Patrick Costello (Dublin South Central, Green Party) | Oireachtas source

I will start with Ms Sippel's question about what is next, which jumps off into a lot of places. One of the recommendations we made was that there should be a review of the Data Protection Commission's policies, procedures and processes. It is of fundamental importance that this is an independent review. I note the DPC commissioned a review recently but it is important that it is done by an utterly independent person, not one chosen by the Government or the DPC. That must be underlined. If the problem is that the policy, procedures, rules and decision-making processes are unclear or weak, and that is not the result of any particular culture in the organisation but is the result of our legislation, the committee and the Oireachtas have a responsibility to improve the legislation. An independent review is very important and it ties in with those other points.

As for what is next and having two more commissioners, it is fundamentally important that we have at least one commissioner, if not more, who has experience in an investigatory, arbitration or judicial role. The DPC is a quasi-judicial body. We have a large number of bodies in Ireland with varying strengths and weaknesses within them. However, someone who can bring an understanding of investigations and trials in a sense, and the fair procedures that go with them, is absolutely essential.

Ms Daly asked whether the legislation was in line with EU law. I question whether it is in line with Irish law. Our courts made a recent decision, the Zalewski decision, which talked about what fair procedures are in terms of quasi-judicial decision-making bodies, and I do not think the DPC, like many other bodies, lines up with that. We have seen huge reforms of the Workplace Relations Commission where evidence is now sworn, there is cross-examination and proceedings are held in public. None of that happens with a complaint to the DPC. The Zalewski decision has serious consequences for that approach. Even if we park all the other problems, the Zalewski decision alone would argue for a clarification and strengthening of the procedures. Emergency legislation was rushed through the Oireachtas regarding the Workplace Relations Commission. Following on from the Zalewski decision, we need to look at that in the context of the Data Protection Commissioner as well. It is scary to think that we will need it for the Residential Tenancies Board and a dozen other bodies but I am going off on a tangent now.

I will circle back to the point about the three commissioners. There should be no hierarchy. The three commissioners should work together to make a decision. That may slow things down but when dealing with fundamental rights, efficiency is not the yardstick we should be using to decide if the processes or procedures are right. Three people making a decision, as is the case in a divisional court or the Supreme Court, will make for argument and stronger and less arbitrary decisions. That coupled with the clarification of the procedures, whether in law or policy, is essential. The next step to clarifying those procedures will be the independent review. I am conscious that a judicial review under the terms of the Zalewski decision may kick that door open whether we like it or not.