Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 200:

In page 102, to delete lines 12 to 15.

This seeks the deletion of section 139ZC(9), which provides that, "Where an authorised officer has exercised his or her powers under this section in good faith, the Commission shall indemnify the authorised officer against all actions or claims howsoever arising in respect of the exercise of those powers."

Providing such a blanket indemnity to authorised officers based on a simple good faith criterion is a very weak legal basis and is a barrier to accountability for those who may face unjustified actions from authorised officers operating under the Act. This could preclude access to justice for persons who may be adversely affected by the potential actions of an authorised officer.

I remind the Minister that the legislation covers interpersonal communications and cloud storage. There is a very wide application of the Act and wide powers given under it.This is the balance we have to constantly seek. In many cases, we are seeking to have regulation strengthened, but we must ensure there is a balance. That is why the rights-based issue in the context of the general data protection regulation, GDPR, is important. It is so that we avoid leaving things to free market regulation and also avoid having inappropriate levels of power or pressure asserted by a state. I refer to the phrasing of the section, such as any "claims howsoever arising in respect of the exercise of those powers". I refer to undue force being implied, damage being done to equipment or materials, or, for example, persons choosing to take and seize a large amount of equipment. If a person abuses those powers, that is significant.

The good faith mechanism is a difficult one to prove. It is a high bar. That is why amendment No. 201, which is an alternative to amendment No. 200, makes provision should the Minister wish to keep the indemnity clause in this context. Again, I think the clause is too widely framed. It refers to any claims, howsoever arising. I say that in the context of the UK and the kind of indemnity provisions it has been giving to those who have acted completely improperly in respect of Northern Ireland. I refer to the spy cops legislation in the UK. There have been several examples of significant impunity for those who may be authorised officers in different contexts than in other states in the context of what they might do. We need to avoid anything that creates a culture of potentially undue care or a perception of impunity or immunity for those who are acting on behalf of the State.

Amendment No. 201 provides that, in the case that there is still a desire to insert the indemnity, the indemnity would only be provided to an authorised officer in respect of "a first or second action or claim arising in respect of that officers exercise of these powers" but that authorised officers who are subject to a third or further action or claim would not be indemnified to the same degree. This may apply to situations where an authorised officer becomes a hard enforcer, there is a pattern of multiple complaints against him or her or there are authorised officers against whom claims are made because of how they have carried out their duties or because there is a perception they are using, for example, unduly coercive methods or unduly exploiting the very substantial powers that are being given to them under the Bill. The concern basically relates to the number of claims that will be taken against an authorised officer before the State stops indemnifying him or her against actions. Again, this relates to trying to ensure we do not inadvertently create a provision within the Bill that contributes to a culture of irresponsibility for authorised officers rather than one of responsibility.