Maria Byrne (Fine Gael)
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I welcome the Minister of State, Deputy Ardagh.

Chris Andrews (Sinn Fein)
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I move amendment No. 1:

In page 10, between lines 33 and 34, to insert the following:

“8. The Minister, having consulted with the Minister for Foreign Affairs and Trade, may by regulation direct that the Director suspend cooperation, in part or in full, with a state in breach of— (a) the Rule of Law Conditionality Regulation, or

(b) Article 6 of the Treaty on European Union, or whereby cooperation would place Ireland in breach of Article 6 of the Treaty on European Union.”.

We have seen in the past where democratic backsliding has occurred in EU member states, most notably Hungary, in terms of the rule of law and interference with the courts. There needs to be a mechanism available to Ireland which ensures that, where appropriate and necessary, we can suspend co-operation with the consent of the Ministers for justice and foreign affairs. Amendment No. 1 would introduce such a mechanism and prevent Ireland from being locked into agreements with states from which we diverge in regard to the rule of law and human rights. A case in point is that Ireland is currently stuck in the EU-Israel Association Agreement, seemingly without recourse and blocked from taking any action by other member states. We should not have signed up to that agreement. I hope we all agree that signing the agreement was a mistake. We have no ability to unilaterally leave it. We should avoid locking future Governments into that sort of position.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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I regret that I cannot accept the Senator's amendment. The e-evidence package provides for co-operation between member states of the European Union. It does not allow one member state to unilaterally suspend its operation. The amendment would be in clear breach of our legal obligations under EU law.

On a point of principle, giving a member of the Executive the power to interfere with the exercise of judicial functions by a judicial authority within the European Union would be a breach of the democratic principles of the separation of powers and the rule of law. The director is being made independent specifically to prevent any suggestion that he or she might be subject to the influence or a direction from a member of the Executive as regards to the implementation of judicial orders. The e-evidence regulation already contains certain safeguards, including the provision in Article 1(3) which states that the regulation shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in the charter and in Article 6 of the Treaty of the European Union.

The regulation also has specific safeguards where, under Article 8 the Irish enforcing authority must be notified of incoming European production orders, unless they relate to an offence in the issuing state committed by a person who resides in that state an execution can be refused. Article 10 provides a channel whereby the service provider may alert the Irish enforcing authority when it considers that the order would interfere with freedom of expression. Article 12 provides for a range of grounds on which an enforcing authority may refuse to execute a European production order. These grounds include: where the data is protected by immunities or privilege under the law of the enforcing state or where the data requested are covered by rules relating to freedom of the press or freedom of expression of other media where execution would result in a manifest breach of fundamental rights, as provided for by Article 6 of the Treaty of the European Union and in the Charter of Fundamental Rights of the European Union; where the execution order would violate the principle of ne bis in idem whereby a person cannot be tried or punished twice for the same offence; and where the conduct for which the order has been issued does not constitute an offence under the law of the enforcing state save in circumstances where the offence is listed in Annex 9 of the regulation and carries a maximum custodial sentence of at least three years in the issuing state.

In addition to the safeguards already outlined, I would also point to Recital 11 of the regulation, which confirms that nothing in the regulation should be interpreted as prohibiting the refusal of a European production order by an enforcing authority where there are reasons to believe that the order has been issued for the purpose of prosecuting or punishing a person on account of a person's gender, racial or ethnic origin, religion, sexual orientation or gender identity, nationality, language or political opinions. For the reasons I have just outlined, I cannot accept the amendment.

Maria Byrne (Fine Gael)
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Amendments Nos. 2, 4 and 7 are related and may be discussed together by agreement. Is that agreed? Agreed.

Chris Andrews (Sinn Fein)
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I move amendment No. 2:

In page 15, between lines 14 and 15, to insert the following: “(g) ensure minimal administrative burden is placed on small to medium-sized service providers.”.

Ireland has a particular responsibility in terms of this legislation, given the number of service providers based here. Up to 600 service providers could be designated as addresses and they are expected to receive upwards of 300,000 orders annually as opposed to the 2,000 orders it is expected that Ireland will issue to service providers across all other EU states. As such, there is a concern as to the administrative burden that this would place on SMEs. It is right, therefore, that the director has it as a function to ensure this burden is minimised.

Amendment No. 2 seeks to address the point. While it is expected that a small handful of big tech companies will receive 90% of the requests, that still leaves a sizeable volume in terms of SMEs. The Department's SME test stated that for SMEs in particular the requirement under the e-evidence package for authorities to nominate an addressee as a single point of contact for law enforcement authorities seeking to access electronic evidence will make it easier and more affordable for service provides to authenticate production orders. However, the most significant burden on SMEs identified by the Commission's assessment is the obligation to designate and empower a legal representative. This is all taken directly from the Department's regulatory analysis. For SMEs not already engaged in voluntary direct co-operation activities, the e-evidence package presents a new regulatory burden that comes with potential legal, administrative and technical costs. SMEs that do not designate an addressee, for example, or that fail to comply with the e-evidence directive or regulation will be exposed to administrative penalties. While many large service providers will create their own infrastructure to connect with the decentralised IT system, a requirement for SMEs to do the same would have a disproportionate impact.That report says that consideration is being given to the development of a web-based interface, which will allow service providers to communicate securely with authorities without having to establish their own infrastructure. Has this happened and will it be available by the time obligations are in force? Will SMEs be trained on it in advance? What is particularly concerning is that the Department has as yet no idea of the number of microenterprises with fewer than nine employees that will have to meet their obligation but does know, according to its own report, that SMEs will incur additional administrative costs.

Further to amendment No. 2, amendment No. 4 is needed to ensure that guidance has been provided to SMEs in advance of obligations kicking in. Likewise, amendment No. 7 seeks to protect SMEs should the Government's delay in bringing forward this legislation by the transposition deadline last February result in them being unready. Guidance must be provided and the online portal must be ready. Sinn Féin appreciates that mechanisms exist allowing for an adjudicator to opt not to impose a financial penalty in terms of micro-SMEs where requests are out of hours. However, some of these orders can have compliance times measured in hours, not days. Even an SME with 20 to 30 staff might struggle to have an appropriately trained person on hand effectively 24-7 who is able to process a request within those incredibly limited timeframes. Therefore, if these new obligations are to be placed on SMEs, the Government must hold up its end of the bargain and ensure that SMEs are adequately prepared before any financial penalties can even be considered to be brought to bear.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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Obviously, our Department is aware that the SMEs are the backbone of the Irish economy. Regretfully, I cannot accept any of these amendments. With regard to amendment No. 2, the legal obligations on service providers, including small-to-medium-sized enterprises, are determined by the regulation and directive and it is not open to the director to alter them. Furthermore, even if it were possible for Ireland to exclude SMEs from the scope of the e-evidence package, to do so would create a gap that could easily be exploited by criminals by moving to services offered by SMEs. This would seriously undermine the effectiveness of the e-evidence package.

In terms of measures to reduce the administrative burden, I will point Senators to sections 38 and 40 of the Bill, which are specifically designed to allow the director to remedy breaches by service providers without the need to proceed to investigations and the imposition of fines. In particular, the director can seek a compliance report to clarify what the issues are and may enter into an agreement with the service provider setting out the steps to be taken to remedy any issues identified. That said, if there is a case of non-compliance, there will be an administrative burden on service providers that are subject to investigation. This cannot be avoided if a proper, fair and impartial investigation is to be carried out.

The purpose of establishing an independent office is to ensure that the Minister, as a member of the Executive, does not have any direct role in the enforcement of the obligations on the service providers under this Bill. It would be neither desirable nor practical for the Minister to publish guidance notes when he or she has no role in determining compliance with the provisions. That is why section 22 provides that the director may issue guidance notes, and I will not agree to an amendment that would undermine the role of the director in that regard. I would again point out that the provisions at sections 38 and 40 are specifically designed to allow the director to remedy breaches by service providers without the need to proceed to investigations and the imposition on fines. In particular, the director can seek a compliance report to clarify what the issues are and may enter into an agreement with the service provider setting out the steps to be taken to remedy any issues. Furthermore, there is a legal obligation on adjudication officers under section 50(2)(f) to give special consideration to SMEs when considering the imposition of fines. The purpose is to ensure compliance and the imposition of fines is very much a last resort.

Maria Byrne (Fine Gael)
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Is the Senator pressing the amendment?

Chris Andrews (Sinn Fein)
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Yes.

Maria Byrne (Fine Gael)
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Amendments Nos. 3 and 6 are related and may be discussed together by agreement. Is that agreed? Agreed.

Chris Andrews (Sinn Fein)
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I move amendment No. 3:

In page 16, between lines 23 and 24, to insert the following: “(4) Such an annual report shall contain statistical data in relation to—

(a) the number of orders which were notified to the Director,

(b) the number of orders that were refused,

(c) the number of agreements entered into with service providers under section 40(1) and the status thereof by category,

(d) the number of instances whereby a court confirmed, set aside, replaced, or remitted either the decision or financial penalty of an adjudicating officer,

(e) the number of instances whereby the Director failed to sanction or refuse an order within the required timeframe, and

(f) the whole-time equivalent allocation, by cost, by role,

including the data category requested, the addressees, the situation (emergency case or not), grounds for refusal by category, number of court appearances, by country of origin.”.

A significant concern raised on Dáil Committee Stage was the scale of the potential cost of the office. Deputies were not reassured by the officials. We know it is going to begin with a €2.8 million budget for this year, which will provide for 29 staff and associated costs. There are suggestions that staffing levels could reach upwards of 150. While the Department seems to think that the impact on the courts would be minimal, the Courts Service itself stated that limited data was available about the number of cases that may arise after commencement. Combined with the unknown outworkings of the Minister's reform to criminal legal aid and the EU Presidency putting pressure on the ability of gardaí to attend courts, who knows what type of backlog our courts will be facing after the summer?

Amendment No. 3 is intended, at the very least, to ensure that the Oireachtas has a full overview of the details, scale and volume of orders being processed in Ireland and the volume and associated cost being processed through this office. Similarly, amendment No. 6 seeks to ensure that the director is supplied with the bare minimum level of information required to understand the burden being placed on our SMEs as well as to identify any potential trends of abuse of process and make sure that we are not unintentionally supporting them.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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Regretfully, I cannot accept these amendments. Section 20 requires the publication of an annual report, which shall include such information as the director considers appropriate or as the director may direct. The section deliberately did not prescribe in detail exactly what statistical data should be included. We are setting up a new entity, and until we have some experience of how it operates, it would be premature to determine what statistical information is most relevant and available. I believe we should maintain a flexible approach at this stage, but I will put on the record that I see no reason for the information referred to in the amendment not to be included in the annual report in due course. I remind Senators that the Freedom of Information Act will apply, so there will be no question of hiding information.

On amendment No. 6, the e-evidence package, as set out in the relevant regulation and directive, is an EU-wide measure. Article 28 of the regulation provides for the European Commission to establish a detailed programme for monitoring and reporting the outputs, results and impacts of the regulations and member states are obliged to gather the statistical data specified in Article 28(2). Some of the data may be collected by the director but it would not be right to impose a legal obligation on the director to gather data that may be more easily collected through other sources. The new regulation already provides a legally binding mechanism for monitoring and reporting and would not be appropriate or a good use of resources to try to create a duplicate system at this stage.

Maria Byrne (Fine Gael)
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Is the Senator pressing the amendment?

Chris Andrews (Sinn Fein)
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I am.

Chris Andrews (Sinn Fein)
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I move amendment No. 4:

In page 17, between lines 3 and 4, to insert the following: “(2) Notwithstanding this section, the Minister shall, no later than 31 July, publish guidance notes for small to medium-sized service providers to promote compliance with their obligations under this Act.”.

Chris Andrews (Sinn Fein)
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I move amendment No. 5:

In page 21, between lines 34 and 35, to insert the following: “(9) Counselling records in relation to sexual offence trials shall not be processed under this Act.”.

Over recent months, the Oireachtas discussed the disclosure of counselling notes during sexual offence trials in a domestic context. This amendment gets to the core of concerns with this Bill. What if a court in another jurisdiction ordered the release of counselling notes held by an Irish service provider, such as one that provides data storage?Is the Minister of State willing to stand over legal protection for survivors of domestic, sexual or gender-based violence that is less than what we would provide for people in Ireland? The Minister of State might say that the legal system here is different and has different safeguards, and that would be true, but is she willing to stand over whichever legal system in the EU may provide the least protection to survivors? That would, in effect, be Ireland playing a supporting role in the lowest common denominator of European justice systems.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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I thank the Senators for this amendment and commend them for raising what is a very significant topic of concern and one that has been debated recently in this House at length.

I understand exactly why this issue matters so much to survivors of sexual violence and domestic abuse. For many survivors, counselling is a crucial and essential part of recovery. Counselling notes record some of the most private and painful information that a person will ever share, often at a time when they are at their most vulnerable. However, regrettably, I cannot accept this amendment. I want to set out why, in a manner that reflects the protections being put in place within the State and also in the context of the e-evidence regulation itself, to which this Bill will give further effect. I hope this will serve to provide some reassurance to survivors and to the Senators proposing these amendments.

We can all agree that the current statutory regime in Ireland relating to the use of counselling records in criminal trials for sexual offences is unacceptable. It is for that reason that the Minister has proposed, via the Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026, which was recently debated in this House, to amend section 19A of the Criminal Evidence Act 1992 to restrict the disclosure of counselling records and other personal records in sexual offence trials.

The amendment would delete the waiver provision contained in section 19A, which has all too often meant that victims have failed to benefit from the protections provided by the legislation. From now on, every time such counselling notes or personal records are sought by the defence, a court will carefully scrutinise the material and make an impartial and objective decision on whether disclosure is warranted.

Those amendments will also provide for a presumption of non-disclosure, ensuring that the default position is that these records are not to be disclosed. The exception will be where the court is satisfied, after examining the records, that they are likely to be relevant to an issue at trial and that there would be a real risk of an unfair trial in the absence of such disclosure, or that it is otherwise in the interest of justice to so order.

The Minister was advised by the Attorney General that it was not possible to introduce an outright ban on the disclosure of counselling notes, as to do so would be unconstitutional. Nonetheless, the Minister is confident that the proposed amendments, if accepted by the Oireachtas, will end the routine disclosure to the accused of the complainant's counselling notes in the trial.

Neither the e-evidence regulation nor this Bill is the appropriate vehicle to legislate for this issue. Applications under the e-evidence regulation for the disclosure of counselling records during sexual offence proceedings in this or any other EU jurisdiction are likely to be exceedingly rare. In most jurisdictions, including our own, the person in possession or control of counselling records will normally be the counsellor or therapist concerned, not a service provider. In the ordinary course of events, any order by a court to produce such records would be directed to that counsellor and not to a service provider under the e-evidence regulation. Therefore, while I understand the concerns of Senators, the fact of the matter is that the e-evidence regulation is unlikely to play any significant role in applications for the production of such records, much less their disclosure during a trial.

Additionally, the regulation, which will have direct effect in all member states, provides under Article 5.2 that a European production order may be issued only if a similar order could have been issued under the same conditions in a similar domestic case. Thus, the relevant national law will apply in each jurisdiction. Each EU member state regulates the disclosure of sensitive medical and therapeutic records differently through its own criminal procedure laws. In each jurisdiction, the courts must balance the necessity of the evidence for the prosecution or defence against the profound intrusion into the victim's privacy that the disclosure of personal records may entail.

In Ireland, section 19A of the 1992 Act will apply, and the Minister's amendments are clearly intended to rebalance the current statutory regime in favour of protecting the victim's right to privacy. Ireland cannot act unilaterally to limit the scope of the regulation in this way. Likewise, it is for each member state, including Ireland, to determine the national rules that should apply to the disclosure of personal records in sexual offence trials. It is for this reason that I cannot accept the amendment.

Chris Andrews (Sinn Fein)
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Could I ask for clarity?

Maria Byrne (Fine Gael)
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Yes.

Chris Andrews (Sinn Fein)
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Consider where the records go before a judge for him or her to decide whether something is relevant. If it is a big file, does the judge redact all the material that he or she feels is not relevant to the case? There could be material that is irrelevant but could be used to hurt the abused person or the survivor.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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There is obviously a presumption of non-disclosure, so unless it is relevant, it would not be disclosed. That is my understanding.

Chris Andrews (Sinn Fein)
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The judge could redact, in effect, the material he or she determines to be irrelevant.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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When it comes to regular legal privilege, such as between a solicitor and client, one would get the material only if it were absolutely relevant. If it were not relevant, it would not be disclosed. It would not be admissible.

Chris Andrews (Sinn Fein)
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All right. I thank the Minister of State.

Chris Andrews (Sinn Fein)
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I move amendment No. 6:

In page 26, between lines 27 and 28, to insert the following: "(2) The Director shall require all service providers to provide statistical information in relation to all orders received, including, by the data category requested, the addressees, the situation (emergency case or not), grounds for refusal by category, by country of origin.".

Maria Byrne (Fine Gael)
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Amendment No. 7 cannot be moved. It was already discussed with amendment No. 2.

Maria Byrne (Fine Gael)
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When is it proposed to take the next Stage?

Robbie Gallagher (Fianna Fail)
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Now.

Maria Byrne (Fine Gael)
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Is that agreed? Agreed.

Maria Byrne (Fine Gael)
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When is it proposed to take the next Stage?

Robbie Gallagher (Fianna Fail)
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Now.

Maria Byrne (Fine Gael)
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Is that agreed? Agreed.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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I thank colleagues for their engagement today and for the Bill's progression through the Houses.