Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

We are debating a series of amendments. We need to go back to what happened on Committee Stage when we made the novel decision that instead of having a situation whereby regulations could be retrospectively disapproved of, we put a provision into the legislation whereby statutory instruments would have to be prospectively approved. It is a novel approach. It was a worthwhile approach for the Oireachtas to take. We need to remember that when a Minister issues a statutory instrument, he is making law. The Constitution says the sole and exclusive power for making laws rests in the Oireachtas. Under our system, we recognise that secondary legislation is permitted for convenience sake so that statutory instruments can be issued and signed by Government Ministers. They, however, become law. To have supervision and in order that there is Oireachtas involvement, in general each statutory provision introduced includes a provision that a resolution of the Houses of the Oireachtas can revoke such a statutory instrument if that resolution is passed within 21 days.

I note what the Minister is doing in amendment No. 2. He is simply trying to tidy up what was agreed on Committee Stage. We will agree to that amendment. We then go forward to amendment No. 17 which is in a similar format. It is another tidying-up exercise and I am supportive of it. Amendment No. 19 is much in the same way as the previous ones I discussed.

With regard to amendment No. 20, I note the intention of Deputies Clare Daly and Wallace. They say that when regulations will be issued in respect of a processing carried out in the public interest or in the exercise of official authority, it should be mandatory and the Minister should be required to issue regulations if there is going to be processing of personal data which is necessary for the performance of a task carried out in the public interest by a controller or which is necessary in the exercise of official authority vested in a controller. At present there is a discretionary power given to the Minister whereby he may issue regulations in respect of that matter.

I am conscious this is the final Stage on which amendments can be tabled. We need to look to see how it will read if Deputy Clare Daly's and Deputy Wallace's amendment is passed. It will state that these personal data performances shall be specified in regulations made by the Minister provided the Minister has consulted such other Minister of the Government as he or she considers appropriate. My concern about the way it would end up after that is it may mean a Minister would not have to issue regulations if it was the case he or she had not consulted such other Ministers of the Government as he or she considers appropriate. It may be the case he would not have to issue regulations if he or she had not consulted and sought the advice of the data protection commission. It may sound like a lawyer's point but when it comes to interpreting legislation, unfortunately, it is the case that in the main instance lawyers are the first people to interpret it. If it is drafted with the amendment, it would mean the Minister could get around issuing any regulations if he decided not to consult a Minister of the Government in advance or if he decided not to consult the commission. It is an unintended consequence and because of that I will not support that amendment.

That brings us on to amendment No. 62. I do not think this amendment is necessary. In fairness to Deputies Clare Daly and Wallace, while they came up with the novel proposal of having prospective approval, it is contained within the Act, so we do not need to repeat it on numerous occasions, and amendment No. 62 is therefore not necessary.

Amendment No. 64 is a similar tidying-up exercise by the Minister and I will support it. Amendment No. 79 is unnecessary. I will have a look at it in more detail before it comes up for a vote. Amendment No. 81 by the Minister is appropriate. It is the same as two previous amendments. I make the same point in respect of amendment No. 81 it is not necessary because it is clear in the legislation that certain regulations will require prospective approval by the Oireachtas.

In respect of Deputy Ó Laoghaire's amendment No. 82, while I note the intention and the objective, I tend to agree with the Minister that those matters are for the Data Protection Commissioner and the Office of the Data Protection Commissioner. It is not necessary for such amending to be included in the Bill.

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