Marian Harkin (Sligo-Leitrim, Independent) | Oireachtas source

I have been waving consistently. I will just speak for a few minutes before the Minister responds. I thank the Acting Chairman. I appreciate getting to make a second contribution. I will refer to something to which many Deputies have referred - the GDPR, with which I have some familiarity. As citizens of Ireland and of Europe, we enjoy certain rights under GDPR. Colleagues have referred to these. We enjoy the right of access to our personal information, the right to rectify any mistakes and the right to erase certain information. We also enjoy the right to make decisions on the processing of any processing of those data. The Minister tells us that he is protecting this information in what he is proposing in this legislation. The law on the sealing of archives comes from the 2004 Act. This is where the 30-year seal was activated. Surely, GDPR and the EU Charter of Fundamental Rights, in favour of which citizens in this country voted as part of the Lisbon treaty, are the overarching and overriding legislation in this regard. They have primacy. We often say these are EU legislation but they are now Irish legislation because we have transposed them. The difference is that, if necessary, the European Commission can ensure that we enforce that legislation.

Once again, the Minister said that he is protecting this information and that the Bill needs to be passed by 30 October or some information could be destroyed. It has been made very clear that we do not know precisely what information the Minister is talking about or what might happen to it. Something bad might happen to some of the information. Does GDPR not already protect that information? The provisions of the 2004 Act have been superseded by GDPR.

Many people have referred to Dr. Maeve O'Rourke, whose excellent article I have read. She has included in this article a link to a piece by Simon McGarr in which he talks about a policy document from the European Data Protection Board in June of this year. This document sets out the limits of permissible national legislation restricting GDPR rights. I will quote one or two excerpts from the document. The Minister is probably familiar with it but it is important to quote one or two excerpts because this is an overarching body. One of the points it makes is that:

Any restriction must respect the essence of the right that is being restricted. Restrictions which are general, extensive or intrusive to the extent that they void a fundamental right of its basic content cannot be justified. If the essence of the right is compromised the restriction must be considered unlawful

That is surely relevant to what we are talking about. The second point I will take from the policy document is relevant to the 2004 Act and the possible destruction of information. It states, "In line with the GDPR and the case law of the Court of Justice of the European Union and of the European Court of Human Rights, it is indeed essential that legislative measures, which seek to restrict the scope of data subject rights, are foreseeable to persons subject to them, including with regard to their duration in time."

Any restriction, therefore, that is applied retroactively or not subject to defined conditions does not meet that foreseeable criterion. In that context, I point out to the Minister that all those people who testified and gave evidence could never have foreseen that this was going to happen. We must understand that protections already exist. I am not pretending I fully understand this, although I have listened and tried. We did not have time for pre-legislative scrutiny or to go through this Bill forensically and because of that - I will only speak for myself - there is a certain amount of shooting in the dark. Some matters, however, are very clearly explained in the statement from the European Data Protection Board. It makes it clear that the legislation we must look at in this context is the GDPR and that the 2004 legislation is restricted and superseded by the GDPR. I would like to hear the comments of the Minister on this issue.

See this speech in context