Charles Flanagan (Laois, Fine Gael) | Oireachtas source

This is a large group of Opposition and Government amendments which deal with sections 38, 39, 47, 57 and 58, all of which are linked with the operation of our democratic system of government. I am unable to accept amendments Nos. 25, 51, 68 and 71 which have been tabled by Deputies Clare Daly, Mick Wallace and Donnchadh Ó Laoghaire and which propose the deletion of sections 38(2), 47, 57 and 58, respectively, as I believe these sections contain appropriate and proportionate measures to facilitate the smooth operation of our democratic system and to allow elected representatives in the State to maintain contact with and serve the electorate. This is a fundamental duty in our membership of the House.As amendments Nos. 57 and 58, in the name of Deputy Donnchadh Ó Laoghaire, appear to be alternatives, I am also unable to accept either of them.

Turning to the amendments tabled by Deputy Thomas Byrne, while I am very favourably disposed towards their objective, the Office of the Attorney General has advised that they may not be GDPR-compliant and that, furthermore, they may be open to legal challenge, which is a concern. The key changes proposed by the Deputy are replacement of all references to "electoral activities" with "political activities"; insertion of a non-exhaustive definition of "political activities"; the introduction of an additional condition in relation to representations made on behalf of data subjects who, by reason of physical or mental incapacity, are unable to do so themselves; the introduction of a further, potentially limiting, condition for elected representatives in responding to requests and representations in section 39(4); and replacement of section 38(3) with looser security conditions in a new subsection (6).

On the first change proposed, section 6A(3)(c) of the Data Protection Act 1988 which is carried over in section 58 of the Bill restricts the right to object to processing carried out in the course of electoral activities. Recital 56 of the GDPR also refers to processing personal data in the course of electoral activities. The risk is that replacing the reference to "electoral activities" which is in the current law and the GDPR with a reference to "political activities" would result in uncertainty and might give rise to legal challenges based on an apparent non-compliance with the GDPR.

On the second change proposed, inclusion of a non-exhaustive definition of "political activities" would cut across Article 9.2(d) of the GDPR which is directly applicable and does not require transposition into national law. It permits, among other things, the processing of personal data, including special categories of personal data, during the course of its legitimate activities by a political party where the processing relates to members, former members or those who have regular contact with it. This covers processing connected with membership, fundraising and all other activities in which we engage from time to time.

The introduction of a reference to protection of “the vital interests of the data subject” in amendment No. 35 is problematic because that term appears in Article 6.1(d) of the general data protection regulation, GDPR, and it has been given a very narrow and restrictive interpretation. If adopted in this context, it would impose a heavier burden on the person making a request or representation on behalf of a data subject without the capacity to make a request or representation on their own behalf.

Amendment No. 40 would appear to introduce an unnecessary consistency test whereas the current wording provides a legal basis for a response enabling an elected representative to respond to a request or representation. Amendment No. 40 would impose a condition that any such response must be "in such manner as is consistent with his or her role and functions as an elected representative". It is important to note that responsibility for compliance with this test would rest with the person disclosing the data to the elected representative, not with the elected representative.

The proposal in amendment No. 41 to replace the specified safeguard in section 38(2) with a general reference to “reasonable and proportionate measures” would not meet the “suitable and specific measures” threshold in section 35. The current text of section 38(2) incorporates the safeguard set out in section 35(1)(b) of the Bill.

I draw Members' attention to Government amendment No. 148, which contains amendments to section 13A of the Electoral Act 1992 in a new section 173. It inserts a new subsection (3C), which provides that the electoral register may be used by a specified person referred to in section 38 for the purpose of communicating with data subjects under that section, or by an elected representative referred to in section 39 for the purposes of that section.

I do not wish to introduce any element of confusion because it is very important that we are clear here. I am confident that the combined impact of sections 38, 39 and 173, which is the new section that we will come to later on, will preserve the important role of elected public representatives in performing their representative functions and day-to-day tasks in serving the electorate. I have been in this House a long time by dint of my work as a public representative and through my constituency work, serving my electorate. I have examined the situation closely. The objective of Deputy Thomas Byrne is clear in his amendment. I am in agreement with him on this but I do not want to do anything that might result in uncertainty. I do not want to do anything that might ultimately end in a conflict or a difficulty as far as our obligations are concerned.

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