Alice-Mary Higgins (Independent) | Oireachtas source

We can continue to work on amendment 15a. I appreciate that the Minister is interested in considering it. I do not think anybody in this House would disagree about the circumstances the Minister has outlined where it would be appropriate. The concern is that as it stands subsection (1)(a) does not cover only urgent situations. It covers any situation or law that is brought in. I am more concerned about it now because the Minister said it may not require legislation brought through the House but may be another legislative measure. Would that be a ministerial order? We are using the word lawful but the GDPR is law. We are introducing a new hierarchy whereby the GDPR would be subservient to any other law that might be brought in in respect of data processing. The reference to "any other future or current" raises serious concern about how wide this is. I appreciate that, as the Minister said, there are circumstances where urgency is needed and my amendment sought to deal with that by ensuring it is proportional. For example, where the Minister described a need to respond in urgent situations such as flooding and crop shortages, any test of proportionality would find that the processing of data was appropriate.

The proportionality test is not designed to tie the hands of Government. As I understand it, section 34 is wider than some of the sections we have debated because it does not even require ministerial responsibility. Subsection (1) refers to "the performance of a function of a controller conferred by or under an enactment or by the Constitution". That is very wide. We will not necessarily know what decisions may be made in interpreting the performance of their functions. Certain functions of controllers predate the legislation before us today. We should endeavour to ensure that the functions of any controller or anybody charged with data protection are brought into line with these new higher standards we put forward rather than saying that these standards may not apply where an existing way of functioning existed. It does need revision. We are happy to work with the Minister on the proportionality question. I will not press the amendment now because there is much ground to cover today. If there are exceptional circumstances let us legislate for those and not for the blanket provision.

I may return to this point on Report Stage, even the very limited safeguard of "suitable and specific measures" which I had concerns about in a previous section is not included here. I do not see where the safeguards are in the absence of a proportionality test. Nonetheless, I am happy not to press the amendment now and to work with the Minister and his Department.