Clare Daly (Dublin Fingal, Independent) | Oireachtas source

Amendments Nos. 20 and 79 are not quite the same and I will deal with them separately.

Amendment No. 2 is a redraft by the Government of our successful amendments at committee providing that regulations made under sections 50, 57 and 72 shall be the subject of positive resolution prior to being made. That is fine. We agree with that.

Amendments Nos. 17, 19, 64 and 84 are slight redrafts of our successful amendment providing that a Minister has to seek the advice of the Data Protection Commissioner before drafting amendments under the riskier sections of the Bill, namely, sections 35, 54, 59 and 72. We have a minor qualm with the proposed phrase "significant concern" in the Government's proposal, but as it will be up to the commission to decide on what is significant, we are reasonably happy to accept the Government's proposal on the basis that the commission will not feel that its hands are tied by the word "significant". The Minister might comment on that.

Amendment No. 62 is merely a restatement within the relevant section of the provision earlier in the Bill that regulations under this section require positive resolution. We succeeded at committee with identical amendments to sections 59 and 72, but for some reason the amendment to this section, section 50, did not succeed. I am not sure why. In any case, the Government seemed to take the view that a restatement of this requirement for a positive resolution in each of the relevant sections is not necessary because the Minister proposes to take some of them out. The only point we would make is that the Health and Social Care Professionals (Amendment) Act, which contains similar positive resolution procedure for regulations made under certain sections, restates the requirement in the relevant sections. We want an assurance from the Minister that in not restating the requirement in the text of each section, we are not undermining in any way the requirement for positive resolutions under this section.

Amendment No. 20, as I stated, is a different matter entirely. It is slightly awkward that it is in this group. The amendment is about trying to limit the circumstances in which the exemptions from normal data rules that the Government wants to provide to public and private bodies under section 37 can apply. Those are the circumstances where processing is necessary for the performance of a task carried out in the public interest by a controller or where it is necessary in the exercise of official authority vested in a controller as per the GDPR but the Government wants to give that power to anyone who is administering any sort of non-statutory scheme. That is something that we will talk about in more detail in section 37. Article 6.1, paragraph (e), of the GDPR allows for exemptions from having to abide by the standard rules on the basis of the public interest on official authority. The GDPR also states that member states may maintain or introduce more specific provisions to adapt the application of the rules of this regulation with regard to processing for compliance with point (e) of paragraph 1 by determining more precisely specific requirements for the processing and other measures to ensure lawful and fair processing. It is clear the GDPR envisages that in circumstances where paragraph (e) is being relied on, member states will adapt the rules of the GDPR via specific and precise requirements that cover processing where the exemption is being relied on. Despite this, at present there is a broad and vague exemption in this section for the aforementioned purposes with no guarantee that any Minister will pass regulations specifying any rules or limitations on the bodies this section gives an exemption to. One might ask why they would not do that. Maybe it would suit a Minister in certain circumstances.

On Committee Stage, the Minister stated that our tabling of a similar amendment may be based on a misunderstanding since the lawful basis for processing exists elsewhere and it does not need to be detailed in regulations. The Minister's following sentence at committee, However, was that the regulations, for reasons of transparency and legal certainty, specify processing that is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. Transparency and legal certainty is exactly what we are trying to achieve here. Our amendment is not based on misunderstanding. It is based on exactly what the Minister said is the purpose of the regulations under this section. There should be an obligation on the Minister to set out the criteria in the public interest rather than it being an optional extra. If the Government wants to give broad powers to the State and non-State bodies not to have to abide by data protection rules that everybody else must abide by, the Minister should set out exactly the limits of that power. It should not be left to section 37. As an absolute minimum, therefore, there should be, as we propose, a requirement for the Minister to set out more precisely the ways and means in which personal data can be processed in the public interest on official authority.

Amendment No. 79 is different again. It relates to section 59. Section 59(7) lists some indicative important objectives of the general public interest for which the basic rights of people under Articles 12 to 22, inclusive, in regard to their data can be restricted. Indicative is the problem here. Fourteen objectives are merely some of the general public interest objectives for which the Minister might decide to restrict people's rights. Any Minister at any time could do that without consulting elected representatives.

We all know that might not be the general public interest. Under this section, there is nothing to stop a Minister restricting people's rights without coming to the House. We propose to restrict this in amendment No. 79. If our amendment passes, a Minister who wants to designate an objective that is not listed in the Bill as an important objective of public interest has to come before the Houses with his or her proposal for a vote to be taken on it. It is a small thing and we think it should be accepted.

See this speech in context