Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move amendment No. 71:

In page 31, between lines 30 and 31, to insert the following:"Processing of special categories of personal data and Article 10 data for reasons of substantial public interest

48.(1) Processing of special categories of personal data shall be lawful where the processing is carried out in accordance with regulations made undersubsection (3).

(2) Article 10 data may be processed where the processing is carried out in accordance with regulations made under subsection (3).

(3) Regulations may be made authorising the processing, where necessary for reasons of substantial public interest, of either or both of the following —

(a) special categories of personal data, and

(b) without prejudice to the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, Article 10 data.

(4) Without prejudice to the generality ofsubsection (3), regulations made under that subsection shall identify

(a) the substantial public interest concerned, and

(b) the suitable and specific measures to be taken to safeguard the fundamental rights and freedoms of data subjects in processing the personal data which is authorised by the regulations.

(5) For the purposes of subsection (4)(b), subsections (2)to (6)of section 35shall apply in like manner to regulations made under subsection (3)as they apply to regulations made under section 35.

(6) Regulations may be made under subsection (3) by—

(a) the Minister, following consultation with such other Minister of the Government as he or she considers appropriate and the Commission, or

(b) any other Minister of the Government following consultation with the Minister, such other Minister of the Government as he or she considers appropriate and the Commission.

(7) The Minister or any other Minister of the Government, as the case may be, making regulations under subsection (3)shall have regard to the need for the protection of individuals with regard to the processing of their personal data, and without prejudice to the generality of that need, have regard to—

(a) the nature, scope and purposes of the processing,

(b) the nature of the substantial public interest concerned,

(c) any benefits likely to arise for the data subjects concerned,

(d) any risks arising for the rights and freedoms of such subjects, and

(e) the likelihood of any such risks arising and the severity of such risks.

(8) Regulations made under subsection (3)shall—

(a) respect the essence of the right to data protection, and

(b) enable processing of such data only in so far as is necessary and proportionate to the aim sought to be achieved.

(9) In this section, "Article 10 data" has the meaning assigned to it bysection 52.".

The amendment provides for the replacement of section 48 with a new section. The section replaces section 2B(1)(b)(II) of the 1988 Act. However, the original wording of section 48 was narrower in scope than section 2B(1)(b)(II) and it did not extend to personal data in respect of criminal convictions and offences. This is because data relating to criminal convictions and offences fall within the definition of "sensitive personal data" under the 1988 Act whereas it forms the subject matter for a separate Article 10 under the GDPR. The purpose of the amendment, therefore, is to bring section 48 more fully into line with the 1988 Act. Yesterday, I outlined some of the statutory instruments made under the corresponding section 2(B) of the 1988 Act in respect of the historic institutional abuse inquiry in Northern Ireland, the coroner's inquest into the death of Arlene Arkinson, and the coroner's inquest into the Kingsmill massacre. The processing of personal data under those regulations could involve the processing of personal data in respect of criminal convictions or offences or the alleged commission of an offence. These are matters of great importance and they necessitate the making of regulations to facilitate processing of sensitive personal data. The provisions of section 48 will permit the making of similar regulations in the future where that is justified for reasons of substantial public interest such as those I have outlined.

I will not accept amendments Nos. 72 and 73 because they seek to narrow the scope of the regulation-making power under the section. If I was to confine the scope of the section to the processing of data by public authorities in cases of urgency, it would mean that the making of regulations such as those we made to facilitate the McAleese committee and its important work would no longer be possible. I have concerns about the content and the cumulative impact of the proposals in amendments Nos. 74 to 76, inclusive, and I am not minded to accept them.