Dr. Fred Logue:

Everyone would welcome that. On a more serious note, it is obvious that a politician can make a promise that is against the law. We are talking today about a draft Bill, which in our view is against the law. Destroying the records or putting them beyond reach for a very long time has more or less the same effect on the people who are alive today. I believe both courses of action would be against the law. The structure of the GDPR, and even that of the Freedom of Information Act, allows for rights to be balanced against each other. If there is a public interest reason for restricting access to information, there is sufficient architecture in the GDPR to allow that to happen. The Legislature has to do it through very specific legislation that meets the standard of the GDPR. It cannot just pass a law stating that people cannot have access and that is the end of it.

In response to Senator Gavan, I say it might strike a balance, but the balance is zero for the survivors and 100% for the State. Technically that is a balance, but GDPR requires that where a balance is to be struck, any restriction on rights must be strictly necessary to meet a public interest objective. There must be evidence to show that that objective will be met. One cannot just say, "We have struck the balance and that is the balance that will be struck." The law sets constraints on that.

I believe that the Bill should not be passed and that we should rely on the Freedom of Information Act, the National Archives Act and GDPR. However, if the Legislature believes that particular interests need to be protected in the public interest, then much more work needs to be done in crafting restrictions on rights that meet the standard of European human rights law. Article 23 of the GDPR sets out how to go about that.