Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I move amendment No. 85:

In page 37, line 3, to delete “to 22” and substitute “to 21”.

It has been a very difficult week. I am aware that Deputy Ó Laoghaire is opposing the section, and Deputy Wallace and I support him in that regard. However, on the basis of the debate on the section in the Seanad, we did not think that approach would be heard or accepted and have, therefore, taken a harm mitigation approach. However, we support Deputy Ó Laoghaire on the section other than in that regard.

As discussed in regard to amendment No. 6, section 57 allows for the restriction of rights under various articles for the purpose of so-called important objectives in the public interest. Amendment No. 85 proposes to change the rights which can be restricted under the section to those outlined in Articles 12 to 21 of the GDPR rather than Articles 12 to 22. It is not a major change but would mean that people would have the right not to be subjected to automated decision making or profiling under any circumstances under the section, which is important. The British legislation on this matter includes a provision similar to that which we are proposing and it is important in that regard.

On amendment No. 90, as previously mentioned, section 57 proposes that the Minister would have wide discretion in limiting the rights of persons under Articles 12 to 22 in respect of certain circumstances that are united under the vague banner of being in the general public interest.

The section also proposes to give the Minister wide discretion in limiting the rights of persons if he or she believes it is necessary to do so for the protection of the data subject or the rights and freedoms of others to do so. While this provision appears to be fair, the section does not include an obligation on the Minister to balance the rights and freedoms of data subjects with the rights and freedoms of others in circumstances in which he proposes to restrict the right of access to information under this section. I am concerned that the provisions under this section could be used to deny adopted persons' requests for information about where they come from on the basis that another party is involved. To oblige the Minister to balance rights would not be a great imposition. It is important that he should be obliged to do so.

This ties in with amendment No. 90 where the Minister also has the power to limit the rights of data subjects in respect of personal data kept for or obtained in the course of the carrying out of social work by a public body. On the face of it, this appears to be vaguely acceptable. However, if one scratches a little deeper, it becomes obvious that the restriction of rights could and, given the history of the State, probably would be used to refuse information to adopted children about their natural parents. If this is not the Minister's intention, I ask him to review these provisions and improve the wording. As matters stand, I propose to press the amendment.

Amendments Nos. 92 and 94 limit the Minister's right to invent a new public interest objective with a view to restricting rights. The key word in this context is "indicative". The 14 objectives listed are only some of the public interest objectives the Minister may use as a basis for restricting rights. A Minister can, at any time, add to these objectives without consulting elected representatives. As matters stand, restrictions of rights could be justified on any basis. Data centres, for example, have been justified on the basis that they are crucial and in the public interest. Given that a caveat could be applied in respect of anything, it is necessary to introduce some checks and balances. For this reason, we propose to restrict the public interest objectives by providing that a Minister who wants to designate an objective that is not already listed in the Bill as one that is of general public interest will be required to submit the proposal to the Oireachtas for approval. The amendment introduces a check on the Minister's powers in this regard.

Amendment No. 95 requires the Minister to consult the Data Protection Commission before making regulations and present to the Joint Committee on Justice and Equality his rationale should he ignore the advice of the commission. In that respect, the amendment is in line with previous amendments.