Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 16:

In page 25, between lines 16 and 17, to insert the following:"(7) If the Minister intends to set out regulations under this section which are not compliant with the advice of the Commission, he or she must lay a rationale for his or her proposed regulation before the Oireachtas Committee on Justice and Equality and any other relevant committee.".

These amendments all relate to the same core issue. The two points I highlighted on Committee Stage were that too free a hand was given to the Minister in how to set out regulations, limit data subjects' rights and choose to enforce or not enforce the legislation. There are many places in the Bill where the same formula occurs - that the Minister will make a decision, having consulted with whichever other Ministers he or she thinks appropriate and with the data protection commission. In all those sections, which these amendments seek to address, there is no guarantee that the Minister will, having consulted with the commissioner, in any way abide by, or take on board, the advice offered. The Minister can proceed to make regulations, take action, exercise restrictions and so forth even when that may be in direct contravention of the considered advice of the data protection commission, which we put in place to ensure that Ireland is in full compliance with the GDPR.

One of my amendments is a caveat in respect of section 33 regarding special and specified measures that relate to sensitive areas of personal data. If the Minister chooses not to take the advice of the commission in respect of how that sensitive data should be processed and what the special safeguards should be, a rationale should be provided. My amendments seek to ensure that the Minister does not have a free hand but that where he or she takes a decision which contravenes the advice of the data protection commission, he or she should provide a written rationale for that decision and present it to the Joint Committee on Justice and Equality and any other committee that may be appropriate. If, for example, a case relates to the area of health, it would also be relevant to the Joint Committee on Health. This is in order to provide a useful and appropriate level of transparency to ensure that the Legislature can be confident that the decisions made by the Minister can be justified and will not lead us, as a State, into inadvertent breach or violation of the GDPR, and, more importantly and in immediate terms, that they will not lead to inappropriate protections or violations of people's data rights.

Having raised this issue on Committee Stage, however, and having tabled these amendments, I recognise that the phrasing in amendments Nos. 32 and 35 tabled by Sinn Féin is more nuanced than mine. Acknowledging that Fianna Fáil, Sinn Féin and many Independent and Labour Senators are concerned about this issue because we do not want the Ministers to have a free hand but transparency in how decisions are made, I am happy to withdraw my amendments and, instead, lend my support to the complementary amendments tabled by Sinn Féin. I note, however, that there are one or two places where there is not a corresponding Sinn Féin amendment. I will withdraw mine in the hope that those areas might be addressed when the Bill goes to the Dáil. However, this gives the Minister an opportunity to engage with us on the issue.