Alice-Mary Higgins (Independent) | Oireachtas source

I have an amendment within this grouping. I completely agree with the points made by Senator Doherty. It is, and remains, the nub. The Minister has described a process that he will put in place but there is also a process of the data protection impact assessment, DPIA, where the Minister needs to look to how he as data controller, not the commission, will deal with the documents. The Minister is the data controller of these documents, not the commission, the information within which belongs to the persons. The impact assessment would also need to look at the rationale of the impact on the process, or even the reporting, of the commission, which will have passed and not be relevant after that point on 28 February. The Minister mentioned a process but I believe that we need to clarify that this will involve a DPIA and that the consultation would feed into a data protection impact assessment.

I am trying not to be adversarial, and I do not seek to embarrass the Minister or anybody else, but the really crucial thing is the idea of fear being created and so on. It was created by the use of the language of "sealing", which was used the Government. I have multiple instances of that. Yes, the language said that it was not sealing under this Act, the caveat being that it is to seal under the 2004 Act and that we are trying to get around that. The language of "sealing" was used. I agree that the information is not being sealed under this Act. It is not sealed under the 2004 Act, even as amended. These files will become an archive. Right now they are just a set of documents, a set of relevant records and a database. All of those documents are not under seal. As Senator Doherty has said, it is not an exemption. It is telling that the language was used again in terms of the strong exemption. It is not, as was quoted, a prohibition. It is a restriction, subject to very tight caveats. The tightness is on it. If it was a blanket provision or a blanket measure, then section 39 would be illegal and would be struck down as being incompatible with our laws. The case law referred to by Senator Seery Kearney has shown increasingly that one cannot have a blanket provision or measure. That is not allowable or acceptable. If section 39 was to operate in any sense as a seal, a prohibition or an exemption, it would not be eligible law. If it is to serve as a balancing act, as described, then it needs to be subject to appropriate balances and checks. I put it to the Minister that the circumstances will have changed significantly because, as Senator Doherty pointed out, there will no longer be a commission in play on this issue. That commission will be concluded. I acknowledge the Minister has engaged positively with that debate in the last session between Senators McDowell and me and others on how we might appropriately reflect the diverse wishes of those who engage with the confidential committee. Given the amendments in this section the Minister has put in place in respect of redaction, there will have been an action that asserts those rights of persons. They will have been able to redact themselves from those documents. Again, the balance will certainly shift, in that context, when the commission has finished its work and when persons who have a particular wish to be confidential will have had themselves redacted from the documents. I put it to the Minister that it will be extraordinarily difficult to say that by giving people pieces of personal information about themselves, their family, their early life, their health or their name when they were born, it would somehow damage the operation of a future commission. That would be an extremely difficult thing to prove. Nobody wants us proving this in court. That is the key.

The Minister has said that he recognises the Minister as the data controller and is wrestling with this Attorney General aspect. It is the Minister who is the data controller, not the Attorney General. The Attorney General can give advice. That advice can be on the constitutionality or the advice may state that this may be challenged. Constitutionality is one issue that does not arise here. If the advice is that the legislation may be challenged, that is a different piece. The Minister needs to look into this robustly. I believe that the Minister will end up in a different situation in terms of that original advice but I wish the Minister had taken the step now. Senator Boylan's amendment No. 11 is better than my amendments, in that it is really clear. It was a chance for the Minister to make a decision on what he wanted to apply, much as in 2018 when the then Government chose to amend the 2004 Act. The Minister was completely free to do so. If section 39 deals with the administration of requests and Article 15 rights, there is nothing to stop the Minister from choosing to not apply section 39 for this specific commission. That could have been done legislatively and it could still be done if the Minister accepts amendment No. 11. Instead, the Minister will end up doing it with a slightly more difficult process. I would like the Minister to be a little bit stronger and clearer around the fact that he will not be giving blanket provision and blanket replies to people who make data subject access requests. That is a real concern.

My amendment is about changing the date and delaying the date of the report, which I do not want to do and I will not press the amendment. I proposed the amendment because I am concerned that the sixth interim report has still not been published. We are going towards a date for the publication of the final report, and we have seen the seventh interim report, but the sixth interim report has not been published. I am concerned about what is in that report and why it has not been published. I do not want to see that kind of delay. I believe it was concluded nearly one year ago in January and has not yet been published. We do not want to see that delay in the commission's report. I proposed my amendment to give space for the interim report to be published and then the final report. I will not press the amendment but that is the concern.