Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I move amendment No. 74:

In page 45, line 34, to delete "Subject" and substitute the following:"Having regard to the balance of the rights and freedoms of data subjects and the rights and freedoms of others, and subject".

Section 59 proposes that the Minister should have wide discretion in limiting the rights of persons given to them by Articles 12 to 22, inclusive, in respect of certain subjects united under the vague banner of "general public interest". The section also proposes to give the Minister wide discretion to limit the rights and freedoms of persons if he or she thinks it is necessary to do so for the protection of a data subject or where he or she thinks the exercise of a right is likely to cause serious harm to the physical or mental health of a data subject. That seems to be fair enough, but there is no provision in the section to oblige the Minister to balance the rights and freedoms of data subjects and others in circumstances where he or she is proposing to restrict a right, for example, access to information. It cannot be the case that the Minister is the final arbiter in deciding whose rights trump whose without having to perform a balancing action. That is where we are coming from in amendment No. 74. It would oblige the Minister to have regard to the balance of rights and would not be a great imposition. It is important that the Minister should have to do this.

Amendment No. 74 ties in with amendment No. 75. Under section 59, the Minister will have the power to limit data subjects' rights in the case of data obtained and kept in the course of the carrying out of social work by a public body, a voluntary organisation or another body. On the face of it, this also seems to be vaguely okay, but if we scratch a little deeper, it becomes obvious that this restriction of rights probably will be used, for example, to refuse information to adopted children on their natural parents. We have a history of this happening in this country. Given that one of the rights listed between Articles 12 and 22, inclusive, is a right to access information a data controller holds on a person, it seems obvious that this provision could be used to limit the right to access information of adopted persons in a broad and non-transparent way. For example, there could be a refusal to grant a person information on the grounds that it might damage his or her mental health. That is critically important.

Amendment No. 77 seeks to delete ensuring the effective operation of the immigration system as one of the general public interest grounds on which the rights of persons can be suspended. The reason we have tabled this amendment is to put it on the Minister's radar that we will be keeping an eye out for regulations made under the section that will seek to restrict the right of persons to access information or to have corrected erroneous information held on them by bodies such as the INIS.

There is an enormous controversy in the United Kingdom about a similar provision in its Data Protection Bill and a legal case against it is being prepared. In the United Kingdom it is proposed to restrict the rights of persons under Articles 14 to 16, inclusive, among others. Those taking the case point out that the provision is discriminatory and will mean that those involve in immigration disputes will find it impossible to obtain the data immigration authorities have used against them, thus making it impossible to build a case or lodge an appeal against a decision made against them. The suspension of these rights will also mean that it will be impossible for immigrants to correct or challenge erroneous data held on file about them. It will also prevent them from finding out how their data were obtained and shared, thus allowing unlawful data to be shared, go unchallenged and remain a secret.

We do not yet know which of the rights under Articles 12 to 22, inclusive, the Minister will seek to restrict under this section in the case of immigrants. It will be laid out in regulations down the line. As a Parliament, we will be asked to approve those regulations, which is fair enough. We are merely flagging this serious issue. We want to mark it here and now, particularly as it is the subject of litigation across the water.

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