everything we have tried to do procedurally for the last number of years, to have a last-minute amendment inserted in a Bill. This is particularly true of a last-minute amendment with unforeseen or unknown consequences. As definitive as the Minister of State might be, he cannot give the assurance that he knows absolutely the full consequences of this amendment. I ask that he take the advice of so many speakers, including Deputies on his side of the House, that this amendment be removed by the agenda, put through the normal process in the next available Bill and given the consideration that is needed.
All legislation rests on the understanding that the people will abide by and support it, and that it is right. We are the people's representatives and in making and enacting laws, we act in their name. In doing that, we need to give them the opportunity to have their views expressed and, where there are real concerns - all of us have received messages of real concern - that those can be addressed answered and, as far as practicable, assuaged. It is a matter of ministerial strength for a Minister to say "No" and that he or she listened. This is where law is made. It is not in Government Buildings but here on the floor of the Dáil. The fact that any Minister can command a majority by marshalling troops and forcing them in here is not an act of strength. In my judgment, it is an act of not listening to the democratic voice. This amendment may well be enacted before the end of the year but it should not be enacted now because it will lessen the processes and procedures we adopt to make good law.
Amendment No. 18 inserts a new section 26A into the Data Protection Act of 2018 to provide a prohibition on disclosure of confidential information by persons engaged with the Data Protection Commission in connection with certain defined functions. There appears to be some misinterpretation of the scope and purpose of this amendment and, frankly, some misconceived arguments have been made in recent days. I will address some of these.
The purpose of the amendment is to bolster the integrity of the statutory process and the provision to the DPC of confidential and commercially sensitive information in the course of carrying out certain statutory functions. It applies only to persons engaged with the DPC in the context of the performance of certain defined statutory functions, including inquiries and investigations. It applies only to confidential information which is defined in the new section as information that is commercially sensitive given in confidence or, in the opinion of the Data Protection Commission, likely to prejudice the effectiveness of the relevant function of the DPC. To be clear, nothing in this amendment will prevent a complainant from speaking out about the nature of their data privacy complaint or that a complaint had been made to the Data Protection Commission. There is no impact on journalists or media reporting and no impact on the obligations of the DPC under the GDPR.
Under Article 58 of the GDPR, the DPC and all other national supervisory authorities have far-reaching powers, including the power to order a controller or processor to provide any information it requires for the performance of its tasks and the power to obtain access to all personal data. It has unique investigative powers as a body and can compel the provision of information by people and companies. The DPC must exercise these powers in a manner consistent with other applicable provisions of the GDPR, including obligations arising under Articles 5 and 32 relating to the maintenance of security and confidentiality of personal data. The DPC has identified a need for a provision to be made along the lines of section 26A in order for it to be in a position to carry out its functions under the GDPR effectively, efficiently and lawfully and to ensure fair procedures for data controllers and data subject alike. In short, the DPC has sought this, not the industries. It follows from Article 52(4) of the GDPR that the State is under a duty to ensure the DPC is provided with all or any ancillary powers necessary for the effective performance of its tasks and the exercise of its powers as a national supervisory authority.
Deputy Ó Ríordáin raised an issue with the flow of information. This provision will not in any way interfere with the proper flow of information between the DPC and other supervisory authorities. As a public body, the DPC is required to exercise its powers in a manner consistent with EU law. This includes a duty of the DPC under Article 51(2) and chapter 7 of the GDPR to co-operate with other supervisory authorities and the European Data Protection Board, EDPB.
As to how the matter was brought forward, it was flagged previously. It was brought up on Report Stage and Final Stage in the Seanad. It was quite quick but I made a clear statement and nobody else commented on the matter. It was, therefore, flagged previously that such an amendment would be brought.
That is because the public did not see it. Nobody outside the Seanad saw it when it was introduced.
It was introduced last week.
That is not the way laws should be made.
The Attorney General has of course approved this legislation, as is always the case.
The Zalewski case related to procedures of the Workplace Relations Commission, WRC, which is a body established under the operating practices pursuant to the Irish law. Unlike the WRC, the DPC is an independent supervisory authority within the meaning of chapter 6 of the GDPR and is responsible for the monitoring the application of EU data protection law "in order to protect the fundamental rights and freedoms of natural persons in relation to processing and to facilitate the free flow of personal data within the Union". As such, it is mandated under the GDPR and the Data Protection Act 2008 to carry out the task and exercise the powers of the national supervisory authorities and contribute to the consistent application of the regulation throughout the European Union.
Regarding the specific elements of the amendment, section 26A(1) provides that the Data Protection Commission may issue a writing notice to a person known as "a relevant person" where it is or will be providing that person with confidential information directing the person not to disclose the information unless required by law or authorised by the commission. The notice must identify the information that is confidential and the specific reason why with reference to the definition of confidential information in subsection(5), if it is confidential. Where a person fails to comply with a direction not to disclose, he or she commits an offence and is liable on summary conviction to a class A fine. This is an extension of the existing offence provisions which currently apply under section 26(3) to the new section 26A.
"Confidential information" is a defined term in the proposed section 26A(5) and means "commercially sensitive information" within the meaning of section 149(7) of the 2018 Act, information given in confidence and on the understanding that it will be treated as confidential and where the disclosure of such information would be likely to prejudice the giving to the commission of further information and it is important the commission continues to receive such information for the purpose of the performance of a relevant function or information the disclosure of which could, in the opinion of the commission, reasonably be expected to prejudice the effectiveness of the performance of a relevant function. The amendment, and therefore the ability of the commission to prohibit disclosure of confidential information only applies in the context or relevant functions, which are defined in the proposed section 26A(5)(a) as being:
(i) carrying out an investigation within the meaning of section 105,
(ii) handling a complaint within the meaning of section 107,
(iii) conducting an inquiry within the meaning of section 107,
(iv) handling a complaint within the meaning of section 118,
(v) conducting an inquiry within the meaning of section 118,
(vi) carrying out an audit under section 136(1), or
(vii) carrying out a data protection audit within the meaning of section 136(4),
or
... [functions] of an authorised officer under section 137(5) or 139(1).
There are also limits provided for in relation to the duration for which the obligation not to disclose lasts, while the proposed section 26A(4) provides that where information is confidential because its disclosure could prejudice the effectiveness of the performance of a relevant function, that ceases once the relevant function has been performed.
In conclusion, the provision is not about the Data Protection Commission telling the data subjects and their representatives, or both, what they can or cannot do with information they have obtained independently regarding alleged breaches of data protection rules. It is about the treatment of information provided to a person by the DPC. This is absolutely about protecting data; it is about protecting the data the DPC acquires in the performance of its unique role of investigation and inquiry. That is the information that is being protected here and not some of the other arguments that have been put up.
The Minister of State has to accept the Government is making a bags of this. It threw in an amendment in the Seanad at the last minute and now the Minister of State is coming in here for a guillotined debate on an amendment that could have extremely far-reaching consequences and he is telling us to just accept what he has read out. There has been no proper oversight, scrutiny or pre-legislative scrutiny of this amendment and the Government is doing it at the last minute. On no level would the Minister of State accept, as a Deputy in this House never mind a Minister of State, that this is the way to do business. The Government is chucking in the amendments in the Seanad and then coming in here in a time-limited manner and hoping to get away with it. It is not good enough. We are going to be opposing this amendment and pushing it to a vote.
Deputy Catherine Martin, le do thoil. Gabh mo leithscéal, I mean Deputy Catherine Murphy.
It keeps happening. We keep on getting confused.
You should be Minister.
I know. I thank the Cathaoirleach Gníomhach for the promotion. I ask the Minister of State where this came from. We cannot be-----
I answered that question. It came from the DPC.
-----in the Seanad and be here. The normal course of events is that it goes through a whole process. If any of us introduced legislation that was not thought out, the Government side would be telling us it did not want unintended consequences and wanted to bring this through the process which is there for that purpose. What have we got here? We are being told by the Minister of State that we should trust him, that everyone else is wrong, that he is the one who is right in this situation and that there will not be any unintended consequences. Poor process produces poor results and this is an appalling way to do business. I said most of what I wanted to say when I was speaking to this amendment to begin with. I will certainly be voting against the amendment, but the thing that should happen is for it to be withdrawn.
To give clarification on that last point, the DPC has sought this type of amendment and nobody else.
Then it should be brought through the normal process. Let anybody who has concerns about it be heard. The bottom line is any impactive legislation suggested by any State agency is processed by a Government Department and promulgated as a Bill. The committee Deputy Lawless chairs would take submissions from anybody who wants and hold hearings from anybody so that all their questions can be answered. If it is simply rubberstamped tonight it means those questions are unanswered except by a script that says it will be all right as it has come from the DPC. That is contrary to the way we normally make law, which has been accepted as the new process of making law. My final ask is for the Government to respect the House and its processes, withdraw this temporarily, let it go back to the committee, let the committee hear any submissions in the autumn and then if it is as the Minister of State says, it will be law before the end of the year in any event. It would not do any harm to anybody to have that level of delay. Is there a reason this is urgent this minute? Is there a reason the Minister of State can give the House that this must be done tonight and that having due process and allowing those with real concerns to have them fully aired and answered cannot be provided for?
There is no reason to delay this amendment. I have outlined the detailed reasons it is necessary. The request has come from the DPC.
Why have a parliament then? What is the point?
To ensure the commission is in compliance with the GDPR legislation. That is where it is coming from and why it is needed. I have set out clearly how this is actually quite limited in scope and in terms of processes where it will apply. The arguments being put forward do not meet what is set out in the legislation. Those concerns are simply not real.
Every expert says they are real.
It is contemptuous of the Dáil.
Why the urgency? We still have not heard that.
The Minister of State is treading on slightly dangerous ground tonight and using the Whip on his colleagues is also putting them on dangerous ground. As Deputy Howlin has outlined, there is a process here for bringing this type of legislation into being and it has not been followed in this case. This is a very late amendment to be bringing to the House, throwing in front of people and saying that the Government is happy with it, that the agency wants it and that it has been scrutinised sufficiently to go ahead. I disagree. The Minister of State should heed the words of the House and withdraw this and bring it back when we have had a proper chance to look at it. The Government is putting people in an unenviable position, to be frank. If this turns out to be bad law, there will be a lot of ramifications for the Minister of State and for others. I ask him to withdraw it.
Seanad amendment put:
The Committee divided: Tá, 73; Níl, 60; Staon, 0.
Tá
- Brophy, Colm.
- Browne, James.
- Bruton, Richard.
- Burke, Colm.
- Burke, Peter.
- Butler, Mary.
- Byrne, Thomas.
- Cahill, Jackie.
- Calleary, Dara.
- Cannon, Ciarán.
- Carroll MacNeill, Jennifer.
- Chambers, Jack.
- Collins, Niall.
- Costello, Patrick.
- Coveney, Simon.
- Cowen, Barry.
- Creed, Michael.
- Crowe, Cathal.
- Devlin, Cormac.
- Dillon, Alan.
- Donnelly, Stephen.
- Donohoe, Paschal.
- Duffy, Francis Noel.
- Durkan, Bernard J.
- English, Damien.
- Farrell, Alan.
- Flaherty, Joe.
- Fleming, Sean.
- Foley, Norma.
- Griffin, Brendan.
- Harris, Simon.
- Haughey, Seán.
- Heydon, Martin.
- Higgins, Emer.
- Humphreys, Heather.
- Kehoe, Paul.
- Lahart, John.
- Lawless, James.
- Leddin, Brian.
- Madigan, Josepha.
- Martin, Catherine.
- Matthews, Steven.
- McAuliffe, Paul.
- McConalogue, Charlie.
- McEntee, Helen.
- McGrath, Michael.
- McHugh, Joe.
- Moynihan, Aindrias.
- Moynihan, Michael.
- Murnane O'Connor, Jennifer.
- Naughton, Hildegarde.
- Noonan, Malcolm.
- O'Brien, Darragh.
- O'Brien, Joe.
- O'Callaghan, Jim.
- O'Connor, James.
- O'Dea, Willie.
- O'Donnell, Kieran.
- O'Donovan, Patrick.
- O'Dowd, Fergus.
- O'Gorman, Roderic.
- O'Sullivan, Christopher.
- O'Sullivan, Pádraig.
- Ó Cathasaigh, Marc.
- Ó Cuív, Éamon.
- Phelan, John Paul.
- Rabbitte, Anne.
- Ring, Michael.
- Ryan, Eamon.
- Smyth, Niamh.
- Smyth, Ossian.
- Stanton, David.
- Troy, Robert.
Níl
- Andrews, Chris.
- Bacik, Ivana.
- Boyd Barrett, Richard.
- Brady, John.
- Browne, Martin.
- Buckley, Pat.
- Cairns, Holly.
- Carthy, Matt.
- Clarke, Sorca.
- Collins, Michael.
- Conway-Walsh, Rose.
- Cronin, Réada.
- Crowe, Seán.
- Cullinane, David.
- Daly, Pa.
- Doherty, Pearse.
- Donnelly, Paul.
- Ellis, Dessie.
- Farrell, Mairéad.
- Fitzmaurice, Michael.
- Fitzpatrick, Peter.
- Funchion, Kathleen.
- Gannon, Gary.
- Gould, Thomas.
- Healy-Rae, Michael.
- Howlin, Brendan.
- Kenny, Gino.
- Kerrane, Claire.
- Lowry, Michael.
- Mac Lochlainn, Pádraig.
- McGrath, Mattie.
- McNamara, Michael.
- Mitchell, Denise.
- Munster, Imelda.
- Murphy, Catherine.
- Murphy, Paul.
- Murphy, Verona.
- Nash, Ged.
- Naughten, Denis.
- Nolan, Carol.
- O'Callaghan, Cian.
- O'Reilly, Louise.
- O'Rourke, Darren.
- Ó Broin, Eoin.
- Ó Laoghaire, Donnchadh.
- Ó Murchú, Ruairí.
- Ó Ríordáin, Aodhán.
- Ó Snodaigh, Aengus.
- Pringle, Thomas.
- Ryan, Patricia.
- Shanahan, Matt.
- Shortall, Róisín.
- Smith, Bríd.
- Smith, Duncan.
- Stanley, Brian.
- Tóibín, Peadar.
- Tully, Pauline.
- Ward, Mark.
- Whitmore, Jennifer.
- Wynne, Violet-Anne.
Staon
Tellers: Tá, Deputies Hildegarde Naughton and Cormac Devlin; Níl, Deputies Duncan Smith and Aodhán Ó Ríordáin.
Seanad amendment declared carried.
The time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 27 June 2023: "That Seanad amendments not disposed of are hereby agreed to in committee and agreement to the amendments is accordingly reported to the House."
Question put and declared carried.