Patrick Costello (Dublin South Central, Green Party) | Oireachtas source

Given the time constraints, I will try to be as quick as I can. There is an issue with the procedures of the DPC and with how it does its business. The Oireachtas Committee on Justice has looked at this numerous times. We have produced a full report on it, with plenty of recommendations for the Minister to implement.

We frequently hear that there are no issues with the DPC and that other European countries are just jealous of our position and power. However, I do not think the High Court is jealous of the position of the DPC or of anything to do with our tech companies. The High Court, in the case of DPCv. Doolin, highlighted excessive delays and poor decision-making, as well as how the DPC had misinterpreted and misapplied the definitions of "data" and "data processing". Data and data processing are utterly fundamental to the DPC's role so if the High Court - and later the Court of Appeal - is picking these up and highlighting them as problematic, then there is a significant problem in the DPC. This amendment does not improve those things and I share the concerns voiced by other Deputies in relation to the proposed amendments.

One of the main concerns is whether this amendment passes constitutional muster. Is it going to end up being appealed to the courts, thus delaying the work of the DPC, which is already delayed? Is it going to snarl up the courts needlessly? There seems to be a real lack of willingness among our drafters to engage with the consequences of what the Chief Justice said in the Zalewski case. The Chief Justice said, and I have referred to this in the House many times, that justice administered in quasi-judicial bodies cannot fall below the standard of justice administered in the courts. Time and again we seem to be failing to implement that. I was on my hind legs in here discussing the Court Proceedings (Delays) Bill. Again, there seems to be a failure to provide the level of justice as administered in the courts under Article 34. There is a fundamental issue here and those who are drafting Government legislation need to wrap their heads around that decision and those very clear words of the Chief Justice.

Even before this amendment was introduced, I would have argued that the DPC is not really in line with Zalewski and with what is constitutionally required. Now we take this step and it would be remiss of me to let this amendment pass without raising these concerns. I ask the Minister of State to clarify whether the Attorney General has signed off on this. Has he been consulted? Has the Government gone to the Attorney General and asked whether this amendment passes constitutional muster? Does it meet the test set out in Zalewski by the Chief Justice? I do not think it does and legislation that is unconstitutional is just going to cause problems and delays as it gets appealed through the courts. That is my main question. The other main issue, which again may reflect the drafting, was also raised earlier but I will come back to it later.

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