Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 38:

In page 25, between lines 2 and 3, to insert the following:

“(3) A requirement for confidentiality made under subsection (1)may apply for a period of up to 36 months.

(4) Following the expiry of a confidentiality period under subsection (3), a requirement for confidentiality under subsection (1)may berenewed where the Minister reasonably considers that disclosure of the measures would still be contrary to the interests of national security and public safety.”.

This again relates to the confidentiality requirements and seeks to limit the scope of the confidentiality requirement. Currently, there is no limit on the time period relating to the confidentiality requirement. I understand and accept the principle that there may be situations, for example, during an ongoing investigation that may involve multiple parties engaging on issues of national security that are at play, where this confidentiality requirement might be needed but it should not be open-ended. The fact that there is a risk to national security in January 2024 which requires a confidentiality requirement to be placed on a vendor does not necessarily mean that in 2027 the same requirements are appropriate or, indeed, that the same risk to national security would apply. Where the State is putting measures in place regarding vendors in situations where the interests of national security are potentially impacted, you would hope those measures are not all that would be done but rather that subsequent, consequent and related actions would be taken to address concerns relating to national security.The fines for a breach of this confidentiality are substantial. I am worried we could have a situation in which we have a black box, whereby a subsequent Minister may not even be aware of what measures and requirements have been put in place. There may be a situation whereby one is looking to confidentiality measures that are put in place and a lack of learning and knowledge by the State or, indeed, by Ministers or certainly by parliamentarians who legislate in this area as to exactly what orders have been made and what has happened with this legislation.

With regard to trying to seek that balance, I am not seeking to remove that power and issue of confidentiality, but I am concerned with anything that moves decisions and very significant legal requirements, with very significant penalties made by the State, out of the public eye and public scrutiny. There should be a balance, at some point when it is safe and national security is not an issue, whereby they may be in a position to move back into appropriate public scrutiny and the significant powers that have been granted under this legislation could be scrutinised, evaluated or considered with regard to how we go forward.

Amendment No. 38 seeks to say that the requirement for confidentiality would apply for a period of up to 36 months, that is, three years. I am not trying to scupper the impact. Three years should be a period of time in which the potential risks to national security may be examined and, one would hope, be addressed. I am not saying it would happen automatically. I am simply saying that, following the expiry of that period, there would be a new assessment. I am not saying it must end after 36 months but that, after three years, there would be a review and consideration as to whether it is still in the interests of national security to have this confidentiality constraint.

Having that three-year period would provide for the overlap whereby, for example, a subsequent Minister may be in a position to assess, under new information, the national security grounds on which orders have been made. That may be useful to a future Minister making those decisions. It is very reasonable that, every three years, one would consider a decision of that import again. It allows us to learn as a State and to see the patterns in threats to national security and the effectiveness or non-effectiveness of the tools we have been applying, because, otherwise, we just do not know what is happening.

We have seen extremely authoritarian governments coming through in a number of parts of the world. We know that a measure such as this is exactly the kind of thing that can lead to situations whereby it is not really known what is happening. Parties, that is, companies, in such a situation could be under orders - my colleagues talked about non-disclosure agreements - where they are not able to speak about what they are being required to do. We have had that concern with regard to national security measures, some of them in the United States, whereby companies were required to give access to their data in a way their users were not aware of.

This is a reasonable measure and a reasonable balance. I am not trying to curtail the urgent action. Three years should be enough and, after that, if it is not enough, the case should be made a second time.