Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I know the point the Senator is making but there is a difficulty, and that difficulty would preclude me from accepting the amendments because circumstances could arise which would seriously frustrate and even jeopardise an investigation being carried out by the commission. If these amendments were accepted and inserted in the text, my concern would be that they would render an investigation open to legal challenge on the basis of due process.

Where a draft report has been prepared on foot of an investigation, procedural justice requires that the contents of such investigation would be shown to the controller or the processor concerned for any representation they wish to make or otherwise. In this regard, the commission will be required to have regard to any such representations, but it does not necessarily require any amendments to the report.

Senators will be aware that in such circumstances, a complainant does not have any role during this investigative stage of the process so if there was to be consultation with the data subject it could well provide a basis for a later legal challenge to the conclusions reached by the commission or a legal challenge to any sanction that may be decided by the commission that might be appropriate for imposing on the controller or processor concerned. The amendment, in effect, would be contrary to due process and to my mind would run the risk of inviting legal challenge, which would have the effect of frustrating or impeding any investigation. I know that is not the point behind the amendment but I believe that would be a logical consequence, which would turn on its head the point Senator Higgins wishes to make.