Wednesday, 24 May 2023
Road Traffic and Roads Bill 2021: Report and Final Stages
To turn to more mundane matters, I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on it. Equally, each non-Government amendment on Report Stage must be seconded. Amendment No. 1 arises out of committee proceedings. Amendments Nos. 1 to 4, inclusive, and 6, are related and may be discussed together by agreement. Is that agreed? Agreed.
These amendments are to make small but important technical corrections to the legislation underpinning the motor insurance database. The Bill seeks to insert a new section 56A into the Road Traffic Act 1961, which will require people applying for motor insurance to provide certain information to the insurer. This is information the insurer would need to have later to provide it for the database. The text as it stands currently would require capturing the driver licence details of persons to whom paragraph (a) of the proposed new section applies. In this context, the paragraph covers the person who applies for motor insurance and any person to be named on the certificate of insurance while driving is to be covered. The applicant for or holder of an insurance policy, however, may not be a natural person or may be a natural person who is not a driver. The existing wording, therefore, could create unnecessary difficulties where the policyholder was either a body corporate or a natural person who did not have a driver licence, or a natural person who had a driver licence but who is not to be covered by the policy.
Our intention here is to capture driver licence details of those drivers covered by a policy. The drivers covered by such a policy are listed in particular 6 of the statutory certificate of insurance. Where the holder of a policy is also a driver whose driving is covered by the policy, this person will be named in particular 6. The proposed amendment, therefore, is intended to capture all persons whose driving is covered, including the policyholder where his or her driving is covered. It would ensure as well, though, that we would not seek the driver licence details of a policyholder when he or she is not one of those people whose driving will be covered under the policy.
Similarly, the Bill also seeks to amend section 78A of the Road Traffic Act 1961, which sets out the information to be provided to the database by vehicle insurers. In this instance, we are proposing to make an amendment to the same effect, by substituting a reference to "particular 6 of the certificate of insurance" for a reference to "paragraph (a)". The only difference here, as against the proposed amendment to section 56A, is that we refer to persons "named in particular 6", while in section 56A we refer to persons "to be named". This is because section 56A refers to the application process, in other words, to a point where a certificate has yet to be issued. In the case of section 78A, the certificate already exists.
Amendments Nos. 1 and 3 seek to remove the difficulties caused by the current wording, while ensuring that the original intention to capture driver licence details for all drivers named as being covered on an insurance policy is addressed.
Amendment No. 2 is a proposed technical correction. The name of the Motor Insurers Bureau of Ireland is wrongly referred to in the current text as the "Motor Insurance Bureau of Ireland".
Amendment No. 4 also proposes a small technical amendment. The provisions for capturing details of fleet insurance policies require certain data collected by the insurer or intermediary to be provided to the database and certain other details to be provided by the policyholder. The insurer or intermediary is to provide the address of the policyholder, but mention of the address is missing at this point in the text of the Bill. We are, therefore, seeking to rectify the omission in this regard.
Finally in this grouping, amendment No. 6 is a proposed technical amendment to section 11(a) of the Bill, which creates an offence where a person supplies false information in respect of certain provisions of the Road Traffic Act 1994. This is aimed primarily at addressing fraudulent applications for disabled parking permits. The Bill currently refers to persons providing "false or misleading information" in purported compliance with regulations providing for the matters in paragraphs (m), (s) or (t) of section 35(2) of the 1994 Act. Subsequent advice has indicated that the use of the singular "paragraph" rather than the plural "paragraphs" is necessary here to ensure the text means an offence would be committed if a person supplies "false or misleading information" under any one, two or three of the paragraphs in question and so we are proposing to make this change here.
As a point of information, central to getting insurance is a driver licence.Changes are being made to medical practice when it comes to fitness to drive. Heretofore, when people got to a certain age they got a medical certificate to say that they could continue driving for the next three years. When people then reached a greater age, they might only get a year or so. There are changes in the Bill due to European legislation. How will this affect people in Ireland? Some people in their 70s or 80s can drive much better than some people aged in their 50s. I understand that when people reach 70 years of age, they have to go for a medical test. Is the age limit being dropped? How does the Minister think this will be implemented? The European legislation means there will be changes Europe-wide. Does the Minister think the age limit will be changed? Will there have to be a medical test on an annual basis? Who will decide if a person is not fit to drive or get insurance? How will all of that pan out?
I wish to reassure the Senator that the ages for medical certificates for driving licences are set in regulations rather than the Bill. That will not change in the amendments or drafting of the Bill. As I said, we will continue to review and revise that issue based on the best advice from An Garda Síochána and the Road Safety Authority. Nothing in the Bill will change that or affect the rights of people to be able to get a licence.
This amendment seeks to remove the provision from the Bill that would permit An Garda Síochána to enter any place, including the curtilage of a dwelling, without a warrant to seize a vehicle it reasonably believes is likely to be driven or used dangerously. The curtilage of a property includes gardens, paths, driveway, yards, garages or sheds used in conjunction with a house.
My colleagues, Senators Boylan and Higgins, tabled a similar amendment on Committee Stage, which they acknowledged as being quite blunt. That amendment sought to delete the entire section which would have prevented An Garda Síochána from seizing vehicles which had been used dangerously, including scrambler bikes, from the curtilage of the property.
While we still have concerns about the Garda being able to enter and seize property from the curtilage of a property without a warrant, this amendment simply seeks to limit the circumstances where An Garda Síochána could seize a vehicle from the curtilage of a property without a warrant. If our amendment is accepted, it would mean that An Garda Síochána could not seize a vehicle if it only believed it likely to be driven or used dangerously in the future.
It is our assertion that to permit An Garda Síochána to seize property from the curtilage of a dwelling without a warrant is a significant invasion of privacy and open to abuse and misuse. This is especially true in circumstances where the Bill provides that this could occur in instances where a member of An Garda Síochána reasonably believes that private property is likely to be used dangerously at an undefined point in the future.
We need the Bill to provide greater protection for privacy and personal property. With the current wording we fear the Minister is unintentionally blurring the lines in respect of the powers of An Garda Síochána to enter somebody's home or personal land without justification. With a warrant or some other safety mechanism, reasonable grounds of some kind must be demonstrated. The existing words are based on a somewhat speculative assessment regarding the potential future use of a vehicle. We are concerned that this could be open to abuse and misuse.
The Bill does not refer to the Garda entering the curtilage of a dwelling for a clear, specific and measurable purpose, but rather gives it carte blancheto enter on the basis of a belief that a vehicle is likely to be used dangerously at an undefined point in the future. The defined reason for entry to the curtilage of a property sets a very low bar and risks undermining the long-established practice whereby a Garda must have a warrant or other very good reason for entry.
This section of the Bill needs to be improved in order to limit the circumstances wherein the curtilage of a property may be entered without warrant. Currently, we feel the Bill's phrasing in this section is too loose. We ask the Minister to accept the amendment and make the protections for privacy and personal property a little bit more robust.
I understand the Senator's concern, but I do not agree with the proposal. Section 5(p) of the Bill inserts a new section, section 109A, into the Road Traffic Act 1961 to provide for new Garda powers to deal with dangerous driving. I appreciate the Senators are concerned about the reference to a vehicle which is not only being driven or used but also likely to be driven or used in any place in which it is or is likely to be dangerous. At first reading, this may look like it is an invitation to act on suspicion that something might happen rather than evidence that something has happened. However, if the Senators look at section 53 of the 1961 Act, which is the section that makes dangerous driving an offence, they will note that it makes it an offence to drive in a manner which is or is likely to be dangerous to the public.
The wording in the Bill, therefore, is nothing new and reflects the original wording relating to dangerous driving which has been on the Statute Book for more than 60 years. The same language is used in section 98 of the 1961 Act to make it an offence to commit an act which causes or is likely to cause traffic to be obstructed. This use of language has not created problems in that time. In fact, if we did not use it in the new section 109A, there would be a risk to public safety.
We are not talking in section 109A about a licence to arrest people on suspicion that they might commit a crime in the future; rather, we are allowing for intervention by a garda when there is an imminent danger to public safety so that the garda does not have to wait until the public is actually endangered. As I said, the language referring to what is likely to happen is well tried and tested in law and is already present in the offence of dangerous driving. It should be retained.
With respect, they are quite different things. It is one thing to say that a person is driving in a manner which is dangerous or likely to be dangerous because that is an action which is taking place. We are talking about a vehicle. Legislation is a reasonable place to have that point because if people are driving in a manner which may prove to be dangerous, such as driving all over the road or, if persons were there, would be likely to be dangerous, that is an action that is already under way.
The Minister has compared that to a situation where there is a vehicle on a premises within the curtilage which could be used at an undefined future point, but this does not involve an action that is taking place as in the legislation which the Minister indicated is comparable. It is not comparable because the legislation refers to action that is taking place which has the potential to be dangerous, versus speculation as to what a vehicle may be used for.
Any number of items in every single person's home in Ireland and on the curtilage of every person's home in Ireland could conceivably be used in a manner which might be dangerous in the future, if we start using that as a bar in terms of legislation.The Minister mentioned the language. "Imminent danger" is not the language used in the Bill. It does not refer to "imminent". It is an undefined point. There is not a time limit in respect of that. There could be any future point. What worries me is that effectively, this becomes a premise for bypassing the normal procedures with regard to, as I said, not solely a warrant. We are not simply restricting it to the situation of a warrant. However, where there is a warrant, and where there is a reason which is justifiable, rather than something which is entirely subjective and speculative, the worry is that this becomes a mechanism whereby this is the excuse for entering the curtilage of private property, and it becomes a very easy premise for doing that.
If there is a particular category of vehicle which is considered to be dangerous, the Minister should include in the Bill that the premise of certain categories of vehicle is a concern. The Minister has mentioned in the past particular categories of vehicle. That is fine as then one has a law against that category of vehicle. However, having a situation whereby any garda can basically enter any property where there is a vehicle simply because they feel it may be used in the future, without having a real reason and proprietive rationale, and without a consequence if that is found to be unsubstantiated, is not the same as the comparable legislation which the Minister is describing. That comparable legislation rightly ensures that where there are actions that have the potential for consequence of danger, then one can stop and interfere in those actions which are taking place. That is speaking in the moment, and not in the speculative future.
With respect, I do not believe the comparison the Minister has put forward is equivalent, and the concern still stands around this being a tool which could potentially be open to abuse by gardaí or others. That will not contribute to the purposes we all have, which is ensuring that we actually have proper and credible road traffic safety laws.
I accept and understand the argument Senator Higgins is making, and there is a certain validity to it. However, I also have to listen to other Senators and Deputies state this is long-awaited legislation and describe the real threat to people, particularly in parks, streets or urban areas, where people very threatened and very much endangered by the use of these scramblers. The Bill includes a provision for a garda to be able to stop a person, take down his or her address and other details and, if necessary, require that person to dismount, or to seize. However, we all know, and it is what I am hearing from other Senators and Deputies, that it may not be an applicable power in this case, because by definition, the nature of these scramblers is that they are very fast and often driven in a very threatening manner. It would be very difficult, if not impossible, for a garda to be able to protect the public in that way. It is only applicable in light of those conditions where a garda has the ability to seize a vehicle outside a premises. I understand the concerns around that. There are protections provided for where anyone would be able to apply within two months to the District Court to get the vehicle back, or state in an application why it was not appropriate for it to be taken. It is the balance of rights and concerns that I have to assess.
I hear the Senator's concerns, and I can understand them, but I also hear the concerns of so many Senators and Deputies who, on this issue, have been emphatic. They say that unless we give An Garda Síochána these sorts of powers, we will not be able to protect people from what is a very threatening use of these vehicles, not in every case but in many cases. I cannot accept the amendment.
I move amendment No. 7:
In page 47, line 27, after “bicycle” to insert “, or cargo bicycle,”.
This suite of amendments simply seeks to include explicit reference in the Bill to pedal cargo bikes. There was some back and forth with the Minister on this issue during the Committee Stage debate. The placement of these four amendments varies slightly from that of the amendments we tabled on Committee Stage because the Minister expressed concern around the placement of our amendments and the relevant section. We have taken that concern on board. The amendments take account of the Minister's feedback and simply seek to provide a specific reference to cargo bikes within the definition of a pedal cycle or pedal tricycle in the legislation, whereas during Committee Stage, we tried to insert them within the definition of powered personal transport. Again, we have taken on board the concern with regard to the correct placing. However, we believe it is important that pedal cargo bikes be named and recognised within the Bill.
The Minister will be very aware of the widespread and growing use of cargo bikes for transport, leisure and last-mile delivery purposes across Europe and indeed in Ireland. Many people who require the use of the car, for one reason or another, may be more inclined to use a cargo bike than a standard pedal bike or trike, given that they can safely transport greater volumes than on a traditional pedal bike with a rack or pannier. Cargo bikes also provide families with the option of choosing a more active mode of travel. With regard to their use for commercial purposes, a 2021 survey undertaken by the University of Westminster identified the many environmental benefits and increased efficiency and productivity of cargo bikes for last-mile delivery, and I notice that is compared with traditional combustion, hybrid and electric delivery vehicles.
Cargo bikes have a positive role to play both commercially and in households. If we are serious about encouraging people to use cleaner and more active modes of travel, it is important that protection is provided in the legislation for the variety of active travel modes. Our concern is that if the legislation does not include an explicit reference to cargo bikes, there could be an inadvertent conflation with what constitutes a powered personal transporter, which specifically excludes bikes equipped for the carriage of goods. That could create a legal ambiguity around the use of cargo bikes. Those who choose to transport goods in this manner may therefore not be covered or protected by the provisions of the Bill. At a time when there are pilot schemes trying to encourage businesses to switch to cargo bikes, particularly in our urban city centres, they may not be confident that they are covered or protected by the provisions of the Bill.
I know the Minister agrees on the importance of facilitating the wider use of cargo bikes and trikes and their increased uptake, so I hope he might consider accepting this amendment.
I do want to encourage the use of cargo bikes and tricycles but I am afraid I cannot accept the amendments because I do not think they are necessary. In fact, they could confuse matters, which I am sure we would not want to see happen.
At the points where Senator Higgins is proposing to add reference to a cargo bicycle or tricycle to the Bill, we are amending the definitions of pedal cycle and pedal tricycle in road traffic legislation to provide clarity about electric bicycles and tricycles. Specifically, what we are doing is setting criteria according to which electric but low-powered bicycles and tricycles will be treated like normal bikes and tricycles. As the law stands, there is no such concept as a cargo bike. What we call cargo bikes in everyday language are bicycles in law, plain and simple, and cargo tricycles are just tricycles. That is why the amendments proposed are, in my mind, not necessary.
This leads to the risk of confusion. If "bicycle" already includes a cargo bicycle, which it does, then speaking about a bicycle or cargo bicycle, as the Senator proposes, implies that they are two different things. The Senator has not proposed a definition of a cargo bicycle or tricycle, and we do not really need one. They are already regarded in law as being bicycles or tricycles. If we were to amend the definition of a pedal cycle to cover a bicycle or cargo bicycle as proposed, there is a risk that other parts of the law which refer to a bicycle would then cease to apply to cargo bicycles because they would be something different.As the Senator says, and we agree, there is a place for cargo bicycles and tricycles in our transport mix and we want to see that increase. However, that place is by treating them, as we do now, as being bicycles or tricycles. There is no need to add them here and it would create the risk of unintended consequences. Therefore, I cannot agree to the amendments.
We have the concern in terms of how it is interpreted. At this point, we will need to go with the Minister's interpretation. However, I note that perhaps it is important that very clear signals are sent to accompany the roll-out of cargo bikes and that they are covered, if not by the provisions we have suggested, then by the Minister's message that he believes and is confident that they are covered. I know this is a concern that those looking to use cargo bikes have, namely, whether they have that proper protection of legislation. Again, I can see the Minister is confident in this regard but it is important that that is publicly conveyed, and maybe conveyed by those who are availing of some of the schemes that are set up in respect of cargo bikes as well, which would give confidence in the matter.
We will not press the amendments at this point.
This is a large grouping and it is good to have clarity on which amendments are being taken together so I can cover them all. Amendments Nos. 11, 16 and 29 attempt to delete references which the Minister inserted on Committee Stage to “other data-gathering devices”. We made very clear arguments against the inclusion of this wording on Committee Stage. The wording is far too open-ended and essentially permits the use of any surveillance technology to be employed on our roads without restriction. We have cautioned the Minister repeatedly against the use of such open-ended provisions in respect of data-gathering technology, particularly when that field is developing at an extraordinarily fast pace and where we are very often, as legislators, dealing with consequences or concerns in respect of technologies after they have been applied and after damage has been done. By including such broad provisions, we are leaving the door wide open for surveillance technologies which may not yet be understood, which may not yet be properly analysed, which may not have been properly risk-assessed and which may be deeply invasive, to be used without restriction. We are effectively opening Ireland up as a place to try things out in respect of surveillance technologies, which is not something we want for our country.
I am particularly concerned about this wording because it may permit the use of devices equipped with facial recognition technology. Of course, it may also permit the use of devices which are operating with artificial intelligence or according to other algorithmic identifications, with consequences and with data which may be gathered through that in an inappropriate way. It is worth looking to the UK to see how the unregulated and under-regulated use of such technology has played out there. A report launched by Big Brother Watch in the UK just this week found that 89% of live facial recognition matches on deployments by the Metropolitan Police and South West Police have been wrong since they introduced this technology, that is, an 89% inaccuracy level. This amounted to over 3,000 people wrongly identified by police facial recognition in the UK, with all of the knock-on consequences that has in terms of dealing with the breaches of rights this has created. Can we imagine what it would be like to be wrongly identified by a machine in respect of having committed a crime, and how distressing and traumatising this process can be, how difficult it will be to dispute the findings, and the potential consequences in personal life, in terms of employment and in public life, as well as the damage it does to the relationship between the public and those who are responsible for their protection?
This technology is not only deeply invasive but it is also deeply flawed and inaccurate. We raised points repeatedly in the previous debate about the issues with inbuilt racial biases that have been shown. Again, these are not speculative but known dangers in respect of these technologies. It should be noted that the activation of biases does not solely apply in respect of facial recognition technology but can apply in terms of other forms of technology which are based on stereotypes and assessments of risk that are algorithmically created. The Big Brother Watch report found that this technology, in particular facial recognition technology, discriminates against women and people of colour in particular. What is more worrying is that the technology is not reliable. It is deeply concerning that we risk playing so casually with people's freedom and with their civil liberties by legislating in such a casual and loose way around what are deeply consequential and deeply significant technologies.
I again urge the Minister to reconsider the wording in respect of “data-gathering devices”. If the Minister has certain technologies in mind, let him name them or, indeed, provide for a proper schedule and process whereby another technology may be added so there will be appropriate scrutiny on any new data-gathering device or data technology that may be added. With everything that we gather and use in this area, we need to examine and think about it very carefully. If the Minister does not wish to name or have a process or both whereby specific devices and technologies are identified and named, or added, even by subsequent legal process, let the Minister at the very least name the specific technologies which should not be permitted under the wording.
Amendments Nos. 34 and 40 would achieve this. Again, our preference is that we would have absolute clarity on exactly which kind of technologies and data-gathering devices would be used. However, if the Minister will not do that, the very minimum would be to give the assurance to the public and to us, as legislators, that certain kinds of technologies will not be added and used. Amendments Nos. 34 and 40 give the Minister the option for those exclusions. Some of the amendments are about inclusion and some are about exclusion. The core point is that we should not be putting a hostage to fortune in this legislation which allows not just the Minister but any future Government to almost use any "other data-gathering devices” in a manner that is potentially cavalier and, again, with consequences that are yet unknown.
I urge the Minister to take on board these amendments.If the Minister will not accept the amendments deleting this phrase, I ask that he at least consider amendments Nos. 34 and 40, to give us some protections and assurances regarding some of the technologies he will not allow to be used under that very wide definition.
I will not be able to accept the Senator's amendment but I want to explain why. She asked that I name the devices. To take an example, the tag used at a tolling booth is another such data-gathering device. I could go on. The nature of the tags varies but there is a range of different types of devices and I do not think I can list in primary legislation all those other data gathering devices that are essential for the management of the road system.
We have not come to it yet but I do intend to accept, subject to the debate, the Senator's amendment regarding the Minister having to devise the regulations, rather than using the word "may". In those regulations there is a requirement on the Minister to list and set out how exactly the use of such devices will be regulated. I hope that reassures the Senator and answers that question. We will have to be specific and those ministerial regulations will be a requirement rather than an option. I hope that will address some of her concerns. I will not be able to accept amendment No. 11 but I hope that gives her some reassurance.
The Bill will also insert a new section 77A into the Roads Act 1993, which will provide the basis in future for the use of traffic cams and other data gathering devices by TII and local authorities, and for the use of data from those cameras. This grouping includes a number of amendments that I am proposing and some proposed by the Senator. I would like to first explain some of my proposals as well as perhaps further comment on her amendments.
Amendments Nos. 12 to 14, inclusive, and 17 to 19, inclusive, make adjustments to the arrangements for these cameras to allow for flexibility for the local authorities and for TII. Both the local authorities and TII will be enabled to outsource the setting-up and operation of cameras if they wish. The current text of section 77A does not allow for outsourcing. In practice, these functions, like many other functions of public bodies, may be outsourced and so it is important to allow for this option to ensure that the policy intent behind section 77A is carried out. I reassure the House that outsourcing will not in any way diminish the legal protections surrounding security and use of any data obtained via the cameras or data gathering devices. Any processing of personal data, whether by local authorities, TII or other contractors, remains subject to the Data Protection Act as well as further provisions for data protection included in section 77A. The amendments will also allow for local authorities to operate cameras on nationally managed roads with the consent of TII and for TII to operate cameras on public roads with the consent of the relevant local authority. This will offer opportunities for TII and local authorities to co-operate in cases where it makes sense to do so.
Amendments Nos. 27 and 29 relate to devices that may be covered by section 77A. I am proposing to introduce a power under which the kinds of other data gathering devices in question must be specified, as I said earlier, in regulations. This is to ensure proper control over the type of device that may be used. The amendments will allow for regulations to specify the types of devices used by local authorities and TII. This will add extra safeguards as to the types of data gathering-devices to be regulated, which will only be those set out in subsequent regulations. It will also avoid the risk of unintended situations. For example, if it was not clear that this section related to specific types of devices identified in regulations, it might be possible to argue that a staff phone issued by TII that had a camera on it was a data-gathering device covered by this legislation.
The other amendments I am proposing in this grouping, namely, amendments Nos. 15, 20 to 26, inclusive, 28, 31, 32, 35, 39 and 41 to 43, inclusive, are essentially technical amendments to revise the numbering within section 77A and to clarify matters.
The Senator's proposal to delete references to other data gathering devices in section 77A is too limiting and would have a negative impact on TII and the local authorities. I believe my own proposals, which will ensure the devices in question are specified in regulations, provide the necessary protection while allowing for flexibility and future-proofing.
I acknowledge that there has been some movement from the Minister compared to Committee Stage. It is some assurance with regard to the processes we outlined and the ambiguity about whether there would be any clear regulations around the data obtained using cameras or other data gathering devices. As I understand it, the Minister is committing, through a later amendment, to making adjustments to the new section 77A(6) to ensure there will be regulations in that respect. That is something. However, the concern about the very broad framing still applies, as does the concern around operating "on behalf of".
I am looking to the way the data might be used as well. We need clarity about how the data will be processed fully. For example, will it be used for training? A lot of the tools that are offered to us for useful gathering of data are themselves using the data to train and shape their own processes. We are contributing to that, especially when using outsourced actors in this regard, and there is a question about how those outsourced and commercial actors, which may have multiple clients, are using the data. There have been multiple examples of concerns relating to that issue and concerns about data. This is potentially quite intensive data in respect of the public and operating in the public realm. We are talking about the public on our streets and on our roads and data gathering in respect of that public, in the public world and in the public space, which, bear in mind, is where a lot of people spend a lot of time. In China, for example, the public realm and public space has become a not-safe space for persons, where data is gathered in respect of them. There is still huge ambiguity here. I appreciate that the Minister has made some improvements in respect of the Bill, taking on board our points from Committee Stage, but my concerns still absolutely remain.
When I spoke first I perhaps did not respond in respect of all the Minister's regulations. I do not think amendments Nos. 30 and 36 are in this grouping.
We might come to them later. They relate the same issue and, therefore, that is why I have commented on them. They relate to the question of what the regulations might be. With respect to the Minister, I am also conscious that there will be different Ministers in the future who will produce regulations. There is always a pressure towards greater and greater surveillance within our public spaces. We have seen the consequences of that, as I said, in many parts of the world. We do not actually have to look to China, which used to be our example of the policing of all kinds of behaviour in public and the tracking of persons in public.We need to just look to the UK and some of the repressive laws applied there in recent times in respect of the right to protest. It is a deeply concerning application of laws.
I have concerns around how data gathering devices in their broadest sense may still be applied in respect of the public in our country. The provisions are still too wide and unclear. If we look to GDPR and that idea of “necessary and proportionate”, I am not confident that the necessity and proportionality test, which will need to be applied to the data, is being applied in the decisions to activate these broad-sweep data gathering devices in the public realm. It is not just around each individual use of it but rather if we are looking at wholesale gathering over long periods, I am not confident the right balance has been struck. I recognise the regulations may go some way but if I am looking to the primary legislation and its potential abuse, I still see huge scope for that as well as potential inadvertent risk that is not being avoided. I do want to be a situation where we are talking about how data gathered relating to the Irish public has been used and we are investigating the inappropriate use of inappropriate devices in the future. It does not serve anybody.
I note a related argument that we have encountered around a push for surveillance technologies in the past regarding illegal dumping – something we all want stopped. It is interesting that the push has often been on the use of surveillance technologies in a broad sense to prevent illegal dumping but, as we heard recently in a briefing on public waste disposal, countries that have public as opposed to private waste disposal and there is 100% access to waste disposal and services, for example, versus the partial access that Ireland has, do not have the same problems with illegal dumping. Often the solution of full surveillance that is pushed is not actually the relevant solution. The solution that other countries have found to prevent illegal dumping is the provision of public waste services to everyone at no cost. That may well prove to be a most cost-effective solution rather than blanket surveillance. I worry that we move to a heavily surveillance- and policing-based response rather than examining more effective solutions we might have.
In respect of amendments Nos. 30 and 36, I acknowledge that at least there is a guarantee that there will be regulations of some kind. However, the language in this, as primary legislation, is still too broad, which is why I have to press amendment No. 11.
It is difficult because our discussion is really about the future amendments, where it is my intention to accept what the Senator said during the Committee Stage debate and put a requirement on the Minister to be specific in respect of how it is regulated. In response to some of the direct concerns, those regulations include how data might be provided, used, stored, destroyed and so on. It is that amendment to the Bill, which we will discuss later, which I hope gives some of the protections that the Senator is concerned about.
With regard to amendment No. 11 on data sharing devices, we still need other data sharing devices to be subject such regulations and, in that way, I cannot accept the Senator’s amendment. We will continue the debate at the later amendment.
I understand the Senator’s concerns on surveillance and surveillance of public spaces, and I believe they are genuinely and sincerely held. However, we live in an increasingly data-driven and software-driven world. In some parts of the world, it feels as if there is an awful lot more surveillance, though I am not sure how proactively managed it is.
I welcome this legislation and the amendments being brought forward. I acknowledge and thank the leader of my party, Deputy Micheál Martin, and Deputies McAuliffe and Lawless for the work they did on it.
I come from the constituency of Dublin Central in the inner city of Dublin where, unfortunately, lives have been lost through the misuse of vehicles. Quads and scramblers used in an antisocial way have taken lives and destroyed many other lives - the family and friends of those who lost their lives. They have robbed our public spaces from the rest of our community who feel that public spaces or parks - I am thinking of the lovely Tolka Valley Park and other parks in the area - have become unsafe for other citizens to use. I welcome the additional powers being introduced to ensure that scramblers, quads and other vehicles are used in a positive way, that the Garda are given powers to seize and prosecute antisocial use of such vehicles and that there will be increased penalties.
The solution to concerns about how data is used is not to exclude the use of data gathering from legislation. It is, as the Minister proposed, to regulate that use. We live in a world where there is an increasing use and gathering of data. We need to ensure that it is used in a well regulated, responsible and transparent way. For that reason, we support the legislation and look forward to it being enacted.
Garret Ahearn, Niall Blaney, Lynn Boylan, Paddy Burke, Malcolm Byrne, Maria Byrne, Pat Casey, Lisa Chambers, Martin Conway, John Cummins, Paul Daly, Mary Fitzpatrick, Robbie Gallagher, Róisín Garvey, Paul Gavan, Seán Kyne, Tim Lombard, Vincent P Martin, John McGahon, Erin McGreehan, Eugene Murphy, Joe O'Reilly, Pauline O'Reilly, Ned O'Sullivan, Mary Seery Kearney, Marie Sherlock, Mark Wall, Fintan Warfield.
Does this take powers away from the local authorities? This amendment would allow the Minister to override local authorities. Is he taking the powers away from the manager? In what cases would this amendment come in? TII makes recommendations for national primary and secondary roads. This relates to roads other than nationally managed roads, meaning local roads and so forth. I did not think the Minister would be getting involved in making recommendations on speed limits for local roads.
This is to give flexibility and it is not in any way to diminish the role of local authorities. It may sometimes involve TII asking the local authorities to take some of the functions in national roads. It is not to restrict local authorities, but to extend their capabilities.
On Committee Stage we discussed some of the data-protection measures in the new section 77A, which the Bill will insert into the Road Traffic Act 1993 to deal with traffic cameras and other devices. I thank Senators Ruane and Higgins for drawing attention to the important issue of data protection regarding the use of cameras and other devices on our roads. I believe we are in agreement on the principles of protecting personal data and making sure that the technology cannot be misused. I remind the House that any processing of personal data is already subject to the Data Protection Act. We will discuss that further when we come to talk about facial recognition technology in a later amendment.
This group of amendments relates to provisions of the Bill to allow for regulations adding further data-protection measures over and above existing law. On Committee Stage, Senators Ruane and Higgins raised the fact that the additional data-protection regulations were made optional, in that the Bill stipulated that they "may" be made rather than that they "shall" be made. I have re-examined the Bill in light of that discussion and that has led me to propose amendments Nos. 30 and 37. Section 77A(6) allows for regulations for sharing by local authorities and TII of the data obtained from traffic cameras and other devices.Section 77A(7) says these regulations may include further data protection measures. On reconsidering the issue, in light of our previous discussions, I propose in amendment No. 30 to change "may" to "shall". This means if regulations are made on the sharing of data, they will have to include the additional requirements of section 77A(7). I propose a similar change to section 77A(10). This subsection says regulations may be made on the handling of data by bodies holding them. As such, it applies not only to bodies with whom the data are shared, but also to handling of the data by the road authorities and by TII. In this case, I propose to change "may" to "shall", so that regulations covering the matters in section 77A(10) will have to be made. This is set out in amendment No. 37. I notice Senator Ruane also proposes a change of "may" to "shall" at this point, via amendment No. 38. I am happy to say we are in agreement. My amendment is slightly different, in that it also incorporates a change to the numbering of section 77A(10), which will become section 77A(12), to take account of earlier changes in the amendments dealt with today. I ask the Senator not to press amendment No. 38 and to agree on amendment No. 37.
Senators Higgins and Ruane also propose to change "may" to "shall" in section 77A(9), via amendment No. 36. I do not agree that changing "may" to "shall" is warranted in this instance. Section 77A(9) allows for the Minister to prescribe suitable and specific measures, including those listed in section 36(1) of the Data Protection Act 2018, to protect the rights and freedom of data subjects. Most of the measures in section 36(1) of the 2018 Act are already listed in section 77A(10). Section 77A(9) offers an option, where needed, to go beyond what is in section 77A(10). Now that I have agreed with Senators Ruane and Higgins that we should make the regulations, which go beyond the requirements of the Data Protection Act by making regulations under section 77A(10) mandatory, section 77A(9) offers an option of going beyond that again, if necessary in particular cases. As such, it makes sense to leave it optional, that is, to leave it as "may" rather than "shall". Therefore, I cannot support amendment No. 36.
I hope it is clear from what I have said that we are considering carefully what was said on Committee Stage. We have agreed that there should be mandatory rather than optional regulation of data handling, over and above the requirement of the Data Protection Act, by proposing to change "may" to "shall" in section 77A(7) and section 77A(10). Going beyond that in section 77A(9) is unnecessary for the reasons I have set out.
I acknowledge and welcome the Minister's acceptance of the point we made about the need for a guarantee of regulation, rather than just a possibility of regulation, of data protection in the application of these factors. In that sense, I support and welcome amendments Nos. 30 and 37. Amendment No. 37 is almost an identical version of our amendment, amendment No. 38, but with the placings added. In that context, we are quite happy to accept amendment No. 37 instead of amendment No. 38, as it does the same work. I also welcome the decision on amendment No. 30 and the Minister's commitment to introduce regulations on this. We were looking for something useful, with regard to the suitable and specific measures, to recognise that specific tailored measures may be needed with regard to a number of these technologies. However, as I understand from the Minister's reply, he is still aware that further measures may be needed which are suitable, specific and tailored to these technologies and this context and that those measures would be in addition to the basic measures within the Data Protection Act. In the context where the Minister has taken on board our concerns about regulation and committed that there shall be regulation in each of these two areas, we will be happy to withdraw our amendments and we look forward to engaging with the Minister. We will be looking, with great interest, to the regulations that will be created. We hope they will be of the highest standards and affect the principles of necessity and proportionality.
This is a small, but important, amendment to improve data protection with regard to traffic cameras and other devices. Subsection 8 of the new section 77A that is being inserted into the Roads Act 1993 relates to data-sharing agreements when data from the cameras and devices in question are to be shared. Section 77A(8) lists matters which may be specified in a data-sharing agreement. One of these matters is that a data protection impact assessment, DPIA, should be conducted under section 84 of the Data Protection Act 2018. That section of the Act deals with DPIAs carried out with regard to processing of personal data for law enforcement purposes.
The House will be aware that European data protection law is based on two European legal instruments, EU Regulations Nos. 679 and 680 of 2016. EU Regulation No. 680 deals with data protection in the sphere of law enforcement and is widely referred to as the law enforcement directive. This is reflected, as far as DPIAs are concerned, in section 84 of the 2018 Act. EU Regulation No. 679 is the general data protection regulation, GDPR, which deals with all other aspects of data sharing and processing. A DPIA can be carried out under either but, at present, section 77A(8) refers only to a DPIA under section 84 of our Data Protection Act, which means it only covers a DPIA under the law enforcement directive. I therefore propose amendment No. 33 to add a reference to a DPIA under EU Regulation No. 679 in order that the DPIA in question could be a DPIA for any purposes and not just for law enforcement. This is necessary in the interests of data protection. If we do not do this, it will mean data-sharing agreements under section 77A(8) will include a DPIA only if they come under the law enforcement directive and not if they come under GDPR.
I move amendment No. 34:
In page 60, between lines 25 and 26, to insert the following: "(8A) Cameras operated by or on behalf of a road authority under this section shall not be equipped with facial recognition technology, and no data obtained using such cameras shall be processed by the road authority using facial recognition technology, or be passed to third parties for processing with facial recognition technology."
Amendments Nos. 34 and 40 seek to insert a clear restriction. One question we have is around having clarity on what is included in the description of data-gathering devices. Amendments Nos. 34 and 40 would make clear what is certainly excluded. There would be clear "restrictions on use of facial recognition technology" in conjunction with cameras or data-gathering devices under this Bill. These amendments would ban the use of facial recognition technology within the cameras; the processing of data from the cameras with facial recognition technology and the passing of those data to third parties for processing with facial recognition technology. I will draw the Minister's attention to the recent news from Europe. Key votes on the upcoming artificial intelligence, AI, directive have seen the outright ban on public collection of biometric data upheld. There were very clear restrictions on the collection of biometric data, of which facial recognition is part, within the GDPR directive. Key votes on the AI directive have reinforced that. A recent article from Euractiv highlights that a vote to retain the ban was definite:
The split vote on the biometric recognition systems, the only one tabled upon the insistence of the centre-right EPP, was not even close, with 58 votes to maintain the full ban, 10 abstentions and 36 [directly] against it.
The signals we had from the GDPR directive were that facial recognition was biometric data gathering and would need to be completely restricted. Most groupings, including the Green Party's groupings within Europe - with the exception of the very conservative EPP grouping - are against the public collection of biometric data through facial recognition technology. This means there is likely to be an EU-wide ban on biometric identification systems and the use of AI models for biometric categorisation, predictive policing and facial images for the building of databases.The upcoming ban is particularly significant and relevant to this legislation given that the current wording of the Bill in section 77A(1)(c) provides for the use of cameras to prevent crime which again seems to allude to the issue of predictive policing. There is no question about the use of certain technologies when it comes to detecting or investigating crimes. However, it is clearly a different piece to look to it as a preventative or predictive measure and where there is the wholesale gathering of biometric data including through facial recognition technologies in basically a fishing exercise which then subsequently to its gathering may be used for various purposes. The wording in the Bill around any data-gathering devices to be used on our roads could clearly be seen as permitting the use of devices which gather biometric data. Public biometric data gathering will potentially become illegal. Why does the Minister not accept our amendment? These are very targeted amendments and much more moderate than the amendments to remove the phrase relating to data-gathering that we previously had. These amendments No. 34 and No. 40 simply clarify that facial recognition technology would not be included in that definition of data-gathering devices. The amendment pre-empts what may be in EU law and reduces the potential for our national law to effectively come into conflict with future EU law.
Amendment No. 40 is a very reasonable compromise whereby if the Minister does not wish to include an outright ban on facial recognition technology in the primary legislation, amendment No. 40 simply gives the Minister the powers to ensure there will be regulations to limit what forms of technology may be used to process data under the Bill, including but not limited to facial recognition technology. I believe most of Europe has been very clear on this. The reason we have seen strong support for bans on facial recognition technology right across Europe is because where it has been used, it has been ineffective, inaccurate and dangerous. We spoke earlier about those who lost their lives in regard to certain vehicles. There are also those who lost their lives to inaccurate, inappropriate and dangerous facial recognition technologies and an excessive reliance on preventative policing or similar measures. There are significant negative consequences to using this technology and it is not a neutral position to use it. I hope the Minister will accept these very reasonable amendments.
I thank the Senator. As we discussed on Committee Stage, I share a lot of the concerns the Senators have with regard to the potential use of facial recognition technology and artificial intelligence machine process learning capabilities to infringe civil rights and therefore have to be treated with the utmost caution in terms of how we apply and deploy that technology . While I understand that requirement, for a variety of different reasons which I will set out here I will not accept the two amendments. First, this is hugely complex issue and the setting of legislation in terms of how we define or regulate both artificial intelligence and facial recognition technology requires really detailed assessment. We need a principles-based approach and sometimes there may be conflicting principles between, let us say privacy and protection of our people. We need to have a clear assessment of what the technology is capable and incapable of. Included in that would be a detailed assessment of the accuracy of some of the technology or some of the biases it might bring into a policing system or any operation of the State before we come to decisions around how we might legislate for it. As I understand, we do not have legislative clarity around what facial recognition technology is and it is an evolving technology. We similarly await the completion of the European AI directive and the Senator is right that there are a lot of concerns within the European Parliament about this issue. That process is not concluded. My understanding is that it is to conclude this year. In advance of that, for us to try to second-guess where the EU AI directive will go would not be a good legislative approach. I believe the protections we have just put in with some of the amendments to make sure the GDPR, which we have in place, give us as much protection as we can seek from that.
As we discussed in the previous amendments, I refer to the ability and power of the Minister for Transport of the day to be able to regulate what devices, other technologies, or processing of information will be possible under this section. It is not my intention to issue regulations that would allow the facilitation of the use of facial recognition technology. I hope that gives further reassurance in that regard.
As for the powers in amendment No. 40 specifically, as those powers were just legislated for in the requirement of the Minister to set out regulations in how such data would be processed, I hope that addresses the requirement onto that legislation.
To summarise, there is concern and the need for caution around the use of facial recognition technology. Most people I talk to do not say "Never, ever" but there are such challenges, difficulties, and uncertainties regarding its use that we have to make sure that we do that, if we every do that, in a way that absolutely protects the civil rights of our people. I do not believe this legislation is the location where we set out that entire edifice of legal requirement. The Oireachtas Joint Committee on Justice chaired by Deputy Lawless has done some work on this. I think, from his public utterances, he is looking to come back to it and that committee is well-placed to assess the competing and conflicting principles and to get a deeper understanding of what the technology is and is not capable of. The protections we put in through the amendments we have just agreed provide, I hope, some reassurance we will not use this technology in this light. Therefore I cannot accept the amendments but I understand where they are coming from.
The amendments the Minister has just put in may go some way towards amendment No. 40, in that there may be powers. They do not provide an assurance that the powers will not be used in that light at all. It was not addressed whatsoever because while regulations may be made under amendment No. 40, the regulations do not specify it. I draw the Minister to a core principle of Europe, and of Ireland as part of Europe, which is the precautionary principle and the principle of do no harm. With respect to suggesting we are in a situation where we are balancing the potential goods of facial recognition technology against the potential negatives, let us be clear the negatives are clearly proven and demonstrated. The question of what caveats might be balanced out are not.
It is literally only the most conservative groups within Europe, including the European People's Party, that are pushing against this AI directive. I worry we are not taking the opportunity to effectively respect the precautionary principle, the principle of doing no harm and the principle of not excluding something which has been shown to cause very significant harm. When we say this is a discussion that is going on, part of what influences those discussions is what we do in our national states. Let us be clear, Fine Gael are gung-ho for this. There is a lot of language about wanting more use of cameras and facial recognition technologies and so forth that has been in the public domain. Ireland should take the right decision by explicitly stating we will not allow facial recognition technology. While the Minister mentioned the Minister for Transport, whoever that may be in the future, we do not have any guarantees that facial recognition technology is off the table now. Our amendment would have ensured that. Facial recognition technology, with all of those serious dangers mentioned by the Minister and the fact it is so consequential, has cost lives by its inaccuracy and its misuse and it is so deeply encoded with biases in terms of racial biases and biases against women for example, that it has an 89% inaccuracy rate.That is an accuracy rate of 11%. Can the Minister imagine rolling out any other technology with a 10% success rate and a 90% fail rate that would be influencing policing decisions? That is wild, so we should ban it. If we need to amend the legislation, if it is improved in the future, that should be done as part of a long and thoughtful process that would again involve the scrutiny of the committee. The Chair of the committee, Deputy Lawless, has himself been clear about some of the dangers of facial recognition technology.
I am concerned because I do not believe we are taking a sufficiently cautious approach on this. We are not respecting the precautionary principle. I recognise that my amendment No. 40 may no longer be necessary, but I am afraid I must press ahead with the core amendment, which simply says we need to have a ban on this technology because this is a marker that is somewhat dangerous.
I know the Minister's colleagues in the Green Party at European level have recognised the dangers of this technology. I hope it gets banned at European level but it would have been very positive if Ireland had shown leadership by ensuring there would not be a risk of it being inserted and activated in national legislation pending that process.
I will comment briefly. I am confident that the requirement and therefore the power of the Minister to issue regulations will allow us to provide the precautionary principle here and not allow the use of this technology. The proper drafting of legislation in this area requires further analysis and complex assessment, including what happens in Europe. We cannot just operate on signals from parliamentary committees. We must make sure that when we act, which we need to do, that the measure is robust, well defined and clearly set out. In the meantime, we will not be regulating for the use of facial recognition technology on any transport data-sharing devices. That gives us time and space to be able to do the proper legislative work.
With the measures being included in the Bill it would become possible to declare a road or part of a road to be a national managed road. Where a road or part of a road has been declared to be a national management road, TII will be empowered to set special speed limits on the road. Senators will recall that the law on speed limits prescribes default limits for different classes of road. It also allows the roads authority to vary these by what are called special speed limits. This system of allowing roads authorities options means they can apply limits that are appropriate to the particular characteristics of specific roads and stretches of road. This has raised the question of the status of by-laws made by local authorities on a road which then becomes a national managed road. The question is whether a local authority by-law, which has been made before the road became a national managed road remains in force unless and until TII changes it.
In order to ensure there is no ambiguity on this, amendment No. 45 will declare that a special speed limit set by a local authority for a road which later becomes a national managed road will remain in force until TII changes it. Amendment No. 44 is a consequential amendment to the text to accommodate amendment No. 45. The issue here is safety. If the local authority has determined that a particular road or a particular stretch of road requires a speed limit different from the default, we do not want to create a situation where that limit would be void on becoming a national managed road with the road returning to its default limit.
Under this section the amendment states that any changes to by-laws would be advertised in at least two national daily newspapers. I suggest that it would also be advertised in one of the local newspapers in circulation in the area where the changes are to be made.
Am I correct in taking it that under this section the speed limit on dual carriageways could be up to 120 km/h and that the amendment tabled changes it so that it will relate only to the speed limits that are in place at the time? There were no dual carriageways in the country at that stage. The maximum speed on a dual carriageway is 100 km/h. The reference in the Bill in section 9A(2)(f) is to "120 kilometres per hour, in respect of a dual carriageway that forms part of a national managed road". We are talking about national managed roads. As far as I understand, no dual carriageway has a maximum speed of 120 km/h. Will the amendment the Minister is introducing set the speed limit at the current maximum speed, which is 100 km/h for national routes, which includes dual carriageways? I would welcome clarification on the matter.
This is a really important part of the Bill. The TII has often made decisions on the speed limits for certain types of road, but it is important, as we heard the Minister say, that if local authorities have an issue with the limit that is set that it can be looked at and changed. I have put up many photos of where there is an 80 km/h speed limit right on a bend or one where there is an 80 km/h sign and right underneath it a sign warning people to slow down because there are children at play. In my village of Inagh, there is a speed limit of 60 km/h going through the village. There are serious issues with generic speeds on certain classes of road being rolled out across the country that in lots of circumstances are inappropriate. It is very good to see this measure in the Bill. We will need to send circulars to all the local authorities to remind them of that because for years local authorities said, "Sorry, we cannot do anything about it; that is TII's responsibility." It might be good if we could get this information out to the local authorities to remind them that there are issues of inappropriate speed limits in individual villages and towns. It is important that they are reminded that they can request TII to examine the decision again. I welcome the decision.
I would also like to see an examination of the speed limits outside villages, such as 50 km/h, or 60 km/h in the case of Inagh. I do not know how the speed limit through a village could be 60 km/h. It is beyond me. I believe the reduced speed should be extended further out of towns, as it would increase the opportunity for people to walk or cycle within the radius. The reduced speed limits are often very close to the village.Do you know what I mean? If we can bring them out further, it will have two effects. It will slow down traffic before it hits the village rather than at the village itself. With regard to planning, housing is only allowed within the speed limit boundaries of a town, which leaves very little space for buildings in our towns and villages, which is where we want houses to be built.
I do not disagree with the Senator. The legislation does what it seeks to do. It gives flexibility to local authorities. It makes it site-specific, which is particularly useful when it comes to saving lives. The national review of speed limits is to come out very shortly. That will inform a wider public debate on what we are doing as regards speed policy. I do not believe the amendment goes against the desires of either Senator.
I thank the Senators very much. Important amendments were agreed in this House and these have added to and improved the Bill. It proves the purpose, worth and benefit of having this Chamber to improve our legislation. I thank my officials for the excellent work they have done. The Bill has had a long and slow progress, interrupted by the Covid pandemic. The timelines were difficult but I am very glad the Bill has passed in the Seanad. There is one last hurdle. We have to go back to the Dáil to get agreement to some of the amendments agreed to here. Subject to that, I look forward to this Bill being enacted and whole variety of different and very consequential measures being put into effect. I thank the Acting Chairperson and I thank the Senators for their contribution to this Bill.