Charles Flanagan (Laois, Fine Gael) | Oireachtas source

-----let me offer my respect to the Chair and, indeed, to the Members of the Upper House. In accordance with the Leas-Chathaoirleach's implied, if not expressed, suggestion, I will be brief.

Amendment No. 1 inserts a definition of "political party" in section 2 of the Bill, while amendments Nos. 25, 38 and 39 replace sections 43, 53 and 54 with updated text. These three sections contain references to "political party" and that is why they have been grouped with amendment No. 1.

Arising from our Committee Stage discussions and in particular, certain concerns that had been raised regarding the scope of section 43, I undertook to submit a revised text of section 43 and that is the purpose of amendment No. 25. In the meantime, there has been considerable media focus on this section in recent days and I want to take this opportunity to provide some further clarification on its purpose in the Bill.

Article 9.1 of the general data protection regulation, GDPR, generally prohibits the processing of special categories of personal data, including "personal data revealing political opinions". Paragraph 2 of Article 9 lifts the prohibition in paragraph 1 in respect of a broad range of situations listed in paragraph 2.

While Article 9.2 itself does not provide for the processing of personal data revealing political opinions, recital 56 of the GDPR – the purpose of recitals is to provide guidance to interpretation of the GDPR’s articles – introduces uncertainty in respect of the extent of the prohibition on processing of personal data revealing political opinions in Article 9 by stating "Where in the course of electoral activities, the operation of the democratic system in a Member State requires that political parties compile personal data on people's political opinions, the processing of such data may be permitted for reasons of public interest, provided that appropriate safeguards are established."

In short, while Article 9.2 does not do so, recital 56 refers to the processing of such personal data subject to appropriate safeguards. I should add that an identical recital is included in the 1995 EU Data Protection Directive under recital 36 and a provision almost identical to section 43 can be found in section 2B(b)(x) of the Data Protection Act 1988. The difference is that section 43 of this Bill will impose stronger safeguards on the processing. This section is in compliance with the GDPR.

The Government's main objective for including section 43 in the Bill has been, therefore, to continue to prevent misuse and to impose the appropriate section 33 safeguards on the processing of personal data revealing political opinions.

Section 43 imposes the following safeguards. It limits processing of personal data revealing political opinions to political parties; candidates for election to, or holders of, political office; and the Referendum Commission. It makes any such processing subject to "suitable and specific measures being taken to safeguard the fundamental rights and freedoms of data subjects". This refers to the toolbox of safeguards set out in section 33 of the Bill. We had an opportunity earlier of discussing this, both at Second Stage and at Committee Stage. In short, processing cannot take place unless such safeguards are in place.

The safeguards include a broad range of measures to protect the rights and freedoms of individuals. Section 33 permits the relevant Minister to make the application of specific safeguards mandatory for specific types of data processing, including the processing of data revealing political opinions.

The revised wording of section 43 also makes it clear that the electoral activities to which reference is made are electoral activities carried out in the State by a political party registered under section 25 of the Electoral Act 1992; a candidate for election to, or a holder of, office in the State; or the Referendum Commission.

There are no grounds for fearing that this State can in any circumstances become a hub for the carrying out of electoral activities in respect of elections taking place outside the jurisdiction or in other countries.

I will take this opportunity to point out that section 43 provides a legal basis for elected representatives, Members of this House and members of other institutions, whether members of political parties or not, to engage in data processing for electoral activities, including canvassing.This represents an important aspect of the manner in which we engage in our democratic system. It allows elected representatives and candidates for elective office to reflect the concerns, anxieties and priorities of the citizens of the State, that is, the electorate. Supervision and enforcement of data protection standards and rules, including section 43, will be a matter for the independent office of the data protection commission.

Government amendments Nos. 38 and 39 incorporate the revised wording in respect of the Referendum Commission into sections 53 and 54, respectively. As regards amendments Nos. 28 to 30, inclusive, I cannot accept amendment No. 26. I probably need to speak to these amendments now in anticipation of their being moved.