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Seanad Éireann debate -
Wednesday, 13 Jul 2022

Vol. 287 No. 6

Civil Law (Miscellaneous Provisions) Bill 2022: Committee and Remaining Stages

I welcome the Minister of State, Deputy Naughton, back to the House.

Sections 1 to 36, inclusive, agreed to.

Will you slow down, please?

There are no amendments to any of these sections. The Senator is free to speak to any section she wishes. I am keeping an eye out all of the time.

There is a mart somewhere in Ireland missing an auctioneer.

Senator Gerry Horkan (Deputy Acting Chairperson)

I thank the Senator. There is always a future somewhere.

Sections 37 to 41, inclusive, agreed to.
SECTION 42

Amendments Nos. 1 to 4, inclusive, are related and may be discussed together by agreement.

I move amendment No. 1:

In page 26, line 6, after “collect” to insert “relevant”

I welcome the Minister of State to the Chamber. Amendment No. 1 seeks to insert the word "relevant", in respect of personal data which can be collected by relevant persons for relevant immigration and social welfare enactments. The purpose of the amendment is to ensure that not only data which are relevant to an immigration or social welfare enactment are collected. While I acknowledge that what constitutes relevant data is unclear, in the context of my amendment, it is important that we are explicit about the specific types of data which will be collected under the Bill. Following engagement with Department officials, I know and welcome that no new data will be collected under this Bill. I am seeking clarification that no new data will be collected under this Bill that cannot already be collected under other Acts. I am seeking to clarify that information.

Amendment No. 2 seeks to delete "special categories of personal data". Amendments Nos. 2 and 3 seek to delete references in Part 5 of the Bill to the collection and processing of special categories of personal data. Following engagement with Department officials on this matter this week, I will not move amendments Nos. 2 and 3, with the leave of the House, considering that special categories of data, for the purposes of this Bill, are provided for in existing legislation.

Amendment No. 4 seeks to insert an explicit reference to the undertaking of a "data protection impact assessment", prior to the processing and sharing of personal data under the Bill. I thank the Department for engagement ahead of Committee Stage, from which I have learned that a data protection impact assessment will be undertaken prior to the enactment of the review. I would welcome confirmation from the Minister of State, on the record, in this respect.

Senator Currie is here with a group from Dublin West. They are very welcome. The Cathaoirleach of Galway County Council is also here, Councillor Michael "Moegie" Maher. He is very welcome to the Chamber. I hope all of our guests have a lovely day in Leinster House.

I will take amendments Nos. 1 to 4 together, as the Cathaoirleach Gníomhach has outlined. At the outset, it is important to highlight that this Part does seek to authorise the collection or processing of personal data that is not already authorised for collection or processing elsewhere in statute. It will enable a one-stop shop mechanism that allows the relevant immigration officials to collect information on behalf of social protection officials that can be used for social welfare purposes and vice versa.

Senators will note that the power to gather data only relates to relevant immigration and social welfare enactments, which are defined in section 41. Those relevant immigration enactments include section 60 of the International Protection Act 2015, which provides for the data to be gathered in order to grant a person temporary protection, such as those fleeing Ukraine.

"Relevant social welfare enactment" includes section 262 of the Social Welfare Consolidation Act 2005, which relates to the data to be gathered in order to issue a PPS number. Essentially, Part 5 will allow an applicant to give the data required for temporary protection and a PPS to a single officer, once, and have it automatically transmitted for processing.

No data can be gathered under this part that is not required by such a relevant enactment. Furthermore, all the provisions of this legislation are subject to the general data protection regulation and the Data Protection Act 2018. Consultation also took place with the Data Protection Commission, DPC, in the drafting of this legislation.

Amendment No. 1 proposes to add the word "relevant" to the term "personal data". I understand the concern of Senators that only required and relevant data would be collected. However, I do not intend to accept this amendment because the definition, as drafted, is sufficient. Further expansion would require further definition elsewhere in this part of the Bill. As matters stand, personal data is defined in the new section 41 as having the same meaning as it has in the data protection regulation. It is important to highlight that the personal data being collected must be provided for under the relevant immigration enactment or relevant welfare enactment as prescribed here. Provision in respect of personal data is already made in existing legislation.

Amendments Nos. 2 and 3 propose the deletion of the reference to special categories of personal data. This reference is necessary. Removing it would limit the complete collection of personal data for the purposes of the relevant enactments set out in the Bill, and the objective of facilitating a one-stop shop. There are not multiple special categories of data to be collected here but it may arise in certain instances provided for in the relevant enactments referred to in the Bill. For instance, in the case of the registration process in section 9 of the 2004 Immigration Act, there is provision for biometric data to be collected.

In the context of amendment No. 4, I understand the concern of Senators to the effect that all due care be taken before these systems are commenced, that all appropriate risks are assessed and that all necessary protections are in place. A data protection impact assessment, DPIA, is being undertaken in respect of the processing of data under Part 5 by officials in the Department of Justice, in consultation with the Department of Social Protection. The assessment will be completed before this processing is operationalised. The case that the general data protection regulation, GDPR, outlines the circumstances in which a DPIA is required. As a result, the requirement for specification in the legislation for an assessment to be carried out does not arise. It is also important to note that the processing of data under section 43 is subject to suitable and specific measures, which means measures to safeguard the fundamental rights and freedoms of data subjects in processing personal data of those subjects.

For the reasons I have outlined, the Senator will appreciate I cannot accept these amendments.

I appreciate and acknowledge the Minister of State's contribution. I am happy to withdraw the amendments.

Amendment, by leave, withdrawn.
Amendment Nos. 2 and 3 not moved.
Section 42 agreed to.
Amendment No. 4 not moved.
Section 43 agreed to.
Section 44 agreed to.
NEW SECTION

Amendments Nos. 5 and 6 are related. Amendment No. 6 is a logical alternative to amendments No. 5. As a result, the two may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 5:

5. In page 27, between lines 24 and 25, to insert the following:

“Review (Part 5)

45. The Minister shall, not later than six months following the commencement of this Part and every six months thereafter, oversee a review of the collection and processing of data under this Act, with particular reference to the necessity and proportionality of the continued collection and processing of personal data, including special categories of personal data, for the purposes outlined in section 42.”.

Amendment Nos. 5 and 6 are variations of each other. Their purpose is to insert a review clause into Part 5. Inserting such a clause would ensure that provisions relating to the collection and processing of personal data, including sensitive special categories of data, would be the subject of sufficient post-legislative oversight and scrutiny. Given the types of data that are to be collected, it is important we continually review the necessity and proportionality of the continued collection of this data and we must ensure safeguards that are in place to protect personal data are working effectively. The Bill, like the majority of the legislation passed through these Houses, will be subject to ad hoc post-legislative scrutiny by means of a 12-month post-enactment review. However, given the sensitivity of the data to be collected and processed under Part 5, it is important that we are explicit as to the processes that will ensure post-enactment scrutiny and oversight of the provisions in this specific part. The Minister of State and the Department are conscious of the need to provide robust protections in respect of personal data and have included safeguards in the legislation to this effect, but I would welcome an explicit provision that would ensure the post-enactment scrutiny of Part 5 by means of the insertion of a review clause or something similar.

Amendment Nos. 5 and 6 both relate to the issue of a review. The Departments of Justice and Social Protection are fully accountable to and subject to oversight and regulation by the DPC for compliance with data protection legislation. The Department of Justice has embedded the principles relating to processing of personal data, as set out in Article 5 of the GDPR, across all its processing activities. In addition, the Department must be able to demonstrate compliance under the principle of accountability. The Department has appointed a data protection officer who conducts regular internal audits and compliance checks across the Department to ensure compliance with data protection obligations. They also ensure privacy notices are in place in respect of all processing activities, including data sharing, and are available to receive and review any queries in relation to such processing activities.

Article 24 of the GDPR sets out the responsibilities of data controllers. It states that the controller shall implement appropriate and technical and organisational measures to ensure and be able to demonstrate that processing is performed in accordance with the GDPR. It goes on to state those measures shall be reviewed and updated where necessary. Furthermore, section 36 of the Data Protection Act 2018 sets out what suitable and specific measures for data processing should be taken by the controller to safeguard the fundamental rights and freedoms of data subjects. This is also set out here in section 43 in respect of the processing of data in accordance with section 42. Such safeguards include, inter alia, limitations on access to the data, time limits for erasure of data, targeted training for those involved in processing, logging mechanisms and encryption. All such measures are being considered and further explored during the process of completing a DPIA in advance of any processing undertaken in accordance with the proposed Part 5.

As a final point, this Bill is subject to the same post-enactment review as all similar legislation. For the reasons outlined about the safeguards and review mechanisms in place, I cannot accept the proposed amendments.

I am happy to withdraw the amendment on the basis of that response.

Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Sections 45 to 56, inclusive, agreed to.
NEW SECTIONS

Amendment Nos. 7 and 8 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 7:

In page 35, between lines 24 and 25, to insert the following:

“Challenges without cause shown

57. (1) Each party may challenge without cause shown seven jurors and no more.

(2) Whenever a juror is lawfully challenged without cause shown, they shall not be included in the jury.”.

I acknowledge that the Minister for Justice, Deputy McEntee, has taken on board the concerns of the families about the right to have juries at inquests and that juries be independently selected. I also appreciate the fact that an inquest is inquisitorial and fact-finding and does not involve an adversarial process. Maybe the Minister of State can clarify a matter for me in order that I do not have to press these amendments. The rationale for tabling them relates to challenging jurors if there is a reason any of - I will not call them parties because that is what they are called in court cases - those who are involved in the inquest process want to raise an issue with the coroner if they have concerns about particular jurors.

I am being told that section 59(2) provides for that at any stage prior to the jury being sworn in. Will the Minister of State clarify whether a legal party to the inquest can make an objection to the coroner about a juror under section 59(2)? If so, it is great, but we must ensure that, if such a challenge is made and the inquest gets under way, the process is not appealed to judicial review. Lawyers differ. The legal team that I have spoken to says that the Bill does not provide for the challenging of jurors but the Department is saying that it does. My concern is that, if there can be such differences in opinion, the matter can be challenged in the courts, leading to further delays in the inquest, which no one wants.

I thank the Senator for her ongoing interest in and advocacy on this matter. I wish to express my personal sympathies to those who have been impacted by the Stardust tragedy – the families, the victims and the wider community. The Minister, Deputy McEntee, is keen for this legislation to be enacted in order for the Stardust inquest to progress.

Regarding the amendments, Part 8 of the Bill responds to concerns that the selection of the Stardust inquest jury should be as representative as possible. Thus, the provisions at Part 8 displace, for the Stardust inquest, the current provision whereby, at the coroner's request, the Garda assembles an inquest jury. In providing for this selection process, careful regard was had to certain relevant provisions of the Juries Act 1976 and, in particular, for the county registrar to assist the Dublin coroner to assemble the inquest jury. The jury will be selected in public before the coroner prior to jurors being sworn in for the inquest. The coroner is empowered to discharge a juror if she considers such action necessary.

However, it must be borne in mind that the coroner's inquest is an inquisitorial process and must be conducted according to the provisions of the Coroners Act 1962. There are no "parties" at an inquest. It is not an adversarial process. There are no defendants or plaintiffs, appellants or respondents. The inquest is a fact-finding process. It may not, by law, seek to blame or exonerate any person or assign liability.

I understand the genuine concerns of the Senators in tabling these amendments about seeking to ensure that a jury is appropriately selected and no persons who are ineligible to serve or who have a conflict of interest would serve. These amendments seek to replicate sections 20 and 21 of the Juries Act 1976 regarding parties challenging potential jurors. However, those provisions deal with jury selection in criminal and civil proceedings, at which liability is to be determined between opposing parties. Such provisions are not appropriate to an inquest situation. Indeed, to seek to replicate them could give rise to uncertainty and legal complications. Section 59(2) of the Bill provides for the coroner to direct at any stage that a person shall not serve as a juror for any stated reason if the coroner considers it desirable in the interests of justice that she should give that direction.

Regarding judicial reviews, no one can rule out the inquest being challenged, so I cannot give the Senator that guarantee, but I hope she appreciates that, for the reasons outlined, I cannot accept these amendments.

On the basis of the Minister of State's comments, I am happy to withdraw the amendments.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 35, between lines 24 and 25, to insert the following:

“Challenges with cause shown

57. (1) Each party may challenge for cause shown any number of jurors.

(2) Whenever a juror is challenged for cause shown and such challenge is allowed by the coroner, the juror shall not be included in the jury.”.

Amendment, by leave, withdrawn.
Section 57 agreed to.

Before moving on to the next amendment, I wish to welcome Deputy Niamh Smyth, who is here with her cousin, Mr. Ruaidhrí Maguire, and his professional dance partner, Ms Danila Marzilli, who are from the Baltic Opera Ballet in Poland and are performing this week in Dublin. They are welcome to Leinster House and I hope they enjoy their day.

NEW SECTION

I move amendment No. 9:

In page 35, after line 41, to insert the following:

“Inspection of Jury Panels

58. (1) Any party shall be entitled to reasonable facilities to inspect a panel of jurors free of charge and to a copy free of charge on application to the county registrar.

(2) The panel referred to in subsection (1) is the panel as prepared for and in advance of the sittings, including any supplemental panel so prepared.

(3) The right to inspect the panel shall, however, include a right to be shown, on request, all alterations to the panel and the names of any persons summoned and, on request, to be told of any excusals.”.

I am seeking an assurance. In the selection of a jury in a court case, people have a reasonable facility to inspect the panel of jurors free of charge. This amendment seeks to ensure that information is available to all of those involved in the inquest. While section 62 may address our concerns, this amendment seeks to ensure that the coroner informs people about what would make them ineligible to sit on the inquest's jury. Subsection (1) is on the transparency of the selection process and making that information, including jurors' summonses, available to those involved in the inquest, but if the inquest is going to be held in public, part of that process should involve informing jurors of what the potential conflicts of interest could be so that they can be clear on whether they should excuse themselves.

This amendment is related to the previous amendments and my comments on those are valid in this instance. Amendment No. 9 seeks to replicate the provisions of section 16 of the 1976 Act regarding the inspection of a panel of jurors. However, it is clear that the purpose of the information concerned under that Act is essentially to enable a challenge to a juror in a criminal trial and civil proceedings at which liability is to be determined between opposing parties. Therefore, the inclusion of such a provision is not appropriate to an inquest situation. No disadvantage arises in this respect for any interested person concerned with the inquest. The selection of the inquest jury must remain clearly in the exclusive remit of the coroner, who is independent in the performance of her functions.

Section 57(2) provides:

Before the selection is begun the coroner for the coroner’s district of Dublin shall—

(a) warn the jurors present that they must not serve if they are ineligible or disqualified and as to the penalty under section 62 for doing so, and

(b) he or she shall invite any person who knows that he or she is not qualified to serve or who is in doubt as to whether he or she is qualified or who may have an interest in or connection with the Stardust inquest concerned to communicate the fact to the coroner (either orally or otherwise as the coroner may direct or authorise) if he or she is selected on the ballot.

I hope that Senator can appreciate this situation and that I cannot accept the amendment.

I appreciate that. I also apologise, as I referred to section 62. It is actually section 57(2)(b), which clarifies one of our concerns.

I did not understand the Minister of State's remark that the jury selection was solely the duty of the coroner. Does that mean that the information on summonses will not be available to interested parties in the inquest?

It will not, but their names will be called out in open court.

Amendment, by leave, withdrawn.
Sections 58 to 62, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Bill received for final consideration.

When is it proposed to take Fifth Stage?

Question proposed: "That the Bill do now pass."

A substantial amount of work went into the Bill and it is important legislation. I congratulate the Departments involved, as well as the Minister of State, Deputy Naughton, and the Minister for Justice, Deputy McEntee, on bringing this through. It will do quite a lot of good.

Question put and agreed to.
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