Alice-Mary Higgins (Independent) | Oireachtas source

I recognise that the exclusion of special categories of personal data as defined under Article 9 of the GDPR is a concession the Minister of State has made following our debate in the Seanad. I was very happy when he was able to accept the amendments in the Seanad and I, of course, had concerns when I saw they were being revised.

The removal of the phrase "and compliant with Article 9 of GDPR" is perhaps not necessary, although we need to be cognisant of it. There is a concern that the amendment proposes that "public service identity" has the same meaning as it has in section 262 of the Act of 2005 and shall not include a reference to special categories of personal data. While I understand this might be addressed again later, I would like to have it clarified. My concern is that what the Minister of State is inserting simply states that there will not be a reference to special categories of personal data within the Social Welfare Consolidation Act 2005. I have had extensive debates with the Minister, Deputy Regina Doherty, about what do or do not constitute special categories of personal data, specifically around the question of what does or does not constitute biometric data. The Minister and I are not in agreement at this point but I believe a time will come when that will be clarified by rulings in the European Court of Justice because it is an issue in regard to photographs in particular.

My concern is that the original changes to the legislation referred in a wider sense to the special categories of personal data whereas amendment No. 5 proposes that the section "shall not include a reference to special categories of personal data".I do not anticipate that the Minister will seek to include a reference to special categories of personal data but if special categories of personal data are there, for example, as determined by the European Court of Justice or others, I would want that additional security. The Minister of State might clarify whether, when he says references to areas of public service identity that constitute special categories of personal data shall not be included in this data sharing Bill, that will have a wider meaning than that they will not be referenced in social welfare legislation.

There is an important difference between special categories as defined under the GDPR, the interaction of which is yet to be determined, and special categories as referenced within our national legislation. The Minister of State might clarify this in regard to amendment No. 5. I do not have a material problem with amendments Nos. 3 and 4, apart from the fact that I would like to insert references to Article 9. I am happy to let them go.