Header Item Prelude
 Header Item Business of Seanad
 Header Item Commencement Matters
 Header Item Agriculture Industry
 Header Item Citizenship Applications
 Header Item Student Accommodation
 Header Item Schools Administration
 Header Item Message from Joint Committee
 Header Item Order of Business
 Header Item EU Directive on Financial and Other Information: Motion
 Header Item HIQA Report on Tusla: Statements
 Header Item Mental Health (Amendment) Bill 2017: Motion
 Header Item Data Sharing and Governance Bill 2018: Committee Stage

Tuesday, 26 June 2018

Seanad Éireann Debate
Vol. 259 No. 1

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Chuaigh an Leas-Chathaoirleach i gceannas ar 14:30:00

Machnamh agus Paidir.

Reflection and Prayer.


Business of Seanad

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan I have received notice from Senator Tim Lombard that, on the motion for the Commencement of the House today, he proposes to raise the following matter:

The need for the Minister for Agriculture, Food and the Marine to implement a long-term strategy to ensure the sustainability and resilience of the agriculture sector in periods of extreme weather.

I have also received notice from Senator Diarmuid Wilson of the following matter:

The need for the Minister for Justice and Equality to clarify the reason the Irish Naturalisation and Immigration Service sought information from an applicant, details supplied, about a conviction which he did not have and the recourse available to the person who has had his application denied in the absence of an appeals process.

I have also received notice from Senator John O'Mahony of the following matter:

The need for the Minister for Education and Skills to provide an update on the issue of student accommodation.

I have also received notice from Senator Robbie Gallagher of the following matter:

The need for the Minister for Education and Skills to address the current workload of school principals and to consider their request for one administrative day per week.

I have also received notice from Senator Victor Boyhan of the following matter:

The need for the Minister for Health to make a statement on the lack of funding required to support and sustain the Inishowen Children’s Autism Related Education, iCARE, based in Buncrana, County Donegal.

I have also received notice from Senator Colm Burke of the following matter:

The need for the Minister for Health to provide an update on the additional funding required by Cork University Maternity Hospital to facilitate the opening of the second gynaecological theatre in 2018.

 I have also received notice from Senator Máire Devine of the following matter:

The need for the Minister for Public Expenditure and Reform to make a statement on companies in receipt of public funding which refuse to implement Labour Court recommendations in respect of their employees.

I have also received notice from Senator Frank Feighan of the following matter:

The need for the Minister for Health to provide an update on the medical rehabilitation unit project at Roscommon hospital.

Of the matters raised by the Senators suitable for discussion, I have selected those raised by Senators Lombard, Wilson, O'Mahony and Gallagher and they will be taken now. I regret I had to rule out of order the matter submitted by Senator Colm Burke on the ground that it is a repeat of a Commencement matter raised on 30 May 2018. I regret I also had to rule out of order the matter submitted by Senator Boyhan on the ground that it is a repeat of a Commencement matter raised on 12 June 2018. The other Senators may give notice on another day of the matters they wish to raise.

Commencement Matters

Agriculture Industry

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan I welcome the Minister for Agriculture, Food and the Marine, Deputy Michael Creed. I am sure he is pleasing the farmers with the weather. Maybe I should not say too much about that.

Senator Tim Lombard: Information on Tim Lombard Zoom on Tim Lombard I welcome the Minister and acknowledge his presence. I ask that his Department develop a long-term strategy to ensure the sustainability and resilience of the agricultural sector during and after periods of extreme weather. It has been both an unfortunate and amazing year if one takes into consideration what has occurred in the past eight or nine months. We started off with Storm Ophelia. We then had nearly 2 m of snow in my part of the world in March and April and it has now been four weeks since we had rain. This is part of the pattern of climate we are seeing.

  Most Oireachtas committees have a major focus on climate change and the drastic changes it is bringing for all sectors of society. It will continue to have a major effect on the agricultural sector, for obvious reasons. We are dependent on what the weather will bring in many ways, whether it is the storms and snow that arrived in the early part of the year or the drought we have experienced for the past three and a half or four weeks.

  In many ways, we need to revisit our strategies. I am calling for a long-term strategy to be put in place to ensure the agricultural sector will be more sustainable and robust when it comes to dealing with these dramatic weather changes. For that to happen, a major body of work must be done by the Department of Agriculture, Food and the Marine. This will involve many stakeholders, including Teagasc, to ensure appropriate strategies are implemented. We do not want a repeat of the two fodder crises we have experienced in the past five years when we had to purchase fodder abroad. I have no problem securing fodder abroad but these crises have a major impact on the sustainability of the agricultural sector.

  In many ways, we need to build a new ethos for how agriculture, the agricultural community and industry can deal with major environmental changes, which will continue in the years and decades to come. The body of work I am asking for should include education for farmers to ensure they have more stocks and training for agricultural advisers to ensure they treat spring as an important time of year. In the event of a drought, discussion groups should meet every 14 days to respond to the climate changes that are taking place.

  In making this suggestion, I do not claim to have all the answers. I hope the Minister has some answers. In many ways, this is about a changing ethos and ensuring the agricultural industry moves and changes with the changing environment to remain sustainable and robust in the face of dramatic weather events such as those of recent years. I hope the Minister will start this process. We are dealing with a very short-term issue at the moment and the issue of fodder will also need to be addressed because problems will arise again in the coming months and years. In my part of the world, winter fodder is now being used as feed, which could unfortunately have consequences in the coming winter.

Minister for Agriculture, Food and the Marine (Deputy Michael Creed): Information on Michael Creed Zoom on Michael Creed I thank the Leas-Chathaoirleach for the words of welcome and Senator Lombard also for raising this matter.

  As was the case for many other sectors, agriculture has been affected to varying degrees by a series of weather-related events in recent years. Some of these were localised in extent such as the flash-flooding experience on the Inishowen Peninsula in August of last year. Other events such at the severe flooding of the winter of 2015-16 was regionally focused, in this case the west and midlands. The winter and spring just past on the other hand were characterised by a prolonged and persistent period of poor weather, in the first instance affecting mainly the west and north west of the country. Following the snow of Storm Emma in March, the situation, particularly as to the availability of fodder, spread to all parts of the country.

  Extreme weather events can therefore be anticipated to occur at greater frequency and the agricultural sector is most vulnerable to the effects of these events, which are partially inspired by climate change. My Department is now preparing sectoral climate change plans for the agricultural, forestry and seafood sectors, in line with the national adaptation framework, published earlier this year. A key priority of these plans will be to provide guidance on adaptation planning at farm level to build resilience in the farm sector. It is the building of this resilience that is at the core of my Department's focus in addressing the challenge of climate change.

  As occurrences of such events increased in recent years, the response of my Department to each severe weather challenge has been informed by the specific needs of the particular situation and delivered in a timely fashion within state-aid rules that specifically apply to the sector. For example, in response to pressures on fodder supplies, felt initially in the west and north west, caused by a long wet winter and spring, I introduced the national fodder transport support measure in January 2018. As a further support I introduced a fodder import support measure in the first week of April in response to the need for additional sources of fodder from abroad and also to complement the more locally-based fodder transport support measure. These two interventions, working together effectively, addressed issues around fodder availability in the country due to the most recent weather event.

  I fully share the view that the agricultural sector must be enabled to sustain itself and build up resilience in the shorter term in the face of external weather challenges. It was for this specific purpose that last May, last month, I requested Teagasc to convene a stakeholder group representative of industry, banks, agricultural media, farming bodies, etc., to co-ordinate advisory messages to farmers this summer concerning replenishing fodder stocks that have been used up. The first meeting was held on 11 May with further regular meetings planned throughout the summer. The message to farmers to harvest sufficient fodder, including a buffer amount, is continuously being amplified across the sector through Teagasc advisers, private advisers, FAS advisers, media, co-ops and banks. I am very strongly committed to the work of this group and linked in by telephone with its most recent meeting which took place yesterday morning, to receive a first-hand update on progress so far and to urge no let up in activity until all issues around fodder security for next winter are fully addressed.

  A key information tool in this respect is a survey of the current level of fodder conservation on different farming systems in different regions. This information will help shape the direction and content of the next stage of work by the group. Today I am launching the first of two such Teagasc fodder surveys at Beef 2018, in the Grange research facility.

  Sustainability and resilience are not only about fodder but encompass the entire farming activity. In this respect the group is also focusing on best practices in matching livestock numbers with available fodder. Financial budgeting is a key part of fodder budgeting and indeed overall sustainability of the farming system and must be a routine aspect of all farming enterprises.

  While outside agencies can provide some support to farming communities in exceptional circumstances, farmers themselves must take appropriate actions to ensure their own resilience and sustainability into the future. Some actions are within the capacity of farmers themselves such as those being addressed by the Teagasc-led group, but others require the availability of specific tools to manage more complex threats, including risks posed by weather events. I have asked my officials to examine options both under the CAP 2020 proposals, but also under existing programmes, that might provide an appropriate risk management option for farmers in light of these increasingly regular weather-related events.

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan I thank the Minister, does the Senator have a supplementary question?

Senator Tim Lombard: Information on Tim Lombard Zoom on Tim Lombard I wish to thank the Minister for his very comprehensive answer to the question. I welcome that he is launching today in Grange the beef survey regarding fodder supplies, which is a very positive step.  Obviously, the dairy industry would need something similar to be launched and I am sure the Minister will announce that in due course. Those are the key issues. We need to balance our increasing livestock numbers with an increased volume of fodder, and have a buffer in place. These are very positive steps.

Deputy Michael Creed: Information on Michael Creed Zoom on Michael Creed I again thank Senator Lombard for raising this issue. As will be seen at events like that at Grange today, the farmers who are engaged in this process will obviously take the messages on board. The problem is farmers who are more difficult to reach, who are perhaps age profile challenged or in enterprises where the returns may not be as good. A key part of my message to this working group is to make sure that, through their networks, whether it is the farm organisations, the co-op structure, Teagasc or the private advisory service, we need to be specifically focused on those farmers who are harder to reach in order to make sure they are part of the message. They can also be part of the solution. There is a lower stocking density on some of these holdings so there may be capacity for better fodder conservation measures.

  We have all the stakeholders around the table and this is comprehensive. Sustainability is critical to our international image; it is also a key part of Food Wise 2025 and is one of the five pillars within it. We will be maintaining this initiative for as long as necessary so we can ensure that sustainability is an ingrained part of the operation of any individual farm, be it dairy, tillage, beef or otherwise, as that is very important.

Citizenship Applications

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I welcome the Minister of State, Deputy Mary Mitchell O'Connor. I assume she is taking this on behalf of the Minister for Justice and Equality. I know she cannot comment on specific cases, which is a given. However, I would like her to clarify, as best she can, what people should do when they find themselves in a situation such as the one I am about to outline.

  A constituent of mine had his application for naturalisation rejected in April of this year. His application, which he made in October 2016, was refused as a result of a motoring offence conviction. In the letter of rejection sent to him, it was stated, and this is the important part, "The onus is on each applicant to disclose in their application all appropriate information and evidence to help demonstrate that he or she satisfies the conditions for a certificate of naturalisation, including being of good character." This individual applied for naturalisation on 27 October 2016. His motoring conviction occurred on 23 March 2017.  Therefore, he could not have notified the Irish Naturalisation and Immigration Service, INIS, of his conviction at the time of application, as it did not exist. How can the INIS expect a person to inform it of a conviction that has not yet happened?

  This person, having lived in Cavan town for many years, was hoping to purchase a home and settle down with his family permanently. Naturally, he was awaiting the outcome of his application prior to purchasing a home. It has taken more than a year and a half for him to get this decision on his application. As the Minister of State can imagine, he is most disappointed.

  I do not want to make light of any conviction, no matter how minor it may be. This individual is known to me personally. He is a responsible and valued doctor in Cavan town, a man of integrity and, most certainly, good character. I am only too happy to provide references in that respect if necessary. I understand that he has submitted another application, in which he has outlined his motoring conviction and that he paid the €300 fine that accompanied it without delay. Will the Minister of State advise me and any person who finds himself or herself in this situation as to the next steps? Currently, there is no appeal process.

Minister of State at the Department of Education and Skills (Deputy Mary Mitchell O'Connor): Information on Mary Mitchell O'Connor Zoom on Mary Mitchell O'Connor I have taken notes on the person's position. I apologise for the absence of the Minister for Justice and Equality, Deputy Flanagan.

  I cannot comment on individual cases. However, I am happy to set out the position generally in respect of the processing of applications for citizenship. The Irish Nationality and Citizenship Act 1956, as amended, sets out the law governing Irish citizenship and distinguishes between the entitlement to Irish citizenship by birth and descent and the acquisition of Irish citizenship through the naturalisation process. Should a non-national apply for Irish citizenship through naturalisation, the applicant must fulfil certain statutory requirements, for example, residency and good character. The Minister has absolute discretion and may dispense with the statutory conditions in whole or in part in certain circumstances.

  It should be noted that it is incumbent on any applicant to disclose the fact and circumstances of any ongoing matter that the Minister should be made aware of in the context of a naturalisation application. Moreover, applicants are advised that reports are obtained from An Garda Síochána and other agencies relating to applications for naturalisation, and that any failure to disclose any matter at any stage of the process will adversely affect the application. The guidelines for the application form advise that, should adverse information come to light in the processing of that application, it will be taken into consideration. In the particular section of the application dealing with background, this notification is repeated, stressing that applicants should disclose information even if they do not consider it material to the application.

  It is a matter reserved exclusively for the Minister to determine what factors are to be taken into account in assessing whether an applicant for naturalisation is of good character. During the course of the processing of an application, information can come to attention from the various background checks that the applicant could reasonably have foreseen could be taken into consideration in the decision-making process. The Minister is not obliged to give advance notice of this information of which the applicant was already aware.  Decisions on naturalisation are taken having considered all of the available information. It is expected that applicants will comply fully with that process. It would not be appropriate to discuss the details of an individual's application on the floor of this House and the Minister, Deputy Flanagan, has asked me to inform Senator Wilson that his officials will speak with him on the matter.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I thank the Minister of State for the response. However, it does not rectify the situation regarding the rejection of an application on the basis that the individual had not included in the application information regarding convictions. The offence had not been committed at the time the application was submitted. It did not occur until some months after and the court case did not take place for some time after the event. To reject an application on the basis that a person did not provide information at the time of application is unjust, in my opinion.

  I welcome that the Minister's officials are willing to speak with me on the matter because I have been in communication with the Department and the Minister on this matter for a number of months and, to date, I had not received any response. That said, there should be an opportunity within the application process to allow individuals to notify the Department of issues arising, minor or major, subsequent to the submission of an application. I look forward to meeting the Minister's officials and to hopefully progressing the naturalisation application of this respected doctor and member of the community in Cavan.

Deputy Mary Mitchell O'Connor: Information on Mary Mitchell O'Connor Zoom on Mary Mitchell O'Connor It must be remembered that Irish citizenship is a great privilege and naturalisation is a privilege and not a right. The Minister is under no obligation to grant a certificate of naturalisation. As already stated, the onus is on the applicant to disclose in his or her application all appropriate information and evidence to demonstrate that he or she satisfies the conditions for a certificate of naturalisation, including character. It is incumbent on all applicants to reveal any information pertinent to the application, particularly where a case of dangerous driving is pending and a conviction for careless driving arises subsequently, prior to a decision on the application being made by the Minister. There is no appeals process under the legislation. However, applicants should be aware that they may reapply for the grant of a certificate of naturalisation at any time. When considering making such reapplication, the applicant should have due regard to the reasons for refusal given in the first instance and ensure that all relevant information is provided to the Minister for his consideration. All applications are examined individually and assessed on their own merits. The decision was arrived at following an individualised assessment of the application, having taken into consideration all relevant matters and information. This is particularly the case in this instance, where the adverse consideration is one of which the applicant was already aware.

  As I said, the Minister's officials are willing to meet the Senator on this issue.

Student Accommodation

Senator John O'Mahony: Information on John O'Mahony Zoom on John O'Mahony I thank the Minister of State, Deputy Mitchell O'Connor, for coming to the House to discuss the issue of third level student accommodation.  This issue usually arises at this time of the year as thousands of students finish their leaving certificate and look forward to going on to third level education. They will be looking for accommodation for the end of August and the beginning of September once they get their results. The problem is that there is an increasing number of students and a decreasing amount of accommodation. In addition, the cost of the accommodation available is increasing far above the rate allowed within pressure zones. I will give a specific example of that shortly.

  The Government's national student accommodation strategy of July 2017 showed there was excess demand for purpose built student accommodation of over 23,000. That will increase to over 25,000 by July 2019. The figures in that report outline what the problem is and how it is increasing. I met some student leaders in Galway last week. They said that in the middle of their examinations in May the cost of official student accommodation in the National University of Ireland Galway, NUIG, was increased by 18%. That confused me because Galway city is a rent pressure zone, which does not allow rent increases of more than 4% for accommodation. However, I was told that this does not apply to student accommodation. Perhaps the Minister will clarify that. Am I wrong in the assumption that it should apply everywhere? This will lead to students commuting long distances to get over this problem, sleeping on the couches of friends and mental health issues.

  I am seeking information on the developments at all universities and third level institutions. Is much extra student accommodation planned? Is much being built at present? If more student accommodation became available it would alleviate pressure on private rented accommodation for the general public. Would the solution be to give some incentives or grants to provide student accommodation on the campuses of our universities or colleges? That would in turn provide an income stream, help the overall development of those third level institutions and, perhaps, take some pressure off the Government to provide extra funding. I am merely passing on the concerns that were raised with me and I hope the Minister can reply to some of the questions I raised.

Deputy Mary Mitchell O'Connor: Information on Mary Mitchell O'Connor Zoom on Mary Mitchell O'Connor I have met and spoken with the students' unions in Dublin City University, DCU, and NUIG, where there were particular problems during the last term. To answer the Senator's question, student accommodation is being built. At the end of May last, 2,990 student bed spaces had been completed since the launch of the Rebuilding Ireland report. Nationally, there are 7,070 student bed spaces actively being built, and 2,354 will be available in the coming academic year and over 2,800 will be available in the following year. The potential pipeline of accommodation is also encouraging. Some 7,017 bed spaces have been granted planning permission. Therefore, we should meet, if not exceed, the Rebuilding Ireland target of 7,000 purpose built bed spaces by the end of 2019 and 21,000 bed spaces by the end of 2024.

  By increasing the available supply of student accommodation we can alleviate some of the pressure on the private rental market, which will in turn help to decrease price. In tandem with the Housing Finance Agency work has been carried out to assist in the provision of finance for higher education institutions.  Work has been carried out to assist in the provision of finance for higher education institutions. The Housing Finance Agency has implemented a streamlined application process to assist such institutions to access finance for the construction of purpose-built student accommodation. Provisions have also been made which allow applications for new, purpose-built student accommodation developments to move through the planning process at a faster pace.

  Alongside these initiatives, the Union of Students of Ireland and the Departments are working through the interdepartmental working group on student accommodation to promote and facilitate the provision of digs accommodation as an alternative to both purpose-built student accommodation and the general rental market for students. The 2018 campaign was launched on 25 June and will seek to increase the number of homeowners offering accommodation to students during academic term time.

  The recent rent increases in privately run, purpose-built student accommodation are a significant cause for concern. I have met my colleague, the Minister of State at the Department of Housing, Planning and Local Government, Deputy Damien English, to discuss this issue and we continue to work together to ensure that students are accommodated in the current housing market. Officials from the Departments of Education and Skills and Housing, Planning and Local Government are working in close co-operation to identify a solution that will provide the longevity sought from any intervention. This is a complex issue which may well necessitate legislation that is robust and does not give rise to unintended consequences. As such, it is necessary to ensure that any potential solution is robust enough to withstand scrutiny from many different perspectives.

Senator John O'Mahony: Information on John O'Mahony Zoom on John O'Mahony I thank the Minister of State for her comprehensive reply. I am glad to hear of the many initiatives that are being taken. The Minister of State referred to the rent increases in privately run, purpose-built student accommodation. Does the 4% limit on rent increases in rent pressure zones, RPZs, apply to such accommodation?

Deputy Mary Mitchell O'Connor: Information on Mary Mitchell O'Connor Zoom on Mary Mitchell O'Connor No.

Senator John O'Mahony: Information on John O'Mahony Zoom on John O'Mahony Obviously that is a loophole that must be closed off. I thank the Minister of State for that clarification. She outlined a number of welcome initiatives. It is important that we try to solve the student accommodation problem. Students experience considerable stress in the lead up to their exams and then they stress about results. They experience more stress when trying to find accommodation so anything that lightens their load is to be welcomed.

Acting Chairman (Senator Gerard P. Craughwell): Information on Gerard P. Craughwell Zoom on Gerard P. Craughwell Does the Minister of State wish to respond?

Deputy Mary Mitchell O'Connor: Information on Mary Mitchell O'Connor Zoom on Mary Mitchell O'Connor First, I reiterate that the RPZ restrictions do not apply to student accommodation. Second, we must make sure that any solution proposed is constitutional, robust, does not have any unintended consequences and can withstand scrutiny from different perspectives, including those of owners and students.

Schools Administration

Acting Chairman (Senator Gerard P. Craughwell): Information on Gerard P. Craughwell Zoom on Gerard P. Craughwell I welcome the Minister for Education and Skills, Deputy Bruton, to the House. The next Commencement matter is from Senator Gallagher.

Senator Robbie Gallagher: Information on Robbie Gallagher Zoom on Robbie Gallagher Ar dtús ba mhaith liom fáilte a chur roimh an Aire agus comhghairdeas a dhéanamh leis as ucht a bheith sa Teach inniu.

  I welcome the Minister for Education and Skills, Deputy Richard Bruton, and thank him for his presence in the Chamber this afternoon. I acknowledge that the Minister comes to the Seanad on an ongoing basis and that is very much appreciated.

  I commend and thank the teaching profession for their hard work and dedication on behalf of our children. We are very fortunate to have so many hard working and dedicated teachers. Today I am raising the current role of the school principal. In primary schools, the school principal is the manager or the captain of the ship. He or she is the leader of the school. Currently primary school principals are reaching out to the Department in respect of their ongoing workload and are seeking to have the allocation of release time increased in order to lessen the crippling workload they are undertaking and give them time to concentrate on their teaching responsibilities.

  As the Minister knows, 56% of school principals teach a class of children full time. In addition to their responsibility to teach in the classroom, they have the responsibility of running the school, which includes administration, staff, curriculum, pupils, pupils with special needs, the board of management, the parents and building and maintenance of the school. The teaching principal really is a multi-tasker.

  The situation has got to a point where it is no longer sustainable. Teaching principals are at crisis point. They are requesting the Minister to address this issue. A few miles over the Border from my constituency of Cavan-Monaghan teaching principals enjoy time out from the classroom one to two days a week to do administration work. They can plan to have a regular substitute teacher in place to allow for continuity for the benefit of the children in the classroom. That facility has been in operation north of the Border for the past ten years. Clearly I am here to plead with the Minister to look at the plight of school principals and the workload they currently have to undertake. It is unsustainable and in many cases it is affecting their mental well-being. It is at crisis point. Something needs to be done. I ask the Minister to review the current situation so that the role of school principals and their workload can be looked at with a view to finding workable solutions.

Acting Chairman (Senator Gerard P. Craughwell): Information on Gerard P. Craughwell Zoom on Gerard P. Craughwell I thank the Senator.

Minister for Education and Skills (Deputy Richard Bruton): Information on Richard Bruton Zoom on Richard Bruton I thank Senator Gallagher for his kind remarks and for postponing this debate so that I could be in the Chamber to take it. I absolutely agree with him that one of the most important things we can invest in is the quality of leadership in our schools. If one looks at what influences a child's success in school, one is the teacher he or she experiences and second is the quality of the leadership of the school. I am very keen to invest in upskilling and upgrading leadership. I have done a number of things already. In the past two budgets, I made provision for 3,000 additional posts of responsibility in our schools, both at primary and post-primary. At post-primary, 475 deputy principal positions were created. At primary and post-primary, 1,300 assistant principal posts were sanctioned. The other very significant improvement is the new circular on management that has been negotiated with the trade unions and now circulated. It provides for a much more flexible distributed system of management in our schools and allows for more flexible allocating of responsibilities and a more open system for identifying and reporting on what is done under that and the possibility for changing those responsibilities. That is a real breakthrough in the way we allocate posts.  I know the Senator's particular concern relates to small schools that have teaching principals. As my reply outlines, I made an arrangement this year to increase the number of days off that such principals have. The number of days off in each of the three size categories was increased by two days, three days and four days, respectively. As the reply sets out, I have added extra days so those who used to get 15, 20 or 25 days off now get 17, 23 or 29 days off, respectively. This reflects the need to provide more leadership resources and capacity.

  I am very keen to see more initiative devolved down to local level. The new model of resource teaching allocation, which we discussed in this House last week, puts much more trust in the local school to allocate how teaching resources are deployed across the range of children with special needs. It represents a move away from the very inflexible system that has been in place up to now.

  I have agreed to the creation of 50 cluster posts, which will be of benefit to small schools. This will allow groups of principals to combine their release days as a permanent position. The holder of that position will be able to fill in across the various schools. This will ensure principals do not have to contend with the hassle of trying to get substitute teachers on days which they have chosen to take as release days and allow them to plan the allocation of time in a much better way.

  It is worth mentioning that we are making a significant and specifically designed investment in the Centre for School Leadership. This year, 1,000 of the country's 4,000 principals will have opportunities to avail of coaching or mentoring or to pursue postgraduate study. We are putting money into enhancing the quantity and quality of leadership time.

  I gather from the text that has been provided that the specific request made by the Senator would cost €12 million if we were to accede to it. When these things are being put together as part of October's budget, we will have to look at the competing requests that are being made. As the Senator is probably aware, there are many other requests. We have debated them in this House and in the Dáil. We will have to make decisions on where priorities lie. As we have seen, it will be a fairly tight year for additional resources.

  We will not relent in our interest in investing in the quantity and quality of leadership. We are investing in the Centre for School Leadership and building clusters to enable schools to come together for substitution and to do things together, for example, in the digital and DEIS spheres. I know there are many DEIS schools in the Border counties, perhaps not in Monaghan but certainly in Donegal. We are trying to encourage individual school leaders to show more leadership by working with others to achieve new things.

  We are moving away from the much more rigid input-output way of allocating resources across our school budgeting. In my view, the conversation focuses far too much on pupil-teacher ratios, capitation grants and appointment rates. We need to look at what pushes on the experience of children. I think that is where the kind of good and well thought-out investment in leadership that we are trying to sponsor can make a big difference.

  I thank the Senator for his interest. I cannot accede to his specific request today, but I will examine it in the context of other things we might be able to do in this whole area.

Senator Robbie Gallagher: Information on Robbie Gallagher Zoom on Robbie Gallagher I thank the Minister for his comprehensive response. Some of its content was not to my liking. I ask the Minister to acknowledge that there is an issue. As he knows, school principals are engaged in an ongoing campaign. I am aware from my own experience that school principals are leaving their posts to return to mainstream teaching because, as I said in my initial contribution, the workload is affecting their well-being. I am sure the Minister is aware of that as well. This issue deserves attention. I welcome the Minister's confirmation that he is not closing the door to consultation with the stakeholders involved. I hope he will make a genuine attempt to find a resolution or a path forward to address this issue.

Deputy Richard Bruton: Information on Richard Bruton Zoom on Richard Bruton Like all other measures, we will have to weigh up its impact on outcomes. I am totally focused on outcomes. I wish to pursue measures that lead to children doing better. The Senator's request is quite substantial. As I stated, I granted two to four extra days this year. Senator Gallagher requests an additional seven to 19 days, which would be a significant step up from what we have been able to do. In considering such provision, we must assess the impact of €12 million being spent in this way compared to the impact it would have on the many other areas for which we receive similarly passionate demands for investment. The ultimate arbiter must be whether children will do better as a result. I acknowledge that it is an inexact science and one must make choices but I will consider each proposal with that objective in mind.

Message from Joint Committee

Acting Chairman (Senator Gerard Craughwell): The Joint Committee on Justice and Equality has completed its consideration of the following motion:

Proposal for a Directive of the European Parliament and of the Council laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences and repealing Council Decision 2000/642/JHA
a copy of which was laid before Seanad Éireann on 11 May 2018.

  Sitting suspended at 3.20 p.m. and resumed at 3.30 p.m.

Order of Business

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer The Order of Business is No. 1, motion regarding position of UK and Ireland in respect of the area of freedom, security and justice, back from committee, to be taken on the conclusion of the Order of Business without debate; No. 2, statements on the HIQA report on Tusla, to be taken at 4.45 p.m. and to conclude not later than 5.45 p.m., if not previously concluded, with the time allocated to group spokespersons not to exceed eight minutes, of which time can be shared, and the Minister to be given no less than four minutes to reply to the debate; No. 3, Mental Health (Amendment) Bill 2017 - message from the Dáil, to be taken at 5.45 p.m. and to conclude not later than 6.15 p.m.; and No. 4, Data Sharing and Governance Bill 2018 - Committee Stage, to be taken on conclusion of No. 3 and to be adjourned not later than 8 p.m. if not previously concluded.

Senator Catherine Ardagh: Information on Catherine Ardagh Zoom on Catherine Ardagh Today I would like to raise the very worrying reports that the HSE may record a deficit of €200 million or €300 million for the first half of the year without any plan or intimation of a plan in place to reverse that. In 2017, the HSE recorded a net operating deficit of €140 million, yet last week, which was the anniversary of the Taoiseach, Deputy Leo Varadker's, first year in office he made a significant virtue of the fact that he is a master of balancing budgets. This does not seem to be the case.

  This matter has a very serious consequences, especially for ordinary people who rely on home help and those in need of mental health services. There has been a reduction in home help hours and a serious crisis in mental health services, especially in the CAMHS sector. These services have been left to languish with little or no support. It is also shocking that the former secretary general, Tony O'Brien, warned the Minister privately that the deficit could reach €800 million for the year, something which was not acted on. This is horrendous. The budget deficit increases have been attributed to older people presenting to hospitals. In a general election manifesto in 2011, the Government ran on a platform of building primary care centres across the country. In Drimnagh in my constituency, we were promised a primary care centre yet to date no sod has been turned and planning is about to run out. What is the Minister's plan in regard to this matter? I call on him to come to the House so that we can ask him how he intends to reverse the deficit and what he intends to do about the roll-out of primary care centres nationally and, more specifically, in Drimnagh.

Senator Victor Boyhan: Information on Victor Boyhan Zoom on Victor Boyhan I wish to raise three issues. There was much discussion in the media over the weekend about the Council of Europe and the anti-corruption body known as GRECO, the Group of States against Corruption. I do not want to pre-empt what I hope will be a lively and engaging debate on the Judicial Appointments Commission Bill next week, but suffice to say it is reported in the press that the Chief Justice, Frank Clarke, and other judges have taken the unusual step of writing to GRECO. They raised a number of particularly serious issues in respect of the perceived appointment of judges to upper and higher courts. Could the Leader ascertain from the Minister whether he is committed to publishing the current GRECO report? If he is, can he make it available in advance of the debate on the Judicial Appointments Commission Bill next week?

  I would like to take this opportunity to congratulate the new Garda Commissioner designate, the PSNI deputy chief constable, Drew Harris, on his appointment. It is a very imaginative appointment. I wish him well. I wish to take this opportunity to congratulate Dónall Ó Cualáin on what has been a steady hand in terms of An Garda Síochána. He did not have an easy task, but it is worth acknowledging his work.

  I thank the Leader for arranging for a debate on the summer economic statement. It will be important.

Senator Rose Conway-Walsh: Information on Rose Conway-Walsh Zoom on Rose Conway-Walsh I want to express my solidarity with and send my best wishes to the family of Pat Finucane who today launched a bid in the UK Supreme Court in London to hold a public inquiry into his murder. The need for an inquiry was agreed at Weston Park in 2001, but the need for truth and disclosure is widely accepted and needs all sides to be supportive of these efforts. Some of the documentation from the British Government has been quoted. Its exhaustive previous examinations have laid bare some very uncomfortable truths. Paid state agents were directly involved in the killing, including the only man ever convicted of involvement in it. Lord Stevens's conclusions paint a picture of a system of agent running by the RUC special branch and the army. I want to wish the Finucane family well. Families should not have to spend decades in courtrooms in order to access the truth.   Where is the Autism Spectrum Disorder Bill 2017? When will it come back before us? While it is not a panacea for the issues surrounding autism and the supports and services that are needed, at least it will go some way to addressing some of the issues through amendments. It is a matter of deep concern that this Government chooses to propose a rainy day fund when I hear from parents all over my county who cannot get respite, occupational therapy, speech and language therapy and all the services that children and adults with autism should be entitled to as of right. It is disgraceful. There was a meeting last night and I commend those in Belcarra in Castlebar who organised it. We cannot think of rainy day funds until the most vulnerable people and families in our State are looked after.

  People should imagine, while they will leave here in a few weeks' time, and may work in their areas or whatever, what it is like for a carer looking after up to three children with autism to be told he or she cannot have one, two or three days off in the year. It is not right and it must be fixed. Carers need respite as well. They cannot do their job. They cannot function properly. They are working 24-7, 365 days a year and they need a break. They must be prioritised before any rainy day fund. We saw what was done with the last rainy day fund, the pension reserve fund, that was hived off to the bankers. It is wrong and it must be re-examined.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik I welcome the Government's announcement today that it will bring forward measures to address the gender pay gap. I very much welcome anything that will bring that forward. However, it is a pity, and I said this to the Minister for Justice and Equality, that the Government did not see fit to use the existing legislation, the Private Members' Bill, that we introduced in this House, which received cross-party support and has passed Second and Committee Stages. The Government could have implemented gender pay gap disclosure measures more speedily through proposing amendments to the Labour Party Bill, which we would have been quite happy to accept and debate in the normal way.

  My concern is that introducing a new Government Bill will inevitably delay the introduction of these important measures, which we so badly need, to ensure that we can address the existing gender pay gaps. Would the Leader please pass the message to the Minister that we are concerned that the proposed Bill will bypass legislative provisions that have already been debated in the Seanad? If the Government is going to introduce its Bill it should at the very least be started in the Seanad, given that we have already had a good deal of considered debate on this issue.

  I echo Senator Boyhan's concerns about the Judicial Appointments Commission Bill 2017, which was to go to Committee Stage this week. I have tabled over 20 amendments for the Labour Party to make to that Bill but I understand it is not going ahead. Could the Leader let us know whether Committee Stage can proceed at this point, given that we have received reports that the Group of States against Corruption, GRECO, has such significant concerns about some key measures proposed in the Bill, in particular that the provisions around the new judicial appointments commission are not in line with European standards and that a more substantial participation is required. GRECO has urged the Government to reconsider the provisions in order to limit the potential risks of improper influence from the Executive and to ensure that any measures introduced are taken in co-operation with judicial authorities.

  Given these concerns the Minister should publish the GRECO report and, furthermore, we should be given some indication of how the Government proposes to address these concerns in its amendments which we have not yet seen. We did debate the Bill on Second Stage last week without knowing its proposed final shape. It is most unsatisfactory and many of us expressed concerns about that last week. While we are mindful of the need for reform of judicial appointment measures, this Bill has been, in the words of the Attorney General, a "dog's dinner" to date and the reports about the GRECO report raise serious additional concerns about the new measures.  Finally, I join with others in wishing the new Garda Commissioner, Drew Harris, well. He has a challenging role to fill in terms of ensuring policing reform.

Senator Anthony Lawlor: Information on Anthony Lawlor Zoom on Anthony Lawlor Like other speakers, I wish the new Garda Commissioner, Drew Harris, all the best. It is a difficult task to fulfil. I know he has come from a difficult area. I welcome the decision to take someone from outside this jurisdiction to head up An Garda Síochána.

  I wish to raise an issue relating to the sports capital programme. I am delighted that €40 million will be allocated but I would like the Leader to ask the Minister for Transport, Tourism and Sport to come to the House for a discussion on it. There are many clubs that want to find out when this process will start. They have also had difficulties with applications in the past. Why have some clubs and organisations failed when it comes to getting the funding for which they have applied? I would welcome it if the Minister could come in here and give us a briefing so that all clubs can hear about it so that when they apply for funding, they will have all their ducks in a row.

  I wish to comment on a disgraceful decision by the central competitions control committee, CCCC, of the GAA yesterday regarding the Kildare-Mayo football match. Having watched the draw earlier that morning, the Kildare players were expecting to play the match in Newbridge. What took place showed a total disregard for both players, management and supporters of Kildare GAA and Mayo GAA, which would have expected the game to take place in Newbridge. The CCCC has gone against its own rules. If one sets down rules and regulations, one should at least follow them but this is typical of the GAA hierarchy. It does not have any regard for the people at grassroots level. As far as I am concerned, it is Newbridge or nowhere.

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan The ball is certainly in but I do not think that is a matter for the Order of Business or the Leader.

Senator Gerry Horkan: Information on Gerry Horkan Zoom on Gerry Horkan We celebrated 60 years of UN peacekeeping at the weekend and acknowledged and remembered the 85 members of the armed forces and one Garda who lost their lives on UN peacekeeping service on behalf of Ireland. It was a lovely ceremony in Dublin Castle. Indeed, there were two very nice ceremonies in Dublin Castle on Sunday. The other ceremony related to the decriminalisation of homosexuality. There were lots of references to JFK and our current Taoiseach but a Fianna Fáil Government was in power between 1957 and 1959 when it all started in 1958 and I think it would be nice if when referring to it, the Government did acknowledge that a Fianna Fáil Government was in power at the time.

  I want to raise another point relating to policing and justice generally. I wish the new Garda Commissioner well. I also acknowledge that 22 years ago today, Veronica Guerin lost her life in the fight against crime and reporting crime. If she was here today, she would say that there is a lot more work to be done. I wish the new Garda Commissioner well but I do want to acknowledge that time. I remember the day very well. It happened on Boot Road in Clondalkin. I would like to remember that.

  I commend the Minister for Justice and Equality for the comments he made at the weekend about cycling. He responded to a tweet. I cycled in here today. I regularly cycle in here. I am lucky enough to live close enough that I can do so but it is not all that safe sometimes. I do support the Minister and others who are saying that it is important that the cycle lanes that are there are available for cyclists and that they are not full of cars parked, lorries delivering or buses pulling in and so on. The Minister has said he will meet with the Minister for Housing, Planning and Local Government and the Minister for Transport, Tourism and Sport, who is far more interested in judges than he is in transport, to deal with this matter. The Minister for Justice and Equality seems to be the one who is most interested in cycling infrastructure, far more than the Minister for Transport, Tourism and Sport. Perhaps he is the one we should bring in to talk about cycling, road infrastructure and the enforcement of road policing. I would appreciate it if the Leader could organise that debate.

Senator James Reilly: Information on Dr. James Reilly Zoom on Dr. James Reilly I wish to raise an issue I have raised several times here in the House. It concerns the lack of guidelines relating to solar farms. At a time when we are facing such huge fines from Europe for our carbon emissions, clearly solar farms would be a huge addition to reducing that bill yet we do not have any national guidelines and local authorities are refusing planning permission for these farms on that basis.  People are having to go to extra expense to go to An Bord Pleanála. I would like the Minister, Deputy Naughten, with whom this lies more so than the Minister, Deputy Murphy, to come to the House and tell us where he is with his plans. The other interest I have in this regard is in all those hay sheds around the country that could be covered in photovoltaic units. An initiative could be put in place for that.

  Another national issue is childhood obesity and the fact that almost one third of our children are either overweight or obese. The Minister for Health, Deputy Harris, promoted an initiative in his own area, Wicklow, of a no-fry zone near schools, something which I fully support. Local authorities need guidelines on this from the Minister, Deputy Eoghan Murphy, through the Department of Health but it will be a local authority issue. The local authorities and developers need guidance. We currently have a situation where there is a brand new primary school in Skerries with 365 children and there are proposals to build a huge fast food outlet beside it. The initial proposal was for an all-night drive-through with all sorts of traffic issues but, more recently, that has been dropped. It is a disproportionate development in a small local shopping centre. Our children need to be protected from this. We are possibly going to be the first generation that buries the generation behind us as they develop diabetes and all the complications that go with it.

  I echo what other Senators said about the Autism Spectrum Disorder Bill. I would also like to know where it is. I have been seeking a meeting about this issue with the Minister for the last three weeks. I hope to meet with him soon. This House passed that Bill in its entirety, unopposed, unanimously and there are children and parents with autism who are struggling on a day-to-day basis. The Bill is by no means a panacea or the end of the beginning. It is the beginning of the beginning for them, in having a process to put in place a national strategy which will give them the help that they need to reach the potential that they have to make their contribution to our society. Over the centuries, people with autism have made major breakthroughs and discoveries.

  I wish the new Garda Commissioner well. He has, as others have put it euphemistically, a serious challenge ahead.

Senator Marie-Louise O'Donnell: Information on Marie-Louise O'Donnell Zoom on Marie-Louise O'Donnell I propose an amendment to the Order of Business because I would like the Minister, Deputy Naughten, to come to the House. If he cannot come in himself, he can send in the report about community banking which involved, whether it argued for or against it, an argument for the Sparkassen German bank and Kiwibank. I am a great believer in community banking and not capitulating to the pillar banks. The latter have people earning €30,000 to €70,000 unable to save €50,000 to get a room to live in, let alone a house. They are on every campus in Ireland, costing postgraduates fortunes to study, and putting up their interest rates when they qualify. I could start on the banks and would probably have to have medication because of their behaviour. There is capitulation to the pillar banks. I am not afraid of them and do not think we should be afraid of them. We saw it rejuvenating itself with Mr. Drumm, who was not part of a high street bank but who was certainly part of the actions of the bank that led to many people looking at the USC on top of everything they earn. I would like to propose an amendment to the Order of Business, which I think will be seconded by Senator Wilson.

  With regard to Committee Stage of the Judicial Appointments Commission Bill, Senator Bacik is correct and I would like to know what has happened to it. We were all speaking in generalities last week because we did not know what the Government's amendments were or what our own would be, although I know Senator Bacik had loads and I had plenty myself. I would like to find out about that.

  With regard to cycling and cars on footpaths, the Minister needs to look at the fact that we cannot walk on our footpaths because cars are now taking precedence over pedestrians.  They are not only half parked, they are entirely parked up on paths. I would start with the walkers, people who may be disabled or in wheelchairs or the blind, who cannot walk in their own city because of the abuse of cars. That is my amendment to the Order of Business. Members should not think I will take "No" for an answer. I would like the Senators to stay with me on this. Where is this report? Why can I not see it? It was presented at Cabinet and I would like to have a look at it. If the Minister cannot come in and organise it, I will take a copy of it, read it and make up my mind, but it has to be done.

Senator Máire Devine: Information on Máire Devine Zoom on Máire Devine I support Senator O'Donnell in that regard.

  I want to raise the issue of the spend on agency workers in the HSE. Last year almost €1 million per day was spent on agency workers such as locum doctors, consultants and, in particular, nurses. Of the €15 million that was put in to boost the mental health budget, from January to March of this year, €13 million of it was spent on agency staff. This means there is €2 million left and the first three months of the year are gone, and there is a projection for something like €80 million more for agency staff for the remainder of the year.

  On top of that, the nursing unions have just put out a report on assaults on HSE staff. We know that fewer staff, chaotic working conditions and the use of agency staff, with the resultant lack of continuity of care, give rise to increasing assaults. Between 2008 and 2018 there were more than 10,000 serious assaults on staff, 70% of them on nursing staff. I know these nursing staff. They have had their eyes gouged out, they have lost testicles and they have lost their own physical, never mind emotional, well-being. They are languishing at home often in difficult circumstances, including marriage breakdowns, because of the impact chaotic working conditions have on them.

  I do not know who would want to sign up to working like this. Recruitment and retention is abysmal. We need to address the staggering sums of money going to private agencies that are putting in locum staff who have less responsibility than permanent staff.

Senator Frank Feighan: Information on Frank Feighan Zoom on Frank Feighan I would like to propose a vote of congratulations to Arlene Foster, the leader of the DUP, and also to the GAA family from Fermanagh and Donegal for the reception they gave her. It was a wonderful gesture to attend the Ulster final and it sets out an agenda that, hopefully, things are changing in Northern Ireland. That should not go unnoticed, especially given the Taoiseach's visit to east Belfast and the reception he got from the Orange Order and its supporters in east Belfast, and also the reception he got in west Belfast at the opening of Féile. In addition, in recent weeks Prince Charles and Camilla, Duchess of Cornwall, were in Cork, the so-called rebel county. This island is changing and that is very much to be welcomed. If somebody makes a gesture, I believe we should be strong enough and brave enough to stand up in this Seanad and welcome it. That is very important.

  I would also like to welcome the appointment of PSNI deputy chief constable, Drew Harris, as the new Garda Commissioner. Again, this is setting a different tone for the Garda Síochána. My grandfather was among the first members of the Garda Síochána. In this House and in politics, we should challenge the Garda Síochána but we are not here to undermine its good name. I hope that, as politicians, we are balanced in how we talk about members of the Garda Síochána. They are the people who have held the line in very difficult times since the foundation of the State. I wish Drew Harris every success in the future.

  One aspect I have raised in the House is the Commonwealth Games, which is due to be held in Northern Ireland in 2021, and which could be another achievement of cross-Border co-operation.  For example, there could have been cross-Border rowing on Lough Rynn in Leitrim. Given that the Northern Ireland Assembly has not sat since January 2017 and no financial package has been agreed, Northern Ireland has lost the Commonwealth Games. That is a major loss. I hope that all parties can work together to get Stormont up and running. The sooner that happens, the better it will be, not just for Northern Ireland, but the island of Ireland.

  To reiterate, Ms Arlene Foster turning up at the Ulster final was a major change in mindset in our country.

Senator Kevin Humphreys: Information on Kevin Humphreys Zoom on Kevin Humphreys I echo Senator Feighan's welcome for the gestures and movement, small though they may be, but we must get past gesture politics because we need the Northern Ireland Assembly up and running again. Brexit is coming down the tunnel like an express train. Politicians want to be taken seriously, but politics is about compromise, so we need the assembly to be up and running and people to take their seats in the House of Commons to ensure that there is a good deal for the island of Ireland. Not taking a seat is unacceptable. We are past the day of denying that mandate.

  I wish to discuss the issue of a dedicated transport police force and the effects of assaults on public sector workers and public transport. We are past the day of using private security firms, which have no right to detain people at stations or make arrests. Train drivers, DART workers and other public sector workers are being assaulted week in, week out. If we want the general public to feel safe and secure on public transport, there needs to be a dedicated police force on that transport, be it a train going from Cork to Dublin or a DART going from Howth to the city centre. Many other areas have such forces, for example, London. Will the Leader invite the Minister for Transport, Tourism and Sport, Deputy Ross, to the House to debate this issue at some stage? It would be useful.

Senator Gerry Horkan: Information on Gerry Horkan Zoom on Gerry Horkan The Minister for Justice and Equality, Deputy Flanagan, might be more useful.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I second Senator Marie-Louise O'Donnell's amendment to the Order of Business. She was correct. If a report has been presented to the Cabinet, then there is no reason for it not to be published and made available to us, other than its contents not suiting the Government's agenda. The Minister should answer that request.

  I join Senator Feighan in congratulating the former First Minister of Northern Ireland, Ms Arlene Foster. Her attendance at the Ulster final between her native Fermanagh and Donegal in Clones last Sunday was a significant gesture. We look forward to seeing her attending future GAA events.

  I welcome today's announcement by the Government of the appointment of a new Garda Commissioner, a fellow Ulsterman, Mr. Drew Harris. He is a professional policeman. His father served as a member of the RUC until his tragic death. He came up through the Troubles and the RUC as it existed at the time and was there when it was reformed into the Police Service of Northern Ireland. He will do an excellent job during his five-year term as Commissioner of An Garda Síochána.

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan If we are done, then I will call on the Leader to-----

Senator Marie-Louise O'Donnell: Information on Marie-Louise O'Donnell Zoom on Marie-Louise O'Donnell I could speak again on the amendment.

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan Unfortunately, the rules do not allow for that, as the Senator well knows. The Leader to respond.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer I thank the 12 Senators for their contributions. Beginning with Senator Ardagh's points, the Government has significantly increased the health budget by €1.7 billion since 2013.  I find the Senator's remarks amusing given the record of her beloved party leader and Mary Harney in the Department of Health. They rarely, if ever, balanced the books in that Department. I recall we had supplementary budgets year-on-year at a time when the country had plenty of money. I agree with the Senator that it is important that we invest and that we maintain a service that will deliver outcomes for patients. This is about improving access, building capacity, investing in physical infrastructure and also recruitment, a new general practitioner contract and the delivery of Sláintecare, which will be transformational in reforming our health system.

  I remind Senator Ardagh that since the Fine Gael Party came into government, in the first instance with the Labour Party and now as a minority Government, 120 primary care centres have been opened, 12 of them this year, with seven more to come. The Government is investing and reinvesting in our health service, be that in terms of recruitment, physical infrastructure or otherwise, and it will continue its record of investing in our health care system.

  Senators Boyhan, Bacik, Lawlor, Horkan, O'Reilly and Feighan welcomed the appointment today of the new Garda Commissioner, Drew Harris. I join Members of the House in wishing him well in his appointment. He comes with a 35-year record of policing service in the North as Deputy Chief Constable of the PSNI. This is an external appointment from an international selection process at a time when we need to see major reform of An Garda Síochána and the culture therein changed. In tandem with this appointment the Government has committed to investment in An Garda Síochána in terms of recruitment and the provision of new equipment. I thank the acting Garda Commissioner, Dónall Ó Cualáin, for his steady hand in the interim. This is the third Garda Commissioner since 2004. I hope Mr. Harris's five-year appointment will be productive. As Leader of the House, I wish him every success.

  Senators Boyhan, Bacik and Marie-Louise O'Donnell raised the issue of the Judicial Appointments Commission Bill in the context of the GRECO report. The Bill will be returned to the schedule next week. It was withdrawn this week to allow members to submit amendments. I will engage further with Senator Bacik on the matter. I hope the Minister can engage on the Bill with Members on all sides of the House.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik It would be helpful if we had sight of the Government amendments.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer That is not within my gift. I will communicate the desire of Senators to have sight of the Government amendments.

  Senator Rose Conway-Walsh raised the Pat Finucane case, which is before the UK Supreme Court today. I wish the Finucane family well in terms of the public inquiry. They need justice and I hope they will get it.

  I join Senators Reilly and Conway-Walsh in hoping the Bill sponsored by Senator Reilly, the Autism Spectrum Disorder Bill 2017, which is currently with the Department, will come before the House soon. I share the view of Senator Conway-Walsh that we need continued investment in primary care in tandem with investment in respite care. Respite care is an important piece of the health budget. I concur that funding should be made available to families who are carers. There is a significant deficit in funding for respite care that needs to be filled.  As Senator Conway-Walsh said, members of families are 24-7 carers for loved ones for 365 days of the year, in many cases in very difficult and trying conditions. There must be continuing investment in respite care. However, I disagree with Senator Conway-Walsh on the rainy day fund. We need such a fund. Otherwise the high tax Sinn Féin model of economics will again bankrupt the country. We saw what happened in the past when there was recklessness in our economy and we cannot return to that. It is important, however, that as the economy grows stronger we reinvest in people and in the delivery of services and infrastructure for people.

  Senator Bacik also raised the issue of the gender pay gap. Today the Cabinet approved the legislation compelling companies to deal with the gender pay gap. I hope to work with the Senator in passing a Bill that will eliminate that deficit and repeal that unacceptable gap. I am not sure where that Bill will be introduced but I hope it will be in this House because, as the Senator said, we have done a great deal of work on the matter. The Government is committed to tackling the gender pay gap and we all welcome that Bill and hope it will not be delayed.

  Senator Lawlor raised the sports capital fund and the €40 million that will be announced soon by the Minister of State, Deputy Griffin. It was a Fine Gael-led Government that reopened the sports capital grant programme.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson It closed it.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer We did not. Fianna Fáil closed it.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson No.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer No, Fianna Fáil closed it.

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan The Senators can have a chat about it after the Order of Business.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer I assure my colleague and friend, Senator Wilson, that it was not the Fine Gael-Labour Party Government that closed it.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson It was.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer That Government reopened it.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson We created it.

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan Do not let the good weather affect you.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer We had a number of schemes. I know Senator Wilson is committed to benefitting local clubs and community and sporting organisations.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson Agreed.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer It is important that the sports capital grant continues for the benefit of all communities, north, south, east and west.

  I will not stray into the internal CCCC issue in the GAA regarding Kildare and Mayo. However, I hope a game of football will be played on Saturday night and that common sense will prevail.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson Could the Leader intervene?

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer I join Senator Horkan in congratulating all involved in the celebration of the 60th anniversary of involvement in UN peacekeeping last Sunday and the decriminalisation commemoration in Dublin Castle. He is right to recognise those who lost their lives in the service of the State. We remember the service men and women who died in honour with our Defence Forces when protecting people in many different parts of the world. I also join him in calling on those who use our cycle lanes to remember that they are for cyclists and should only be for them. I agree that the comments of the Minister, Deputy Flanagan, are positive.

  Equally, Senator Marie-Louise O'Donnell referred to the number of people who are parking on footpaths and impeding not just pedestrians but also wheelchair users and elderly people, who experience difficulty. It is illegal to park on the footpath and the Garda Síochána should be able to use its powers.

Senator Marie-Louise O'Donnell: Information on Marie-Louise O'Donnell Zoom on Marie-Louise O'Donnell I might as well be talking to the footpath every day.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer I will be happy to invite the Minister for Transport, Tourism and Sport, Deputy Ross, to the House to discuss public transport and other matters.

Senator Gerry Horkan: Information on Gerry Horkan Zoom on Gerry Horkan And cycle lanes.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer Yes. Senator Reilly raised the lack of guidelines for solar farms. I will be happy to arrange a debate on that with the Minister. He rightly spoke about the growing issue we face with obesity given that almost one third of our young people are obese. It is a startling statistic. As he said, the knock-on diseases are beginning to come to the fore. I will be happy to invite the Minister to the House to discuss that.  Senator Marie-Louise O'Donnell will appreciate that I do not have a magic wand. I have not been able to get an answer from the Minister's office as to whether he is available this evening but if the Senator will indulge me, I will endeavour to have him come to the House tomorrow or on Thursday. I have been in communication with the Senator since she first raised the matter in the House last week. I certainly want to see the report on community banking debated in this House and I gave the Senator a commitment to that effect. I cannot give a definitive answer with regard to the Minister's availability but if Senator O'Donnell indulges and trusts me, I will endeavour to secure the Minister's presence in the House later this week. Otherwise, I will have to oppose her proposed amendment to the Order of Business which I do not want to do because the request being made is reasonable.

  I agree with Senator Devine that the number of assaults on staff working in hospitals is unacceptable. I worked in a hospital previously and have family members who are nurses and I agree that any attack is one too many. Senator Devine rightly drew attention to some of the dreadful injuries inflicted on nurses, care assistants and other members of hospital staff. The safety of all of those who work in our health system is of paramount importance. The Government is committed to recruiting additional nurses, care assistants and other front-line health service staff. Staff numbers are growing every year but the important point made by the Senator is that we must ensure that the physical safety of all staff is assured. The HSE has a duty of care to its staff and a responsibility to guarantee their safety in the workplace. A national health and safety strategy has been put in place by the HSE but we must continue to highlight this issue.

  The issue of agency staff in our health system arises regularly in these Houses. It was raised at meetings of the Oireachtas Joint Committee on Health, of which I was once Chairman, and it has been raised by Senator Colm Burke in this House. The amount of money being spent on agency staff is frightening, especially in the context of the value for money that could be obtained if we invested that money in the retention and recruitment of permanent staff, which would be much better. We must accept that we will always have some agency staff in our health system but the growth in the numbers of such staff is not acceptable. I am happy to invite the Minister for Health, Deputy Harris, to the House to discuss that matter.

  I join Senators Feighan and Wilson in congratulating Ms Arlene Foster for travelling to the Ulster football final at the weekend, which was a positive gesture. I heard what Senator Humphreys said but would argue that gestures are important. It would have been unthinkable 25 years ago for the leader of the DUP to travel to an Ulster football final and to sit with a Cabinet Minister and a Chief Whip to watch the game, so Ms Foster's gesture is positive in that regard. As Senators Humphreys and Feighan pointed out, it is absolutely imperative that the institutions in Stormont are back up and running as soon as possible. It is unacceptable that no responsibility is being taken by politicians in the North and that there is no direct rule at Stormont. It is incumbent upon Sinn Féin and the DUP in particular to re-engage in talks and to re-establish a power-sharing Government in Northern Ireland. I agree with the point made by Senator Feighan about the Commonwealth Games representing a missed opportunity.

  Senator Humphreys also argued for a dedicated transport police and the point he made in that regard certainly has merit in the context of last week's report of increases in attacks on both commuters and public transport staff. The Senator called for a debate on the matter and I am happy to invite the Minister for Transport, Tourism and Sport, Deputy Ross, to the House for that. Senator Wilson seconded the proposed amendment by Senator Marie-Louise O'Donnell. As I have said, I will try to arrange for the Minister to come to the House tomorrow or on Thursday and ask that the amendment be withdrawn. If not, I will have to oppose it, which I am loath to do.

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan Senator Marie-Louise O'Donnell has proposed an amendment to the Order of Business, "That a debate with the Minister for Communications, Climate Action and Environment on the publication of a report on the introduction of community banking be taken today." Is the amendment being pressed?

Senator Marie-Louise O'Donnell: Information on Marie-Louise O'Donnell Zoom on Marie-Louise O'Donnell No, not if I get a guarantee that the debate will take place this week.  We will have a major gap because the Judicial Appointments Commission Bill will not come to the House. There might not be a gap in the diary of the Minister for Communications, Climate Action and Environment, Deputy Naughten. I will not press the amendment if we can deal with it this week. I want to get an answer. I accept what the Leader says.

An Leas-Chathaoirleach: Information on Paul Coghlan Zoom on Paul Coghlan Is the amendment being withdrawn?

Senator Marie-Louise O'Donnell: Information on Marie-Louise O'Donnell Zoom on Marie-Louise O'Donnell I will withdraw it if I get a commitment. I accept what the Leader is saying but I need a genuine commitment that this is not going to be pushed out week after week.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer I think the Senator understands that I have never tried to do that. I will endeavour to do so. I have not had a response from the Minister's office but I will work with Senator Marie-Louise O'Donnell to ensure we have that debate this week.

Senator Marie-Louise O'Donnell: Information on Marie-Louise O'Donnell Zoom on Marie-Louise O'Donnell I accept that.

  Amendment, by leave, withdrawn.

  Order of Business agreed to.

EU Directive on Financial and Other Information: Motion

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer I move:

That Seanad Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:
Proposal for a Directive of the European Parliament and of the Council laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences and repealing Council Decision 2000/642/JHA,
a copy of which was laid before Seanad Éireann on 11 May, 2018.”

  Question put and agreed to.

  Sitting suspended at 4.25 p.m. and resumed at 4.45 p.m.

HIQA Report on Tusla: Statements

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson I welcome to the House, and to familiar territory, the Minister for Children and Youth Affairs, Deputy Katherine Zappone.

Minister for Children and Youth Affairs (Deputy Katherine Zappone): Information on Katherine Zappone Zoom on Katherine Zappone I am grateful for the opportunity to discuss the report into Tusla which was carried out at my direction by the Health Information and Quality Authority, HIQA. At the outset I wish to thank HIQA for its report, which is frank, clear and helpful. Through this report it has identified how we can provide better services for our children. Children are, of course, at the centre of what we do and they will be at the centre of our response.

  Although HIQA has identified deficits in the child protection services provided by Tusla, it is important to say that the report found children at immediate risk received an appropriate and timely service. Following the revelation last year that Tusla had sent a notification containing a false allegation of child sexual abuse against Sergeant Maurice McCabe to An Garda Síochána, I became concerned that there may be more systemic issues which needed to be addressed by the Child and Family Agency.

  In regard to Sergeant McCabe, I would like to say that I welcome the restating of Tusla’s apology to him. I know that the events that triggered this statutory investigation were devastating for him and his family. This investigation did not examine issues pertaining to his case as it is included in the work of the disclosures tribunal. Not for the first time, Sergeant Maurice McCabe, at a personal cost to himself, has done a service to the State.

  I am committed to implementing all the recommendations from this report in full. Intensive work is already under way in Tusla and in my Department to ensure this happens. This commitment is shared by the chair, board and CEO of Tusla. When this is done, I believe Tusla will be better equipped to carry out the child protection functions that are so necessary in our country today.

  We knew from previous work done by HIQA that issues were identified in inspection reports on foster care and the child welfare and protection services. I am conscious that considerable public funding has been made available to enable the modernisation and transformation strategy that is under way in Tusla. I need to ensure that these public funds are having the impact they are intended to have.

  In response to my direction in March last year to HIQA to carry out a statutory investigation into Tusla’s national practices in the handling of referrals of allegations of sexual abuse which involve adults of concern, HIQA has produced a report which clearly captures the progress and problems that were evident at the time the investigation took place.  In particular HIQA finds that child sexual abuse referrals, including retrospective allegations, were not always managed in a timely or effective way from the point of referral to the point of closure. There was a variation in the level of adherence to Tusla policies and procedures and standard business processes for referrals. There was no nationally agreed arrangement in place to ensure effective and consistent information sharing between Tusla and An Garda Síochána. There were gaps in resource planning and critical social work posts remained vacant to varying degrees across the service areas.

  HIQA's point about needing an innovative approach to workforce planning is well made. We are coming from a position of low numbers of social workers per head of population in all areas, including child protection. However, the report from HIQA states clearly that, "Tusla has to manage the same workforce challenges faced by other jurisdictions [...] and avoid an organisational mind-set that sees such problems as insurmountable due to factors outside of its control". This will require a deeper examination of work practices and roles to make sure the teams are working to the greatest effect on children's lives. Front-line teams need additional support and ongoing training to enable them to use their considerable skills in the most challenging of work and in a very high risk environment. The recommendations identified specific actions for Tusla to act on directly. They also identified areas for engagement by my Department with Tusla and HIQA to support these and to look at the overall regulatory environment.

  To move forward, I immediately appointed Dr. Moling Ryan as an independent chair to implement the recommendation on setting up the quality assurance advisory oversight group. The work of this group will examine the links between the action plan with Tusla's five-year child welfare and protection strategy and its three-year corporate plan. In addition, my officials will engage with HIQA as to the kind of regulatory framework for child welfare and protection services that would be suitable for the Irish context. HIQA is our expert in the social services regulatory field and I welcome its involvement. I had a very productive meeting with the CEO of Tusla this morning. I will be meeting the board of Tusla shortly to discuss the short and long-term implications of the report's findings and to discuss how to urgently drive the improvements that are needed.

  Turning for a moment to the report itself, it says that it was evident that there had been considerable financial investment by the Government. HIQA states that there is a clear strategic direction for Tusla and its services. This direction is not fully incorporated into practices at local level. In addition, the report is clear that the front-line teams are dedicated to the welfare and protection of children, and engaged positively with the investigation, which I welcome. This is very much in line with my own experience of meeting with front-line teams throughout the country.

  However, it was still the case that a key finding in the report was that there are systemic risks that require immediate attention and which pose a potential risk of harm to children. Mr. Fred McBride as chief executive officer, CEO, has acknowledged that improvement is needed and he and his team will deliver on this. They will have my full support, the support of the board of Tusla, my Department and the Government. Tusla’s appearance before the Oireachtas Joint Committee on Children and Youth Affairs - some of the Senators were present and grilled Tusla - provided colleagues with an opportunity to question the senior management of the agency. It is important that Tusla understands the concerns raised by Senators and Deputies who have read the report but who also have "on the ground" experience about child protection services. The Oireachtas joint committee provided Tusla with an opportunity to explain from its perspective how cases are managed and how risk is minimised.

  I know that Tusla is anxious to convey the message that it is not possible to eliminate all risk. Sexual abuse is a secretive act, there is shame, there is denial and there is concealment. A reflective learning culture is essential to good practice and early identification of previously unknown risks. Using experience is also a way to minimise the risks. Tusla has recently appointed a chief social worker. Part of the role of the chief social worker is to ensure that learning is shared across the organisation.  This has not been happening to the extent it should and HIQA was very clear about it. I expect this to change and I am assured it will. Senior social work practitioners will be part of the duty teams. This should improve early identification of risks at the front door.

  With regard to retrospective allegations, I am working with the Minister for Justice and Equality on the future role of Tusla and An Garda Síochána in the handling of such cases. Tusla's role has evolved from case law and needs to be considered further. In the interim, Tusla's policy and procedures for retrospective allegations have been fully reviewed and will be available in the near future.

  The overall message is that there is an ongoing modernisation programme. However, it needs impetus and focus. This report serves to bring the actions needed into focus and sets a clear path forward. HIQA's findings are serious. Its recommendations will not be left on a shelf. They will be implemented as they are intended to be to provide a more responsive, better and comprehensive service to our Irish children whom we have a responsibility to nurture, protect and respect.

Senator Lorraine Clifford-Lee: Information on Lorraine Clifford-Lee Zoom on Lorraine Clifford-Lee I thank the Minister for coming here today to discuss this very important report. It is a very serious report that makes for very sobering reading. We have had almost a week to digest it. I was at the meeting of the Oireachtas Joint Committee on Children and Youth Affairs last week when Fred McBride appeared before it. To be honest, I would have very serious concerns about his leadership. It is clear that there was a management failure at the top. In her speech, I think the Minister referred to the fact that front-line workers are very dedicated to the service they are providing. The Government is funding the service to a reasonable extent but there seems to be a disconnect between the funding, front-line workers and delivery, which is very concerning.

  The report is very comprehensive. I appreciate that a report as comprehensive as this one needs adequate time but I was a bit disappointed that it took a year to produce. However, we have it now. The failures around the systems and policies that were referenced in the report are very concerning. There seems to be a lack of urgency around everything in Tusla. I think we would have cut it some slack when it was in its infancy but four years after its establishment, there should be far more urgency with regard to getting the systems and policies up to speed and ensuring they are correct and working properly.

  The lack of staff is one issue but even where there is no lack of staff and where it is adequately staffed, there are problems relating to processes that are in place. When failings occur, there seems to be a lack of supervision around the failings and a lack of learning from those failings. The management style does not seem to equate to the organisation being a learning experience, which is very concerning.

  Another thing that is of concern is the relationship between the Child and Family Agency and An Garda Síochána and the fact that the two organisations do not seem to be exchanging information adequately. This occurs at a number of levels. One issue of serious concern that I raised at the meeting of the Oireachtas Joint Committee on Children and Youth Affairs last week was the fact that joint interviewing did not take place as standard. I was told that it is taking place, although not to a great extent. It needs to take place as standard. Social workers need to be trained as a matter of urgency in that regard.

  We must bear in mind that we are talking about vulnerable children. They should be at the centre of everything we do in this regard. It is very upsetting to hear that files have been closed inappropriately. The number of files that are still out there awaiting allocation is staggering. I would have a lack of faith in the actual numbers we have been given when it says in the report that files have been closed inappropriately. This is something I would like the Minister to address in her response.   Throughout her speech, the Minister recognised that there were deficits. She mentioned that she was going to implement the recommendations made in the report in full. She also said she had appointed Dr. Ryan as an independent chairperson and that this would move things on. However, throughout the entire speech, I do not see any timeline, which is concerning. We need to be given a clear timeline. If the recommendations and policies are not put in place within a short timeframe, I want to know where the buck will stop. Will it stop with the Minister or Mr. McBride? We need some answers. The Minister has invested in this process. I accept her sincerity in that regard and know that she will do her best. However, it needs to be given more urgency and we need clear timelines and to know what the consequences will be if they are not adhered to. I would appreciate the Minister's response in that regard.

  My final point relates to the part of the Minister's speech where she says there is a low number of social workers in the system per head of population. Will she make proposals on how to attract people from other disciplines into the system? I know that there is a low number of people training to be social workers, but, despite this, there are those with life and academic experience in other areas who, if the right incentives were in place, could be retrained and brought into the system, bringing a lot of experience with them, including institutional experience. I would appreciate it if the Minister made reference to that matter in her response.

Senator Catherine Noone: Information on Catherine Noone Zoom on Catherine Noone I thank the Minister for coming to the House. I also thank her for calling for this report which stemmed from the investigation of Tusla’s management of the false allegation made about the Garda whistleblower Sergeant Maurice McCabe. Like most others, I was truly shocked to hear such major failings had occurred in how Tusla managed allegations of child sexual abuse. HIQA's report highlights the fact that in a number of cases children were left in potentially high risk situations. In my view and that of most reasonable people, including the Minister, this is not only unacceptable, it is also wholly objectionable. The report also identifies serious shortcomings in the screening of child abuse allegations, the development and handling of safety plans for children and the manner in which those subjected to allegations of abuse were communicated with.

  Without doubt, the most serious finding made in the report is that there were discrepancies in Tusla’s safety planning practice. This resulted in a number of children being insufficiently safeguarded, while others who also were at potential risk were not safeguarded at all. Moreover, the absence of a streamlined approach for staff to manage allegations made by adults of abuse during their childhood is also completely unacceptable and, frankly, appalling. The lack of a standardised approach has led to inconsistencies and postponements in the management of such cases which have been well discussed. Moreover, it led to the mishandling of the communications on the allegations, if, in fact, any communication took place at all. As legislators, the onus is on us to guarantee that our most vulnerable citizens receive the optimum care we can provide. Where there are incidents of child sexual abuse or cases in which adults have made allegations that they were abused as children, there can be no tolerance of inadequacies such as those which have been highlighted in the report. It is shameful that children are being left at risk of sexual abuse owing to discrepancies in how preliminary inquiries into allegations take place. As Tusla representatives noted at the committee meeting last week, it is difficult on all occasions for Tusla to detect when children are in danger, which is understandable, given the nature of what we are dealing with. It manages risk all of the time and it is a very difficult job for those at the coal face. Nonetheless, there can be no tolerance of the inadequacies such as those highlighted.

  The report makes four main recommendations to the Department of Children and Youth Affairs. They include establishing an expert quality assurance and oversight group and that the Department and Tusla seek the assistance of the higher education and training bodies to create formal career paths for students and graduates to reinforce child protection and welfare services. Other recommendations have been discussed.

  I commend the Minister for her clarity in calling for the recommendations arising from a statutory investigation carried out by HIQA of the management by Tusla of allegations of child sexual abuse against adults to be implemented in full. I also commend her for outlining a number of immediate actions to be taken, including the appointment of Dr. Ryan to chair an independent expert quality assurance and oversight group to drive implementation of HIQA’s recommendations. However, I share Senator Lorraine Clifford-Lee's concerns about the timeframe and would be grateful if the Minister outlined it for us. The actions also include finalising proposals, in conjunction with the Minister for Justice and Equality, for reforming the way Tusla and An Garda Síochána deal with historical allegations of sexual abuse, as well as engaging with the Minister for Education and Skills and higher education and training establishments to support Tusla’s workforce. This is an important point which I made at the committee meeting. We were speaking about the management of Tusla, but it is front-line staff who often have to deal with the negativity that naturally goes with the type of feedback a report such this has received. Management is at a distance from the harrowing day-to-day situations with which staff deal. There is an onus on management to protect the staff of Tusla by having proper policies in place for these difficult scenarios.

  Other suggested actions include using specialist HR expertise to work with Tusla on its skill mix. This also came up at the committee, given the fact that there is an ongoing challenge when it comes to the mix of skills available in Tusla. Its representatives spoke about the work they had done in trying to reform the way recruitment took place. Certainly, those in charge of Tusla fully recognise that there were inadequacies in the way it had been done in the past. They seemed to be genuinely and actively trying to rectify the position in the new processes.

  At this point, it important to point to some positives in the report. In fact, the findings identify examples of good practice by Tusla personnel and a strong commitment on the part of a number of dedicated staff who were striving to provide for best practice in child welfare and protection services. The Minister has spoken about the huge investment the Government has made in the area. In the wider area of child welfare and protection it must be acknowledged that the front-line teams of care and social workers who are supporting children, young people and families do invaluable work to transform young lives, notwithstanding the obvious inadequacies discovered on occasion. Significant progress has been made in dealing with important issues such as the mandatory reporting of abuse, the expansion of the number of family resource centres and the ongoing move towards providing better supports for the victims of child sexual abuse. While this progress is very welcome, the fact remains the report highlights serious inconsistencies in the handling of child sexual abuse cases which simply cannot be tolerated. As such, we need to be formidable in our determination to tackle these issues head-on in order to safeguard children and ensure they receive the protection and support they need and deserve. I intend to work with my colleagues on the Joint Committee on Children and Youth Affairs and with the Minister who I have no doubt is committed to this task. I commend her and her officials for their work.

Senator Rose Conway-Walsh: Information on Rose Conway-Walsh Zoom on Rose Conway-Walsh I thank the Minister for coming to the House to discuss the report. The inconsistencies raised in the HIQA report are stark, as the Minister said. It damages confidence significantly in a body that is our first defence in child protection in this State.

  I am glad that at the outset of her contribution the Minister acknowledged the source of this report in terms of what Sergeant Maurice McCabe has suffered. In our worst nightmare we cannot imagine the horror suffered by him and his family because of what was done to them.

  I would not imagine that Maurice McCabe is the only person who has suffered because mistakes were made in the system. Over recent years, consistent serious shortcomings in the governance and oversight of the organisation have been highlighted. The organisation is suffering from a staffing crisis. In a Committee of Public Accounts, PAC, report in January 2018, we found that despite Tusla hiring 250 new staff in 2017, there was only a net gain of 18 due to the high numbers leaving the agency. Tusla is also expecting a €11.4 million underspend in the area of staff wages.

  It seems clear that there are significant issues with staff deployment and retention. It is very obvious that many social workers are overworked and carry huge case loads which are impossible to deal with. Those staff work directly with children, some of them very vulnerable and with whom they need to build up a long-term working relationship that is based on trust. We must remember that there is nobody many of these children have been able to trust. In some cases they have not been able to trust either of their parents. They need a relationship where that trust can be built and cultivated. Without it, the damage that will be done will be immense. That is the reason the retention of staff is vitally important and we need to see serious improvement in this area.

  The Minister talked about reflective learning. I am very much for reflective learning but that is not possible when social workers do not have the time to do even the crisis management they have to do within that system. We need to listen to the social workers working in the area. We need to listen also to the social workers who have left. I cannot imagine what it is like to be a social worker who goes into work every day thinking they might miss something or that they will not do what they need to do and who experiences all that pain and suffering, without having time to reflect or even put in the protections they need to put in for themselves as social workers. They cannot do that when they are in a constant crisis management situation.

  What actions are Tusla and the Department taking to restructure that to ensure that social workers are able to handle their caseload effectively, that they are satisfied and retained in their work and that the grade of advanced social work practitioner is reinstated? We want people to go into social work. It is a dedicated job that requires passion and compassion but we will not be able to keep those people in the system, and attract others into it who would make very good social workers, if we continue to expose them, and the people they work with, to the risk to which they are currently being exposed.

  The report shows a clear lapse in the defences we have for children in this State that needs to be remedied sooner rather than later. The children we are now failing will be adults by the time we address that, and that is my big fear. We cannot lose an entire generation. I acknowledge the good work done by Tusla and the many good people in Tusla who are dedicated to their jobs but they cannot do them unless they are given the resources, the support and adequate staffing to address the need they are trying to deal with every day.

  I am glad the Minister said this report will not rest on a shelf. I hope it will not. I hope she will come into the Seanad again to tell us of the practical and pragmatic actions that have been taken that make a difference on the ground to children, to families and to the many dedicated workers who are trying to do their very best in a system that is currently not fit for purpose.

Senator Máire Devine: Information on Máire Devine Zoom on Máire Devine Cuirim fáilte roimh an Aire ar ais chuig an Seanad. I concur with my Sinn Féin colleague. The current position with Tusla as highlighted in the HIQA report means we are failing children and their interactions with youth services.

  The report highlighted a number of key performances where Tusla is failing in its duties, one of which was the inconsistencies in practice around the screening of allegations and making preliminary inquiries. While Tusla focused on examining current risk to children, that often resulted in a lack of urgency in responding to retrospective allegations of abuse against adults of concern. This meant that children who are potentially at risk from adults who are alleged to have abused children in the past or who were convicted of child sexual abuse in the past and now have access to other children may be missed.

  I am particularly concerned as to how Tusla and the Department intend to deal with retrospective child protection cases that Tusla has now deemed to be completed or closed but were not investigated to their full extent. Will the Minister outline the steps she intends to make on this?

  Furthermore, what immediate steps can she take to aid Tusla with its heavy caseload? In response to a parliamentary question from my colleague, Deputy Denise Mitchell, in March, the Minister said there were 25,000 open cases in the system at the end of December 2017, of which 5,000 were awaiting the allocation of a social worker. Of those cases, there were a number of high priority cases, where a child is considered to be at high risk of abuse, with unallocated social workers. Of those, 198 were waiting under one month, 189 were waiting between one to three months and 346 were waiting three months or more. Tusla was unable to provide a waiting time for a further 87 cases. That is indicative of poor record keeping.

  I am cognisant not just of the Health Service Executive, HSE, which is rightly getting a battering lately for its policies, procedures and lack of care, especially for women, but I am cognisant also of the hard-working staff in Tusla. They were my colleagues and many of them tell me they are terrified of going out socially and people asking them what they do. They will not say they work for Tusla. They are subjected to abuse because they are being blamed for the mismanagement of the policies and the report that has been produced. These are the ordinary people, like the HSE staff, who are fire fighting because that is all they can do lately. Recruitment and retention is the biggest issue. As my colleague, Senator Conway-Walsh said, there has been a gain of only 18 despite an influx of social work staff. We cannot have a situation where caring staff are ashamed of their title and of their work. I want to put on the record that that is not their fault. They are the backbone in terms of protection for children and health services in our country.

  We have failed to fully implement issues arising from last year’s report into section 12 of the Child Care Act by Professor Geoffrey Shannon. He stated: "Consideration should be given to having social workers assigned to specialist child protection units", and that there should be a review of legislation to ensure that there are no legal roadblocks which might impede, "child protection services sharing information relating to vulnerable children and their families". Will the Government now consider specialist child protection units to ensure that no child is failed again? As I am sure we all agree, one child failed is one too many and the current failings of Tusla, as outlined in the report, is a calamity.

Minister for Children and Youth Affairs (Deputy Katherine Zappone): Information on Katherine Zappone Zoom on Katherine Zappone I thank the Senators for their helpful contributions. It is clear that they have spent some time reading and reflecting deeply on the report and, where the social services provided through Tusla are concerned, have been in touch with colleagues and those who work within their communities. All of them have referred to the commitment of and excellent work being done by the organisation's people on the ground. I acknowledge and express my gratitude for that work. It is a difficult time, given how critical the report has been of many aspects of the organisation. I am at one with Senators in that regard. I am also at one with the board and chief executive who are also in communication with the people concerned and have expressed their willingness to support them in a new way and commit to the sense of urgency for which all of the Senators have called.

  I will respond first to the Senators' focus on the people providing the services and what we owe them in difficult work circumstances. All of the Senators referred to the sense of urgency. I have communicated to the chairperson and the chief executive directly that I will also be seeking urgency. HIQA is also seeking it.

  The first recommendation is for Tusla to develop an action plan that will respond to all aspects of the report. When I spoke to the chief executive this morning, he stated Tusla was working on it. When I meet the board at the end of this week, we will discuss it further. The chief executive stated it would take a maximum of a couple of weeks to put the plan together. It will not only outline what is to happen but also who will be responsible and what the timelines and deadlines will be. HIQA has asked that Tusla, after it examines the recommendations and develops the action plan in response, revert to it with information on the timelines for the various actions to be taken. I will ask HIQA to advise me on whether it believes the timelines are suitable.

  Regarding the recommendation on establishing an oversight or quality assurance group to ensure implementation of the recommendations and action plan, the House will be aware that I appointed the independent Dr. Moling Ryan to chair the group. My officials have already met him and will do so again tomorrow. They are undertaking a process of agreeing the group's membership and terms of reference. Dr. Ryan will probably have read the report thoroughly by tomorrow and will make recommendations on the categories of members to be included - it will not be a large group - and the terms of reference that will be needed if the group is to do its work, which is targeted at the report's recommendations. My understanding is those involved hope to have the process completed and the people gathered to do the work by next month and that the work will start in September. That said, we need to keep an eye on the ongoing timeframe. I will be happy to revert to the House on the matter. I am trying to describe an awareness of the need for timelines, given the sense of urgency involved.

  The second question raised by the Senators was related to staffing issues, which were a key aspect of the significant criticisms raised in HIQA's report, as well as its recommendations. Senator Rose Conway-Walsh asked what it was like to be a social worker. Social workers face challenges and difficulties and want more colleagues to share the work. That is a key issue and we will approach it in a number of ways, one of which will be engagement with the higher education sector. This medium to long-term approach is meant to increase the number of professionally qualified social workers on which Tusla can draw. It has been liaising with third level institutions in the Republic, Northern Ireland and Great Britain. There are a limited number of graduates per year. Since they make a significant contribution to Tusla, it is important that it liaises with other jurisdictions also.

  The Senators may be interested to know that we have been working with the Department of Health which has the lead role in the national strategic framework for health and social care workforce planning. In addition, my Department has been working with the Department of Health and Tusla in examining the various relevant issues over a period. That said, we need to increase the tempo in that regard. I met the Minister for Education and Skills last week to discuss the issue. We agreed that his officials would work with mine in considering the need for additional social work training places and specific courses within the overall degree programme and in examining other aspects of higher education training for social workers that could not just lead to more workers but also allow us to draw on others' expertise and training. Practical issues such as these will feed into the discussions with officials and the Minister for Education and Skills on the mix of skills, workflows and staff in Tusla recommended in the report. We will work with the third level sector to determine how we can not just train more people but also train more differently.

  Senator Lorraine Clifford-Lee asked about training people from different backgrounds. Mature students are welcome to apply for social work training. When I met the chief executive and the chief operations officer this morning, they told me that Tusla offered training bursaries. They want to draw on people from different backgrounds. My officials are engaging with the Department of Education and Skills on the issue of increasing the number of training places.

  I wish to address two other aspects of the human resources issue. We need to do something before the medium term hits and more social workers have been attracted into the system. I will appoint an independent human resources expert to Dr. Ryan's group who will work specifically on immediate plans for a different staff mix and workflow in order that social workers will be able to focus more on their social work, as distinct from the other necessary aspects of working with families and children.   The other aspect would have to do with the retention of social workers. Obviously, we need to bring them in but we also need to keep them. Senior practice social workers are going to be on every child protection team and senior social workers are going to be deployed to all duty teams. Tusla has a welfare strategy for social workers who experience stress. All of these issues have been identified with regard to the changes that would be required to support the social workers who are there and want to stay because of their great commitment and their sense of vocation for what they are doing, as well as it being a profession.

  The Senator also had questions around the relationship between the Garda Síochána and Tusla. The two bodies have developed a draft memorandum of understanding on information and data protection issues, given these have been some of the challenging aspects of working together that have slowed down some of the processes. We now have a draft memorandum of understanding in regard to the way they share their information. My understanding from my officials is that this should finally be agreed within a short period of time, that is, within the next couple of weeks. It has been developed to ensure there is no practical or legislative roadblock that impedes the sharing of child protection information between the Garda and Tusla. Equally, there is no legal barrier to the sharing of that information for child protection purposes, which is very important.

  A question was also raised on another aspect, namely, specialist interviewing. The Garda Síochána and Tusla are examining the development of additional specialist training to improve this area and they are working together, especially with regard to gardaí training Tusla staff, in order to identify more people who can do that specialist interviewing with children.

  Senator Devine also asked about specialist child protection units, which we have been working on in light of Professor Shannon's report. We are working with the Department of Justice and Equality and the Garda in regard to developing a proposal, and I hope it will be completed to the point where we can, in the fall, identify at least some form of piloting approach to that. While that is all I will say for the moment, there have certainly been many meetings, much thinking and the development of strategies with the Garda, as well as with my own Department.

  In addition, to date in 2018 the Garda Síochána has established four divisional protection units - in Cork, Louth, Blanchardstown and Clondalkin. Tusla is working with the Garda Síochána in assigning child protection social workers to work with each unit and a further eight units are expected to be open in the coming months. I have tried to identity some of the key ways in which new actions which have been in the process of being designed are ready to, or are actually beginning to, be delivered, which I think and hope will make a significant difference.

  Senator Clifford-Lee asked who is responsible. The questions of oversight and governance are critical, especially in the agency that protects our children. There is a board and there is also a chief executive. The oversight group will oversee and quality assure the implementation of this report, and although it will not oversee the whole thing, it will have some responsibility in terms of oversight in that regard. Ultimately, however, I am responsible. I certainly feel very aware of and committed to assuring the recommendations of this report are implemented with a great sense of urgency. That is why we have already tried to act on some of them. Overall, it is my Ministry. The chief executive also acknowledged at the committee that he too is responsible, given the level he is at within the organisation, and he is taking that very seriously.

  It is given those different levels of accountability and oversight, as well as the changes I am indicating and the ways in which we are going to implement the recommendations, that I believe this provides us with the opportunity to move into a new period for Tusla. The HIQA report states that the vision is good and that the strategic policies at national level, which have been developing in recent years, are good and strong, but it is not enough. That is what our work is for the next period of time.

  Sitting suspended at 5.35 p.m. and resumed at 5.45 p.m.

Mental Health (Amendment) Bill 2017: Motion

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan A message has been received from the Dáil concerning amendments made by the Seanad to the Mental Health (Amendment) Bill 2017. The message has been set down on the Order Paper. The list of amendments made by the Seanad and considered by the Dáil has been circulated for the information of Members. The Dáil has not agreed to amendment No. 4 and desires that Seanad Éireann should not insist thereon. Senators may move, in respect of the original amendment No. 4, either "That the Seanad do not insist on the amendment" or "That the Seanad do insist on the amendment".

  Senators may speak once only, except the proposer of the motion who has the right of reply. Any Senator who wishes to move either of the permissible motions may do so now. There must be a seconder for a motion moved by a non-Government Senator and the motion should be seconded immediately. The seconder may reserve his or her speech until later.

Senator Frank Feighan: Information on Frank Feighan Zoom on Frank Feighan I move:

That Seanad Éireann do not insist on Seanad amendment No. 4.

Minister of State at the Department of Health (Deputy Jim Daly): Information on Jim Daly Zoom on Jim Daly The message returned to the Seanad from the Dáil is to the effect that while the Dáil accepted a number of amendments made to this important Bill on Report Stage in the Seanad, it did not agree to the amendment proposed by Sinn Féin Senators to section 15 of the Mental Health Act 2001.

  As Senators will be aware from the debate in this House on Report Stage, this amendment was proposed following a judgment by the Court of Appeal delivered on 4 May 2018. This judgment declared that renewal orders by mental health tribunals under section 15(3) of the Mental Health Act 2001, which include both six and 12 month orders, breach Article 40.4.1° of the Constitution. I acknowledge that the amendment was well intentioned and I fully agree that section 15(3) of the Mental Health Act 2001 needs to be changed sooner rather than later. My officials, along with the Office of the Attorney General, are actively working on this matter. I particularly want to thank Deputy Pat Buckley, who confirmed on behalf of Sinn Féin that its Deputies would not agree with the amendment in the Dáil as he accepted my explanation that the amendment, as proposed, would also be unconstitutional in light of the court judgment. He also accepted that we need to carefully examine existing six and 12 month renewal orders and how we legally deal with these in the amendment to the 2001 Act currently being examined.

  While it is important to confirm that the court's declaration of unconstitutionality stands suspended until 8 November 2018, I assure Senators that the obligation on government to present an appropriate and legally proofed amendment to the Oireachtas is one that will be met in a timely manner. Once again, I express my appreciation to Members of the House for their important contribution to this Bill and I thank Sinn Féin Deputies and others in the Dáil for agreeing to leave the amendment in my hands and the hands of my officials for the moment.

Senator Máire Devine: Information on Máire Devine Zoom on Máire Devine It is unusual to have anyone thanking Sinn Féin but it is appreciated. Deputy Buckley and I spoke at length and decided we would take the advice of the Minister of State in the interests of facilitating the passage of the Bill. Perhaps we are coming to a better place for people suffering from ill health in this country.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson I welcome the Minister of State back to the House and thank him for the contribution he has made in his role. I commend my party colleague, Deputy James Browne, and the various mental health advocacy groups on the work they have undertaken in bringing the Bill to fruition. I also thank Deputy Pat Buckley for his input. He spoke to me about the amendment we passed in the Seanad and subsequently agreed not to pursue. As we heard, Deputy Buckley accepts what the Minister of State said in that regard.

  Deputy Browne joins a small minority of Opposition Deputies who have managed to get Bills passed in both Houses since the adoption of the Constitution. Progressing mental health reform is a key objective of the Fianna Fáil Party and this is an important step towards realising that objective. The enactment of the Bill will improve the provision of mental health services and promote the rights of persons availing of them.

Senator Frank Feighan: Information on Frank Feighan Zoom on Frank Feighan I thank all stakeholders, including Deputy James Browne, for their work on progressing mental health reform and in respect of this Bill. Deputy Browne is seeking a number of key changes to the Mental Health Act 2001 which will give patients more say in their treatment and often more protection. I understand the Dáil has agreed to all the Seanad amendments bar one, which concerns section 15 of the principal Act, as we are now discussing. The Minister of State thanked Deputy Pat Buckley who confirmed on behalf of Sinn Féin that its Deputies would not agree to the amendment in the Dáil. His explanation is reasonable and I certainly agree with it.

Deputy Jim Daly: Information on Jim Daly Zoom on Jim Daly I congratulate Deputy James Browne on bringing the Bill through all Stages. I thank all the contributors and stakeholders, and colleagues from all parties and none in both Houses for their co-operation. As Senator Devine said, we all have the same interest at heart, namely, the betterment of the lives of people with mental illness.

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan I congratulate Deputy James Browne and thank the Minister of State for attending the House.

  Question put and agreed to.

  6 o’clock

Data Sharing and Governance Bill 2018: Committee Stage

  Sections 1 to 4, inclusive, agreed to.

NEW SECTION

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I move amendment No. 1:

In page 9, between lines 24 and 25, to insert the following:
“Interaction with Data Protection Acts and General Data Protection Regulation

5. Nothing in this Act shall affect the operation of data protection law.”.

This amendment proposes to delete the lines which would suggest that section 38 of the Data Protection Act, which recently went through these Houses, would not apply. I suggest that nothing in this Act should affect the operation of the general data protection regulation, GDPR, and indeed the Data Protection Act, which is required to implement the GDPR. We debated long and hard in respect of section 38 of the Data Protection Act. The Data Protection Act obliges the Minister to consult first with the Data Protection Commission before passing regulations. Perhaps more crucially, there is something about which I think there was strong feeling on all sides of the House and which was replicated in the Dáil. It is that when proceeding with regard to the advice given by the Data Protection Commission, the Minister must provide a written explanation as to the justification of why he or she is proceeding in that way and lay it before any relevant committee. That is one aspect. I know an alternative process is being proposed here. Perhaps the Minister will give his perspectives and reassurance to us on it. Does the alternative process meet the same standards as section 38 in ensuring there is compliance with the Data Protection Commission's advice and that there is scrutiny by committees?

  There is another thing I will press on Report Stage unless there is movement on it. Section 38 of the Data Protection Act also makes explicit a requirement of necessity and proportionality with regard to actions taking place. If we are saying that this Bill will not abide by section 38 of the Data Protection Act, there is some concern that we may be diluting the commitments to necessity and proportionality which are a linchpin of the general data protection regulation.

Minister of State at the Department of Public Expenditure and Reform (Deputy Patrick O'Donovan): Information on Patrick O'Donovan Zoom on Patrick O'Donovan The Senator's amendment proposes the deletion of section 5(2) and (3) of the Bill, which relate to section 38 of the Data Protection Act 2018. This section of the Data Protection Act provides that a Minister may make regulations for the processing of data for a task carried out in the public interest or in the exercise of official authority. Data sharing is included in the definition of data processing in the GDPR and the Data Protection Act. In regard to the Senator's comments, we are not doing anything to dilute or undermine anything. In effect, we are strengthening the existing provisions. Everything we are doing is with regard to the existing provisions. It means that it is currently lawful for a Minister to make an order under section 38(4) of the Data Protection Act authorising two or more public bodies to share data to carry out their functions. Section 5(2) and (3) of this Bill are intended to prevent public bodies from side-stepping this Bill by making regulations for data sharing under section 38 of the Data Protection Act. It is a reaffirmation of section 38. The Data Sharing and Governance Bill recognises that data sharing is of particular importance in the context of personal data processing and, as such, sets out additional processes that must be followed before data sharing is permitted. The Senator's proposed amendment would establish a more permissive data sharing regime than the one currently set out in the Bill. On that basis, I cannot support the amendment and encourage the Senator to withdraw it.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I would not concur that it is more permissive. We need to look to the elements in section 38. I certainly would not have an objection if additional standards were to be imposed on top of the standards implied in section 38 of the Data Protection Act at the moment. This is why it was such a key point of interest. Section 38 of the Data Protection Act relates to the public interest. We all recognise that public interest is an important ground for exemption where data might need to be shared. We felt that public interest requires scrutiny. I imagine that a large number of those cases where public interest will be invoked will be situations where public bodies are sharing data with other public bodies. We do not want to hollow out the operation of section 38. I am happy not to press it at the moment but the Minister of State has not addressed the key questions I had, which were the concerns relating to committee scrutiny in the full sense, necessity and proportionality, the taking of advice from the Data Protection Commission, and the publishing of rationale. Those are the elements of section 38. I know there is a new process and do not mind it being done too but any new process needs to have those core elements reflected. The process that is planned perhaps falls short on a couple of those elements. Perhaps some happy compromise can be found. Those are the specific elements in section 38 that I am looking to protect.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan I think there might be some confusion because the Bill currently requires public bodies to enter into formal data-sharing agreements to share data that set out, among other things, what data will be shared, the purposes for which it is shared, as outlined in the Bill, the processing that will be carried out in the data, and how the data will be kept. The Bill also requires that the data-sharing agreements be published in advance and open to consultation. Nothing in the Bill would preclude Members of this House, the other House, or the Data Protection Commissioner from making any kind of observations. The data protection officers in public bodies who are party to the data-sharing agreement must be satisfied in the first instance that there is agreement and compliance with the data protection law before the agreement is submitted to the data governance board for further scrutiny as to its compliance with data protection. We have to be confident that any public bodies entering into any agreement have to be satisfied that the existing legislative structure and the GDPR are complied with.  That is being done because the data governance board, for which strict provision has been made in the Bill, will arbitrate on the agreements, which will be subject to further scrutiny by the Data Protection Commissioner. They will also be laid before the Houses of the Oireachtas and, as the Bill lays out, the Minister of the day will also have a role in their compilation. None of what I have identified as part of the Bill is laid out in section 38 of the Data Protection Act. That goes to the core of what the Senator has said, namely, that the Bill reinforces the provisions and supports and scaffolds section 38 of the Data Protection Act in a way that is not done currently. On that basis, anything that would dilute or erode the provisions of this section would have unintended consequences which I know is not what the Senator intends, and erode exactly what we are trying to have constituted in the Bill in the first instance. On that basis, I cannot support the amendment.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins There are still a few small elements to be considered, namely, the role of the committee and the publication of the rationale where there is a conflict, as well as the crucial issues of necessity and proportionality. Perhaps, as we move through the Bill, there might be points at which I will propose that provisions with respect to necessity and proportionality be reinserted. If we were to reinsert them in those places, we might also address some of the concerns about the data governance board which comprises 12 persons appointed by the Minister, which is slightly different from the number in other areas where there is scrutiny. There will be opportunities to make the system more robust, but there are still gaps in it, as structured.

  I am happy not to press the amendment because I recognise it is a new system, but I am keen to ensure it will incorporate all of the best elements of section 38 of the Data Protection Act. I might be able to liaise with the Minister of State and his officials on how specifically we can do this.

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson The Senator is not pressing the amendment.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins Not if I have the potential to engage with the Minister of State on that matter.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan I do not want to labour the point, but, as we go through the Bill, particularly the reason the data governance board and the concept of proportionality are taken as a given, in the sense that we must have regard to existing legislation and the GDPR, that we have put in place a data governance board to protect the interests of citizens and public bodies, that we have the backstop of the Data Protection Commissioner and that we have the role of the Minister, it is proportionate in what we are seeking to do.

  Before we proceed further, I remind Members that in this legislation we are providing a legal basis for the sharing of data between public body A and public body B for the benefit of citizen X. It is not currently on the Statute Book and is a lacuna in the law that needs to be addressed.

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson Is Senator Alice-Mary Higgins pressing her amendment?

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I am not pressing it at this time, but I reserve the right to return to it.

  Amendment, by leave, withdrawn.

  Section 5 agreed to.

SECTION 6

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson Amendments Nos. 2 to 5, inclusive, are related. Amendment No. 3 is a physical alternative to amendment No. 2, while amendment No. 5 is a physical alternative to amendment No. 4. Therefore, amendments Nos. 2 to 5, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I move amendment No. 2:

In page 10, line 3, after “identity” to insert the following:
“excepting such parts of that public service identity which constitute special categories of personal data under GDPR, including biometric data such as facial images which allow for the unique identification or authentication of a natural person”.

These amendments relate to the tension or conflict in the Bill between sections 6 and 12. Section 12 states: "This section applies to the disclosure of personal data (other than special categories of personal data) by a public body to another public body, where there is no other enactment or law of the European Union in operation under which specific provision is made permitting or requiring such data-sharing". It states it does not apply to special categories of personal data, yet section 6 has effectively been designed in a way which will permit an intersection between the public service identity dataset and section 12, with the exception of one small part of it. The problem that arises is that the public service identity dataset contains special categories of personal information. Under the GDPR, biometric data are defined as including facial images which allow for the unique identification or authentication of a natural person. There will be circumstances where biometric data such as facial images and photographs will need to be exchanged. Article 9 of the GDPR sets out the circumstances in which it may occur. Special measures need to be taken to safeguard special categories of personal data, which include facial images. There is tension between section 12 in not wanting to deal with special categories of personal data and section 6, which covers how the dataset that contains special categories of personal data, will be processable under section 12.

  I recognise that only specified bodies, not every public body, will exchange the data, but there is tension and I have put forward a few ways by which it might be tackled. I have suggested the inclusion of the words "excepting such parts of that public service identity which constitute special categories of personal data". I have put forward another version in which I spell out the special categories of personal data to which I am referring and recognise that there may be interpretational differences. That is the reason I have put forward two versions. Amendment No. 2 which spells out biometric data include data "such as facial images which allow for the unique identification or authentication of a natural person" is better, stronger and clearer, but I recognise that the Minister, the Minister for Employment Affairs and Social Protection and others are considering and questioning whether photographs constitute biometric data. There should be no objection to amendment No. 3, which I hope the Minister of State will accept. It provides for the insertion of the following words "excepting such parts of that public service identity which constitute special categories of personal data". That would make section 6 directly compliant with section 12, which states it does not apply to special categories of personal data. Amendment No. 3 would simply reinforce that special categories of personal data would not be processed under section 12. It is an issue of direct compatibility. I will find it difficult to understand if the Minister of State does not accept amendment No. 3, although my preference would be for him to accept amendment No. 2.

  Amendment No. 4 provides for the insertion of the following words "where the information is disclosed [it must be] in accordance with the Act and compliant with Article 9 of GDPR". Where there are special categories of personal information, Article 9 of the GDPR becomes relevant and must be abided by. Another amendment proposes the insertion of the words "where the information is disclosed in accordance with Article 9 of the GDPR". These are literally suggestions.

  I have also indicated that section 6 is opposed, an issue that will be discussed separately. I question if this is the appropriate place in which to deal with it. Section 6 refers to the public service dataset and specified bodies under the social welfare legislation of 2005. Many argue a social welfare Bill is the appropriate place in which to tamper with the terms of social welfare legislation and that we should wait for the next social welfare Bill to do so, especially given that the generality of this Bill deals with public bodies, whereas the social welfare Bill only deals with a closed set of specified bodies. I know that the Minister of State wants to put some of the other good practices in place and perhaps that might be the appropriate Bill in which to do so in the context of how specified bodies engage with each other. Giving him the benefit of the doubt, it is the only rationale I see for the inclusion of section 6 in this Bill, but if it is to remain in the Bill it must be compatible with section 12 and, crucially, the GDPR. Currently there is an incompatibility.

  A particular concern arises in that regard, given that this is one of the issues being considered by the Data Protection Commission, and which has been part of the debate on the public services card on which we are still awaiting the decision of the commission. Amendment No. 3 has been phrased mildly in that it does not seek to anticipate what the decision of the commission might be.  Amendment No. 2 is probably somewhat more specific and reflects what I believe is the correct interpretation. I ask the Minister of State for his observations on the amendments.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan We need to go back to when the Bill went through pre-legislative scrutiny and the Data Protection Commissioner was given sight of it. It is important to point out that the observations of the Data Protection Commissioner and those involved in pre-legislative scrutiny have been incorporated in the Bill.

  On whether we have the luxury of waiting, I draw attention to a point I made on Second Stage regarding Part 5 of the Bill which is not referred to in these amendments but is of concern to me and other Oireachtas Members and regards the sharing of information to accrue pension entitlements. All elements of the Bill have been formulated with the objective of protecting people’s information and enabling a seamless public service. I am a little hesitant to begin picking out parts of the Bill, particularly as it has undergone pre-legislative scrutiny but I am satisfied that data sharing is provided for under section 6 of the Bill and is restricted to the sharing of personal data only and that, as set out in section 12 of the Bill, the sharing of special categories is not permitted. In addition, although it is not referenced in these amendments, section 36 of the Bill makes clear that special category data may not form part of a base registry. Furthermore, the Bill sets out in section 5 that nothing in the Bill shall affect the operation of data protection law, including the GDPR. As such, any actions carried out under this Bill must be fully compliant with the GDPR. There is no need to restate that elsewhere in the Bill and to do so may give rise to confusion as to whether GDPR applies to some provisions of the Bill but not others.

  Having reviewed the issues raised by amendments Nos. 2 to 5, inclusive, with the Office of the Attorney General, I draw attention to the fact that the Bill does not try to unwind the public services card, to which reference was made, and which has widespread support across this House. As PPS numbers are currently widely used by public bodies in the State, it is important that the legislation clarifies the position on the sharing of data. Accordingly, section 6(1) of the Bill provides that it does not affect the operation of the 2005 Act except as set out elsewhere in section 6. I know we are going around the houses somewhat but, having reflected on the four amendments, I think they could have unintended consequences and, on that basis, I do not support them.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins We are going around the houses and we are going around the amendments because the section on pensions has absolutely nothing to do with this section, section 6, and base registries have nothing to do with these amendments. The key questions and concerns I raised have not been addressed. I have not raised concerns about pensions or base registries. Nobody is in a position to invoke the Data Protection Commissioner as endorsing the Bill as the data protection commission is the adjudicator on rather than the promoter or presenter of a Bill. We await a decision and report from the Data Protection Commission on the public services card and, more importantly, the public services data set, which is addressed here.

  PPS numbers are very widely used and they are a key point but over the past year and a half photographs and biometric data have been added to that data set. There is nothing wrong with the PPS numbers being shared as a normal category of personal data but there is a concern in regard to the processing of photographic and facial images, especially given the new contracts in social welfare and other areas. Ultimately, there may need to be a mechanism whereby the PPSN element is shared but the photographic element thereof is shared under a different set of provisions compatible with Article 9 of the GDPR. Article 9 is clear that the data may be shared but provides the circumstances in which that may be done. Section 12 provides a completely different set of rules for the sharing of those data. That is not to say that facial images cannot be shared but, rather, that that must be done in a manner compatible with Article 9. It may be that the rest of the data set is shared under one set of rules and the photographs under another or that section 12 is adapted such that it is compatible with Article 9 of the GDPR. It may be that section 12 will provide the grounds for most processing public bodies but specified bodies will operate on different grounds. There is an incompatibility. Saying it is confusing or talking about inadvertent consequences does not deal with the incompatibility which we must address.

  I ask the Minister of State to outline his objection to amendment No. 3. If he is of the belief that the Bill already provides for the provisions in the amendment, why not clarify that such parts of the public service identity which constitute special categories of personal data would not be processed under section 12? That would reiterate what the Minister of State has said he is confident will happen anyway. I hope he will accept that amendment.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan The Bill in its current format does not permit the sharing of personal data under section 12. Section 12 spells out what can and cannot be shared. Many of the concerns raised by the Senator are addressed in section 12.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I do not want to spend too much time on this grouping but section 12 sets out a number of situations. I could read Article 9 and section 12-----

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson I remind the Senator that we are dealing with section 6.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I would prefer not to have to address it but section 12 of the Bill, which sets out circumstances under which one can share data, and Article 9 of the GDPR which sets out the circumstances under which one may share photographs, are different. Different circumstances are provided for in each. I am suggesting ways to make them compatible and am trying to be constructive. Repeatedly stating that everything is fine does not make it so.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan I did not say it said that. Section 12(1) states:

This section applies to the disclosure of personal data (other than special categories of personal data) by a public body to another public body, where there is no other enactment or law of the European Union in operation under which specific provision is made permitting or requiring such data-sharing.

We have had regard to the GDPR and other legislation on the matter and it is on that basis that I cannot accept it.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins In that case, why is the public service data set only excluded in one small sub-section of circumstances in section 12? Why does the Bill specifically allow for the public service data set to be processed under section 12? The public service data set has within it special categories of personal information. Is it the view of the Minister of State that facial images could not be shared under section 12? I ask him to give assurance on the record in that regard. Will the facial images within the public service data set be shared with other specified bodies under section 12?

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan I can clarify that immediately. If they are biometric data, they cannot be shared in that manner.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins If that is so, why does the Minister of State object to amendment No. 3 which aims to make that clear in section 6? I accept that the Minister of State does not wish to accommodate these amendments.

  Amendment, by leave, withdrawn.

  Amendments Nos. 3 and 4 not moved.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I move amendment No. 5:

In page 10, to delete line 5 and substitute "where the information is disclosed in accordance with Article 9 of GDPR.".

I urge the Minister of State to re-examine these amendments because I intend to reintroduce them on Report Stage. It is a question of which amendments we will press. I will be happy to engage with the Department and with the Minister of State on these matters. I realise that there are a number of approaches to these issues.

  Amendment, by leave, withdrawn.

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson As amendments Nos. 6, 12 and 18 are related, they may be discussed together.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I move amendment No. 6:

In page 10, line 8, to delete "section 12(2)(a)(ii)(VIII)" and substitute "section 12(2)(a)(ii)(III) or (VIII)".

Amendment No. 6 refers to the interaction with the Social Welfare Consolidation Act 2005. All of these amendments are being proposed to resolve a problem of legal incompatibility arising from a 2015 European Court of Justice case between Google Spain and a Spanish citizen. I am addressing the same issue in sections 6 and 12 and in a later section as well.

  I will quote from section 12 because it is the easiest one to use to make my point. It provides that one of the grounds on which data sharing will be permitted will be, "to avoid the financial and administrative burden that would otherwise be imposed on the second mentioned public body or on another person were the second mentioned public body to collect the personal data directly". The key point is that European Court of Justice rulings make it very clear that "the financial and administrative burden", as it is phrased here with a pejorative slant, is not in itself an acceptable basis on which to share data.

  I recognise that we are talking about a combination of a public body's performance of its functions and its desire to avoid financial and administrative costs. It is clear that the sharing of the personal data of individuals between public bodies will be allowed any time it happens to be a bit cheaper or handier for that public body. Therefore, this extraordinarily wide provision will apply under almost all circumstances.

  The European Court of Justice has previously recognised that this system does not work if a public body can simply say it is financially and administratively easier for it to get the data without having to go through any other normal process. Such an approach does not stand up in the rulings of the European Court of Justice. In the case involving Google Spain and other search engines, they argued that it was administratively and financially burdensome on them to exercise and vindicate the right to be forgotten of the individual or data subject. It was ruled that it would never be necessary or proportionate for them to act on that basis.

  We will come back to the question of what is necessary or proportionate later in this debate. It is certainly the case that financial and administrative ease is not a necessary or proportionate ground. The section of the Bill I am seeking to amend does not stand up legally. We have case law in respect of it. When I met the departmental officials, it was acknowledged that there may need to be movement in this regard. I am interested to hear what the Minister of State is proposing in that context. I will listen to those proposals before I expand on our concerns.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan There has been a great deal of engagement. I acknowledge that the Senator has engaged and I thank her for doing so. She referred to Google Spain, which is a private body. This Bill refers to two public bodies. It is not necessarily comparable.

  The Bill refers to a number of prescribed public bodies. The prescription of the public bodies will make it possible for the Minister to add other public bodies, or other bodies which might yet necessarily be constituted, in the future. We do not know what size such future bodies might be and we do not know how burdensome that would be.

  Outside of all of that, I repeat the point I made earlier, which was that any data sharing which will be carried out in the future on this basis will need to have regard to all the backstops, namely, the Minister, the governance board and the data commissioner. While there are two parties to the agreement, we cannot really determine the size and the financial ability of one of those parties at the moment.

  The three amendments before the House propose the removal of the avoidance of a financial and administrative burden as one of the purposes for which data sharing can take place and a registry be designated under this Bill. The primary legal basis for data sharing under the Bill is Article 6(1)(e) of the GDPR, which refers to, "processing necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller". This Bill, in seeking to further limit the circumstances under which data sharing may occur, lists the avoidance of a financial and administrative burden as one of a list of additional purposes, at least one of which must be engaged in, in order for data sharing to be permitted. I emphasise that it is just one of the purposes listed. The aim of this provision is to support the principle that people should have to give their information to a public body once only. During the pre-legislative scrutiny phase and in earlier discussions in this House, Members said they were very keen to avoid all of us being confronted on a continuous basis with having to provide the same information to public bodies that are trying to deliver services to us.

  If this amendment is agreed, and if this is the only additional purpose a public body is relying on to share data, people will be left having to resubmit documents to public bodies on a continuous basis, rather than enjoying the benefits of the once-only principle. This would undermine one of the main tenets of the Bill and would militate against the purpose of the Bill and the obligation on public bodies to provide an efficient and effective service. It would also militate against the efficient and effective use of taxpayers' money by public bodies, which I am sure no one would intend. We are committed to the implementation of the once-only principle under the Tallinn Declaration on eGovernment, to which Ireland is a signatory. The Senator’s amendment would effectively hold Ireland behind its European counterparts and militate against the achievement of the Tallinn objectives, one of which is the once-only principle. On that basis, I cannot support these amendments.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins The Tallinn Declaration is a declaration, whereas the GDPR is law. They are quite different. The GDPR takes significant precedence on the hierarchy of priority. I suggest that in invoking the once-only principle, the Minister of State has given the Tallinn Declaration an equivalent status. However, it is not in any way equivalent to the necessity and proportionality test we now have under the GDPR.

  Convenience, as represented by the once-only principle, is not a ground that stands on its own in fulfilment of the requirements of necessity and proportionality. That has been determined by the highest courts. That the case involved a private body rather than a public body is not pertinent in this context because it is a matter of necessity and proportionality. I am not challenging the grounds we already have regarding a public body's performance of its functions, a large number of which are set out in section 12. I refer to more effective delivery, etc. All of those grounds relate to a benefit to the individual data subject whose data this is, who owns this data and whose benefit has to be paramount. Those are the other circumstances.

  Perhaps it is misleading to refer to this as just one of many purposes. Only one of these categories is needed to justify the protection of data sharing. All that is needed is to have the function and the fact of it being administratively and financially convenient or less burdensome to the public body, rather than to the individual. The Bill that is being proposed is not a matter of convenience to the individual - it is a matter of convenience for the public body. Again, that is going away from the principles of the Data Protection Acts and the principles of benefit for the individual and, where possible, choice for the individual.  This incompatibility has not been addressed.

  There is a reason that these provisions are included in the GDPR. It has not been done to make life difficult for anybody but to achieve a balance. We see in Hungary and other parts of Europe examples of states where there has been overreach by public bodies. It is appropriate that checks and balance apply regarding how public bodies share data of citizens among themselves. There are times when data sharing is merited and times when it is questionable. The grounds provided are so wide that almost any data sharing of individuals' data among public bodies will be possible. The backstops are not really relevant. They relate to the process of checking, but the initial data sharing agreement needs to be on a legal basis. What is proposed in this section - a financial and administrative burden on the public body - is not a legal basis that satisfies the criterion that the data sharing be necessary and proportionate. It is simply not legal and does not meet that standard. I ask the Minister of State to re-evaluate the section. Regardless of what the Data Protection Commissioner or any other body may say down the line, the starting point must be to operate from a basis of legal compatibility with the relevant laws, not simply declarations.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan I agree with Senator Higgins on one point, namely, that nobody present claims to have the knowledge of the Data Protection Commissioner. While the Data Protection Commission has been silent on certain matters, that is not to suggest the commission either supports or opposes anything. However, after the heads and general scheme of the Bill were published and circulated, they were scrutinised and the various arguments were well aired. We have had a good debate on the legislation.

  Senator Higgins raised the issue of checks and balances and asked whether there is a legal basis for data sharing. That is the reason we are discussing this Bill. As I stated, there is a gap in the system and information is being shared on a regular basis. I do not agree with the Senator's view that convenience is not an issue for citizens. Convenience is an issue and people legitimately ask why they have to repeatedly submit the same information to Ireland Inc., as it were, to access public services. People have a right to ask that question. As the person who signed it, I accept that the Tallinn Declaration is a declaration. The Senator is also correct that the GDPR is the law and the Bill has been developed to fully reflect that law and all the other data protection legislation on the Statute Book.

  There is nothing in the Bill that is incompatible with the existing provisions of the law. I reiterate that section 12(a) provides that personal data is disclosed for the purpose of the performance of a function of a public body and to avoid the financial and administrative burden that would otherwise be imposed on a public body or another person. It is important to note that this benefits the individual concerned. We should not lose sight of what we are trying to do, namely, to establish a framework to govern what is already occurring in public bodies. We want to make sure the provisions of the GDPR are adhered to by the Government in terms of engagement between Departments and other public bodies. It is on that basis that I cannot support the amendments.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins The Minister of State is correct that there is a lacuna and that a large amount of data sharing is taking place without a clear legal basis. It is good that he acknowledged that.

  On another issue to which I will return on Report Stage, the definitions of "public body" in the Data Protection Act and this Bill are inconsistent. The definition of "public body" in this Bill is very wide. A significant number of potential actors will fall within the scope of this definition. A large number of bodies will share data, which is the reason we need to get this right. With respect, the Minister of State spoke of the Bill having undergone scrutiny but this discussion - the legislative process - is scrutiny. Many Ministers come to this Chamber and many Senators engage with them and give a higher degree of engagement in terms of recognising that this is the legislative process. Our role is not to congratulate Ministers on bringing legislation to the House and agree to rubber-stamp it. It is to ensure we are confident that legislation is as it should be and the proposals being put forward are constructive. I ask the Minister of State to revisit the provisions of this Bill because I do not want a case to be taken against the State in the European Court of Justice on the basis of the grounds on which data may be shared.

  Crucially, the Minister of State referred again to convenience for individuals. This would have been a different discussion, although there may still have been problems, if the Minister of State had spoken about the financial and administrative burdens on individuals. However, the Bill makes no such references but refers instead to the financial and administrative burden on public bodies. Convenience for individuals is not the ground on which data will be shared, although it, too, is included. I am specifically querying the inclusion, as a reason for sharing data, of the financial and administrative burden imposed on public bodies. This will allow any one of the large and growing number of public bodies to refuse a request on the basis that it would be inconvenient. If the goal were convenience for the individual, a mechanism would be provided to allow individuals to abide by the "once only" principle or to allow all their data to be shared to the maximum and in the most convenient way. It would still be the individual's data, however, because none of them belong to the public bodies, they all belong to the individual. The public bodies are sharing data for the benefit of the individual and not for their own benefit and convenience.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan In her last sentence, Senator Higgins articulates the reason we are here. We are doing this for the benefit of the citizen and to make it easier for the citizen to avail of public services and to do so in a legal framework that is compliant with the law. I draw attention to section 9(1)(q), which refers to "any other body specified in an order made under subsection 4".   In other words, while the list of public bodies is long, it is by no means exhaustive. I am sure Ministers will make further amendments to the list in the future. There may be glaringly obvious omissions and this provision will allow the Minister of the day to make an order to add other public bodies to the list. The reason for including this provision is to ensure the section is not prescriptive.

  I am aware of another amendment to be discussed later, as I referred to it in my Second Stage speech. The Bill specifically does not include the commercial semi-State companies for the obvious reason that these companies are in the business of trying to make an annual return and dividend for the taxpayer. It would not be practical to ask them to share information in the format that we are expecting other public bodies to share information. That is the reason for the difference in what is regarded as a public body under this Bill and what may be regarded as a public body under other legislation. It is simply to ensure we have regard to the commercial sensitivities of some of our public companies.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I note that commercial sensitivities are being given great regard. I regret, however, that the same regard is not being given to the data protection sensitivities and entitlements of the individual and the concerns regarding necessity and proportionality, which have not been addressed.

  I put forward amendments to make constructive proposals. I do not like many elements of section 12 but only one stood out as being incompatible with the general data protection regulation's provisions on necessity and proportionality. I will return to these issues. I regret that the Minister of State does not seem to be able to take on board what is a small and constructive proposal. Again, I have only discussed the headline issues but we will return to these matters on Report Stage. Unless we get this right and have some level of engagement on it, this will be used as a ground for a court case. Nobody wants State funds to be spent on defending court cases in Luxembourg, simply because we chose not to improve a section when we were drawing up the legislation.  We can have the discussion on Report Stage. We have an opportunity to get this right and we should endeavour to do so.

  I will move my amendments but will not press them and reserve the right to return to them on Report Stage.

  Amendment, by leave, withdrawn.

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson Amendment No. 7 is in the name of Senator Higgins. Amendments Nos. 7 and 11 are related and may be discussed together by agreement. Is that agreed? Agreed.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I move amendment No. 7:

In page 10, between lines 14 and 15, to insert the following:
"(6) A specified body may not make presentation of a public service card or access to a person’s public service identity the sole or exclusive basis by which a person may confirm their identity in order to conduct a transaction or access a service.".

The amendment is on the public services identity card. Again, there is a fundamental tension in the Bill between sections 6 and 12 and I will address the same issue in each of these sections. The amendment proposes that a "specified body may not make presentation of a public service card or access to a person's public service identity the sole or exclusive basis by which a person may confirm their identity in order to conduct a transaction or access a service." It relates to a concern that has arisen regarding the public services card or, more specifically, the public service identity data set. I am a member of the Joint Committee on Employment Affairs and Social Protection which has considered this issue in detail. Experts in data protection and the Department have made presentations to the committee. We are awaiting a report from the Data Protection Commissioner who is considering the now notorious issue of whether the public services card is compulsory but not mandatory or mandatory but not compulsory. The issue is whether it is appropriate to make the presentation of a public services card and-or public service identity data set number, which are effectively the same thing, the only basis by which a person may confirm his or her identity. A number of challenges have been made to this requirement. One such challenge was made by a pensioner who was denied a pension on this basis and took a challenge. We now know that persons have been denied child benefit or, potentially, denied student grants on this basis. In all cases where challenges have been made, the body in question has backed down because the provision does not yet have legal standing.

  Alternative ways to prove identity is required, specifically for persons who are not happy to share their data in the new public service data identity set, which is under investigation. I acknowledge that many people will choose to use their public services card, which is their prerogative, and many will choose to use the public service identity data set. However, the Data Protection Commissioner is undertaking a section 10 investigation into a number of issues concerning the public service identity data set, including storage, access and whether the data is adequately secure. I have listed only some of the issues that are being considered. In the absence of a clear, strong assurance that the conditions regarding storage are satisfactory and meet the required standards, we should not force anybody to engage with the public services card or make it the only means by which essential services can be accessed.

  My amendments to sections 6 and 12 simply suggest that the public services card and public service identity data set should be a non-mandatory means by which a person may verify his or her identity. They provide that people can use this means and share data for certain purposes. If an individual finds it wonderfully convenient to use his or her public services card, so be it but he or she should not be forced to do so. The amendments provide a reasonable middle way whereby the data set can be used but other options are made available. I hope they will be accepted by the Minister of State.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan These amendments relate to the Social Welfare Consolidation Act 2005 and its relationship to this Bill.

  In the amendment tabled in respect of section 6, the Senator has proposed that the public services card, or the underlying public service identity data associated with the card, cannot be used as the sole basis by which a person may confirm his or her identity to access a service. Similarly, she proposes to amend section 12 to provide that data may be shared as a "non-mandatory means to verify the identity of a person".

  To ensure services are provided to the right person and to protect personal data, service providers must put in place necessary and proportionate requirements for identity verification. The Senator will appreciate that, in light of general data protection regulation, GDPR, and the extreme importance the Government places on the protection of personal data, it is more important than ever that we ensure that providers of public services are certain they are dealing with the correct people.

  The State continues - as is appropriate - to invest significant time, money and effort in the public services card, MyGovID, and the underlying standard authentication framework environment, SAFE, registration process. It is a result of the SAFE registration process that the card and MyGovID are the most robust and assured means of establishing a person's identity when he or she accesses a public service. In this context, it is a matter for each service provider to decide the most appropriate means by which to verify a person's identity. This should be necessary and proportionate to each service. It is not appropriate to place a blanket restriction on how the public services card or public service identity data can be used to facilitate data protection. On that basis, I do not propose to accept these amendments.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins The Minister of State indicated it is not appropriate to impose blanket restrictions, yet that is effectively what is being applied in respect of access to social services. Persons seeking to access social welfare payments and other payments will encounter such a blanket restriction and I am concerned that it will be extended. I am concerned that the interaction between sections 6 and 12 may result in a vast number of the specified public bodies determining that the only basis on which they will deliver essential services will be on the presentation of the public service identity data set, over which there is a question mark, or a public services card.

  I am open and flexible in terms of how my proposal would be phrased or framed. The language used by the Minister of State would be perfect and we could provide that there will not be a blanket restriction or requirement. The decision to roll out the public services card as the only way people can access services is excessive. For example, it has been presented as the only way a person can access the funds required to return to college and a condition for receiving child benefit or obtaining a passport to leave the country. Thankfully, the requirement regarding passports has been changed and I applaud the Minister for Transport, Tourism and Sport, Deputy Shane Ross, for recognising that the provision had no legal basis. I know that was a surprising move. I also note the acknowledgement that insisting that people have a public services card before acquiring driving licences and taking the driver theory test was excessive.

  I will be pleased to withdraw my amendment and accept a Government amendment which exactly captures the need not to have a blanket restriction and to show flexibility regarding the means of identification. Such flexibility is needed. There are circumstances in which identity can be clearly proved. The Data Protection Commissioner is investigating the unresolved concerns expressed by many people, which may well be resolved as a result of this investigation. These people should not be forced to use a system that is still imperfect and requires improvement. It is the type of flexibility described by the Minister of State that we want to capture and I will be happy to accept other phrasing provided it captures this flexibility. It is important that the Bill does not become the instrument that introduces a blanket provision.

  There is a contradiction in wider Government policy because we have repeatedly been told that the public services card is not an identity card.  It is not meant to be an identity card. We do not have identity cards in Ireland and so forth. The Bill seems to cement the practice whereby the public services dataset and associated card will effectively become a national identity card. If that is the route we are taking, so be it, but let us have a debate on it that is honest. I note also that An Garda Síochána is one of the public bodies implicated; there is, therefore, a level of reference.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan There is nothing in the Bill to suggest a reference to the security of the State or anything of that nature would be included in the provisions. It is a matter for each individual Department and agency to decide the most appropriate form of ID. The Senator is entitled to her view, but a lot of what she has said is already the law and included in the Social Welfare (Consolidation) Act 2005. I do not think we are proposing to unwind that legislation.

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson How stands the amendment?

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I am not pressing it, but we will return to it on Report Stage.

  Amendment, by leave, withdrawn.

  Section 6 agreed to.

  Section 7 agreed to.

NEW SECTION

Acting Chairman (Senator Diarmuid Wilson): Information on Diarmuid Wilson Zoom on Diarmuid Wilson Amendments Nos. 8 and 14 are related and may be discussed together.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I move amendment No. 8:

8. In page 10, between lines 23 and 24, to insert the following:
“Data-sharing: meaning

8. (1) In this Act, “data-sharing” means the execution and operation of defined processes for the exchange of information between one or more entities for the purpose of supporting the delivery of statutory public sector services, or the execution of obligations under EU law.
(2) The basis on which data sharing processes may operate include—
(a) a case by case basis for the validation and verification of data,

(b) on a defined batch processing basis for the validation, verification, and updating of specific populations of data, or

(c) as once-off consolidation and integration of disparate data sets to form a new, shared, master data repository.”.

This relates to the question of data sharing. The definition of data sharing in the Bill is quite wide and does not recognise the very different bases on which it may occur. This issue was the subject of considerable debate in considering a very similar version of the Bill in 2014 when there was an extensive Committee Stage debate. One of the key points made in that debate concerned the lack of a clear definition of data sharing. The current definition simply describes some activities, but it does not describe clearly what the basis might be. Some of the bases, for which there is a strong precedent in law, as I am suggesting, include a case by case basis for the validation and verification of data; a defined batch processing basis for the validation, verification and updating of specific populations of data and a once-off consolidation and integration of disparate datasets to form a new, shared, master data repository or a new base registry, as recognised later in the Bill. I am concerned that data sharing is defined in a very loose way.

  The GDPR is very clear that there are certain circumstances in which data may be shared and certain bases on which to do so. It is a complex process and I am worried that the nuances have been lost in a sweeping definition in the Bill, as it stands.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan The Senator is right that the definition of data sharing in section 8 is quite wide. If I came here with a narrow definition, I am sure we would be having a different debate and Senators would be arguing that the Minister was trying to restrict what was covered by the Bill for the purpose of the establishment of data sharing agreements between agencies and was doing so to suit himself. The reason we have not done so is to make sure we capture everything that can be properly constituted as data sharing, which includes the disclosure of information and personal data by a public body to another public body. The definition is wide because it should be.

  The Senator proposes changing the definition of data sharing which is set out in section 8 and used throughout the Bill. It would have a consequential impact on section 18 which specifies the information that shall, at a minimum, be set out in a data-sharing agreement. The purpose of section 8 is to provide a definition of data sharing. This provision does not set out the processes under which data may be shared. In addition, sections 12(1) and 14(1) set out the conditions under which data sharing may take place in the context of national and EU law.

  We have, as I said, set out a wide definition of data sharing to ensure all forms of data sharing that may be carried out by public bodies will be captured and, therefore, regulated by the legislation. If the definition was limited, as the Senator is proposing, it would mean that other forms of data sharing not captured by the proposed definition would not be subject to the governance and other provisions of the Bill such as the limitations on processing set out in section 12 and the requirements for formal data-sharing agreements and associated consultation, scrutiny and transparency provisions, as I mentioned. I do not think that is what the Senator intended.

  Section 18 specifies the information which shall, at a minimum, be included in a data-sharing agreement. Among other things, it provides that public bodies must set out the purpose, function and legal basis for sharing and processing the data concerned and specify what data are to be disclosed and how they will be processed. Notwithstanding that the requirements for the content of the agreements are comprehensive, section 18(2) gives the Minister the power to prescribe additional information that must be included in a data-sharing agreement, if required.

  The Senator’s amendment to section 18 is very technical. People want to know what data are held and why, what they are being used for, for how long they will be held, who is going to use them and what internal processing works will be used. I appreciate the Senator's comments, but, on reflection, her amendment would overly complicate the agreements we have set out in the provisions of the Bill. On that basis, I encourage her to consider withdrawing it.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I recognise that this relates to sections 8 and 18. As it stands, section 18 provides that the legal basis must be set out. In terms of the subsection, there is a key concern about whether Ireland is really reflecting the spirit of where we are in data protection regulations. Our job is not to make it really simple. There is a need for a level of clarity on why it is happening and the basis on which it is happening. Is it on a case by case basis? Is a person's data part of a large cohort of data being processed at the same time? Are they part of a dataset or has the person been picked out individually? Is it happening once or multiple times?

  My amendments are not exclusive. They include the words "or another basis detailed in the agreement". I make it very clear that while I list the recognised primary bases on which it will happen, I am not making them exclusive or exclusionary. Other bases would be allowed for.

  The point is that we need to make it really clear for people. It is one of the rules of the GDPR that information should be made as clear as possible for the individual. That is not the same as making it as simple as possible by simply saying "we are processing your data." It is about making the rationale clear as to why it is happening. That is the concern that needs to be addressed. I am not sure whether, under the current provisions, an individual who looks at a data-sharing agreement covering his or her data will clearly understand how or why it is being done. I appreciate that data-sharing agreements will be published.

  Returning to amendment No. 8, the definition states "data-sharing means the disclosure of personal information including personal data by a public body to another public body". Down the line, we will see a real concern expressed by individuals. It might not happen now or while the Bill is going through, but there will be a concern when people realise the wide parameters in the sharing of individual data by public bodies.  We need to balance appropriate action with appropriate transparency and clarity for the individual who needs to know the rationale for sharing his or her data. Again, the current provisions do not achieve this. I will withdraw amendments Nos. 8 and 14.

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan We will deal with amendment No. 14 when we get to it.

  Amendment, by leave, withdrawn.

  Section 8 agreed to.

NEW SECTION

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan Amendments Nos. 9 and 10 are related and may be discussed together by agreement. Is that agreed? Agreed.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I move amendment No. 9:

In page 10, to delete lines 34 to 38, and in page 11, to delete lines 1 to 30 and substitute the following:
"9. (1) In this Act, "public body" means—
(a) a company (within the meaning of the Act of 2014 or a former enactment relating to companies within the meaning of section 5 of that Act) a majority of the shares in which are held by or on behalf of a Minister of the Government,

(b) a subsidiary (within the meaning of section 7 of the Act of 2014) of a company referred to in paragraph (a).".

We discussed this amendment briefly. There are entirely different definitions of public body in the Data Protection Act and the Bill before us. The definition of public body in the Bill includes some elements of the definition in the Act and some elements of what are described in the Act as "public authorities". A potential tension arises because certain entities, including An Garda Síochána and a number of other bodies, are described as public authorities in the Act but as public bodies in the Bill. That conflict is a concern.

  It is not simply the case that a public authority and public body have equivalent meanings because the Data Protection Act includes separate definitions of "public body" and "public authority". The definition of the former in the Bill takes a little from column A and a little from column B, which creates confusion. We will have circumstances in which a concern or ambiguity will arise about whether an entity, such as An Garda Síochána, is considered a public body or a public authority. As we can imagine, the Data Protection Act and this Bill will closely interact and are naturally linked because they substantially overlap. I expect many cases will arise in which both are invoked, yet they have different definitions.

  I will not press the amendment, which is an attempt to alert the Minister of State to this issue. Amendment No. 9 would take the definition of a public body from the Data Protection Act and make it the definition in the Bill. I recognise that certain groups and entities the Minister of State wants to absorb into the Bill will not be captured by the amendment, but this is one way of making the Bill and the Act compatible. I am open to other proposals the Minister of State or Department may have on how to make them compatible.

  It creates an inappropriate legal ambiguity when the House passes legislation featuring certain definitions and a few months later it is proposed that we pass legislation featuring a completely different definition which clashes with the original definition in the same area. I am open to proposals from the Minister of State on how to resolve this issue and I hope he will put forward Government amendments to address it. Amendment No. 9 is one way of addressing it, albeit one which I recognise is quite blunt as it proposes to take the public body definition from the Data Protection Act and put it into the Bill. If the Minister has other suggestions I am very open to them.

  The Minister said that the definition of public body is very wide. We should bear in mind that these bodies may share data with each other. As the Minister said, subsection (q) refers to any other body which a Minister decides to make into a public body. Any body, public entity or company could become a public body. We need to have firewalls in that respect. In cases where the Minister designates as a public body under this section a body whose activities and functions do not relate to the delivery of services to the public under an agreement with the public body, the Minister should publish regulations on suitable and specific safeguards to protect against inappropriate access or data shared under the Act within the body. For example, if a company which is under contract to the State to deliver one kind of service and, on that basis, is given access to a data set for that purpose, we need to ensure suitable safeguards are in place if a commercial section exists within the same organisation. If an entity has other clients besides the State, there must be clear safeguarding of data shared by any public body with this entity, that is, the public body for the purposes of the Bill, which may be involved in commercial, State and public activities that may serve public and private purposes.

  I am not attempting to be prescriptive and I will leave space and discretion to the Minister of State to set out the regulations. I have used the same wording we used for the Minister for Justice and Equality in regard to the general data protection regulation, namely, "suitable and specific safeguards". I expect everybody will agree there should be some safeguards in place. If we are to allow data to be shared by a Department with other fully public entities or partly public and private entities, rules will be required on how we protect such data.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan As I said, the reason there is a wide definition of public bodies in the Bill is the same reason to which Senator Higgins referred. If I excluded the Health Service Executive, an education and training board, An Garda Síochána, the Commissioners of Public Works or another body, I would be pilloried and people would say it was more of the same and the Government was covering something up.

   If I did not include any other public body specified under section 9(4)(q), I would also prevent any future public body which has not been established from being included in the Bill. That is why the definition is as wide as it is. Section 9(4) states that:

The Minister may, at the request of a body that would not otherwise be included in the definition of “public body” in subsection
(1) and with the consent of the Minister of the Government in whom functions in relation to that body are vested, by order designate that body as a public body where—
(a) that body is financed wholly or partly, whether directly or indirectly, by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government, and

(b) the Minister is satisfied that the principal activity of the body is the delivery of services to the public under an agreement with a public body.

This covers circumstances in which there is part funding or whole funding.

  I completely understand the issues relating to bodies and authorities. The term "authority" is used more in European Union law than in Irish law. Irish law has generally and historically referred to bodies and it is on that basis that references are to "public bodies". The wording in the amendment would mean the Bill would only apply to those public bodies established under the Companies Act 2014. An unintended consequence of that would be that the Bill would not apply to the Civil Service, local authorities, the HSE, the Garda, education and training boards and several other bodies.

  As I said when I introduced the Bill in the House last week, it is the Department's intention that the Bill should apply to as wide a number of public bodies as possible. At a minimum, Government Departments and offices, local authorities and the HSE should be able to share data under the Bill. They already do so, albeit in a legal vacuum which needs to be addressed. It is on that basis that we are introducing the Bill. If further bodies need to be included in the legislation in the future, subsection (4)(q) will allow a future Minister to make the relevant additions, as necessary.

  I should clarify that the primary reason the definition of a public body is different in the Bill compared with the definition in the Data Protection Act is that the Bill needed to specify a legal person who can sign the data sharing agreements. As no similar requirement applied in the case of the Data Protection Act, a different approach to the definition was necessary and was used. The two definitions do not have to be identical because the processes are completely different and the differences reflect the different requirements of both pieces of legislation. In any event, the Data Protection Act and GDPR continue to apply to all public bodies or authorities within the scope of the Bill.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins When we speak of unintended consequences, this is exactly what I am seeking to avert. Entities are listed in two lists under two different definitions.  I recognise that the Minister of State needs to have a different definition in the Bill but I suggest that, perhaps in the section on definitions, he seeks to clarify that, for example, the definition of public bodies in the Bill relates to the public bodies and the elements thereof specified in the Data Protection Act. There needs to be some clarity because entities are defined differently in the Bill and the Act. It would not be insurmountable for such direction to be given. In terms of unintended consequences, it would be better to address the issue than to ignore it and hope that no conflict arises between the Bill and the Act. The issue could be addressed and dealt with.

  The Minister of State did not alleviate my concern in regard to bodies wholly or partly funded by the State. In fact, he confirmed it. As he stated, the Bill allows him to designate as a public body entities that are wholly or partly funded by the State. My concern regards entities that are partly funded by the State and also funded by private entities, commercial interests or other actors. I ask the Minister of State for his perspective on regulations, guidelines or safeguards in respect of entities which receive State funding along with other funding. Again, I have not sought to be prescriptive in terms of what the regulation or safeguard should be, but it is important that we allow space in the Bill to ensure that only the State-funded actions of an organisation or entity partly funded by the State can access public data which it receives.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan The GDPR and the Data Protection Act and the Bill are different because the main thrust of the Bill is in regard to data sharing agreements. As I stated, a person with legal qualifications is involved in the signing of those agreements and that is one of several differentiating factors between the Bill and the Act to which the Senator referred.

  In regard to the wide remit to which the Senator also referred, section 9(3) of the Bill provides that the Minister would have the power to exclude a public body if required to so do. If compliance with the Bill were too onerous or not required for a particular public body, there is provision in the Bill for it to be excluded.

  On bodies which are wholly or partly funded by the State, I give the example of local authorities, which fund a significant element of their work from resources they generate and also receive resources from the State. Some of their activities are wholly State-funded while others are partly funded by the State. However, they are public bodies; the bulk of their work is directed at serving the public. The intention is to cover the public bodies referred to in the definition for the purposes which I have already set out. I hope I have clarified the difference between the Data Protection Act and the Bill.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I understand the reason for the differentiation but am suggesting that that must be made clear in the legislation. It does not really address the issue of entities being wholly or partly funded by the State because although the Minister of State gave the example of local authorities, another example is a company providing homecare services and which is partly funded by the State and needs to have data shared with it for the purpose of its activities on behalf of the State. However, it may also be a commercial company. The question is whether data, potentially in respect of vulnerable individuals, that might be provided by the State to such a company would potentially be usable by it in its private or commercial activities. Such data may include health data, which is a special category of information, and that would raise further questions in terms of what is appropriate. That is the key question. Homecare may not be the right example but I am highlighting concerns in regard to commercial companies rather than local authorities. I am happy to park the amendment. It seems that the Minister of State does not yet have an opinion on the question of safeguards and regulations but I believe it needs to be addressed. Does the Minister of State plan to put in place safeguards in regard to entities which are partly publicly-funded and partly commercial entities in order to ensure that public data is used only for one purpose? It is a very clear question.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan Section 18 deals with the issue of safeguards. It contains several requirements which restrict further disclosure of data, including that security measures, retention requirements and how the data will be deleted when they are no longer needed must be specified. In addition, as I stated, the data protection commission may use its enforcement powers if sharing occurs outside the terms of the agreement.

  On public bodies and partially publicly-funded bodies, section 9(4) states: "The Minister may, at the request of a body that would not otherwise be included in the definition of “public body” in subsection (1) and with the consent of the Minister of the Government in whom functions in relation to that body are vested, by order designate that body as a public body."

  In a case such as that to which the Senator referred, the Department of Health and the Minister for Health would have to consent to the company being designated a public body. That safeguard is built in because, as I stated, we do not know what may happen in the future. The Bill is not exhaustive in that regard because we do not know what public bodies may be constituted in the future. However, we have made provision that the line Minister who takes responsibility for the Vote from which the funding would come – the Minister for Health in the Senator's example – would have to sign off on the designation. That power will not vest in me or my successor but, rather, would be the responsibility of the line Minister.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I will not press the amendment. Section 18, on which the Minister of State touched, could be strengthened to address this issue. I hope I will be able to engage with him on how section 18 and the content of the data sharing agreement could perhaps make the protections more robust and be a way of approaching that issue.

  Amendment, by leave, withdrawn.

  Amendment No. 10 not moved.

  Section 9 agreed to.

  Sections 10 and 11 agreed to.

SECTION 12

  Amendments Nos. 11 and 12 not moved.

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan Amendments Nos. 13 and 15 to 17, inclusive, are related and may be discussed together.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I move amendment No. 13:

In page 15, line 4, to delete “body.” and substitute the following:
“body, and

(f) the sharing of personal data is necessary and proportionate.”.

Amendments Nos. 13 and 16 relate to necessity and proportionality, which are the guiding principles that underpin the GDPR. Again, this is about making clear that that test is being applied. In the Data Protection Act, it is clear that it should be applied in many cases and that was reinforced in several sections. There was strong agreement across the Oireachtas, from colleagues in Sinn Féin among others, to ensure that necessity and proportionality be made visible as a consideration. In regard to page 15 line 4, I suggest the insertion of reference to the necessity and proportionality test within the section on directions regarding personal data. I also suggest reference hereto on page 18 in regard to the content of the data sharing agreement, which is perhaps the most important place for it. Necessity and proportionality must be the underpinning consideration in a decision to share data between public bodies.  There is a danger whereby the ease and smoothness of data sharing becomes the norm when we share data. Necessity and proportionality need to be applied consistently, and this is very clear in the general data protection regulations to every purpose to which data is put. It may be that every purpose meets that test, but necessity and proportionality must be applied. There is a concern in the establishment that these data-sharing agreements would bring in a level of complacency. Consider the Road Safety Authority, for example, and another entity - albeit semi-State agencies are excluded. I refer to cases where public bodies from this proposed wide list have established an agreed data-sharing agreement, even between the driver theory test section and the Department of Transport, Tourism and Sport, for example; it may cover everything. It is important there would be a reminder that every time data is shared and every decision that is made to share data must meet the tests of necessity and proportionality, and that the purpose to which data is being used is constantly put under that scrutiny.

  This data belongs to the individuals in many cases. This is personal data that belongs to people and they need to be assured, as was said in the previous debate about rationale on Second Stage, that there is always a rationale for why their data are being shared, and that it is always necessary and proportionate. This does not mean a huge or exhausting process every time; it just means that the test applies. This is very clear under the GDPR.

 I put it to the Minister of State that we are potentially talking about hundreds of data-sharing agreements because it covers a very large number of public bodies, and the Minister of State has quite rightly said it is a growing number, which are all sharing data with other public bodies. This is a large number of data-sharing agreements being established. If these data-sharing agreements are the key architecture of this Bill and how our State plans to share our information, then necessity and proportionality need to be built in at ground level. This is why I urge the consideration test. I have included it in two places, but the particularly important aspect is necessity and proportionality within the data-sharing agreement section.

  The other two amendments that have been added to this section of the debate - I probably would not have added them but they are here - are around privacy sharing and data protection impact assessments. I recognise that a data protection impact assessment is not always needed, necessary or relevant. What is always needed and relevant, however, is a demonstration of consideration as to whether an assessment is needed or not. Although I had considered it in this section, I have not suggested that a data protection impact assessment would always be conducted, because I realise there are many cases where it is not necessarily pertinent. It is reasonable, however, to propose there would be consideration of whether it is needed or not. This is the level, namely, that it simply requires a demonstration that whether or not a data protection privacy impact assessment is needed, it has been thought about.

  Has amendment No. 17 been included in this group of amendments under discussion?

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan Amendments Nos. 13 and 15 to 17, inclusive, are under discussion.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins Amendment No. 17 is a technical amendment. It is clear. There is a little bit of ambiguity here. I regard it as a different issue and therefore a different discussion, but it relates to the ambiguity around the lead agencies and data sharing, and where that stands. Consider the situation where there are data controllers within two public bodies, for example, in the context of discussion about lead agencies. If an individual person has a concern there is a question over who he or she should go to. We do not want a situation where individuals are being sent from pillar to post.

  The European Court of Justice ruling in 2015 made it very clear that both of the data controllers are liable. We cannot have a situation where one data controller says, "Well they were the lead agency so do not look to us". Both of the data controllers are liable. While a lead agency may be a preferred point of contact, and while the lead agency may take the responsibility for outreach and so on, the amendment is important because it makes clear that this section of the Bill outlines how individuals may engage with the lead agency "without prejudice to and does not limit the rights of a person as a data subject in respect of any or all data controllers in a data sharing agreement". This makes it clear and ensures that Ireland is compatible with the European Court of Justice.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan With regard to whether or not we are being complacent, it is important to make a few points. The Senator spoke of the tests for necessity and proportionality. These are absolutely necessary and they are happening currently. Data is being shared at the moment, which is necessary and the agreements are necessary. They need, however, to have a legal basis, and hence this Bill.

  Consider what is included in the Bill to cover proportionality, complacency and all the checkpoints and all the safeguards. There is public consultation and publication online. I am aware there is a later amendment on the timeframes that are allowed and whether or not there can be greater scope for that. This is certainly an aspect I am very amenable to.

  On the agreements themselves, there is scope around how the agreements are drawn up, who the lead agencies are and who the base registry holder is. Given that this is a data-sharing Bill that will cover public bodies we have also taken a lot of time to make sure the governance board would have the proper people to see that everything is done in accordance with the Bill. The data commissioner will be in the background and will have oversight on the laying of the agreements. The agreements will have to be laid before the Houses of the Oireachtas. The Minister will also be involved.

  Senator Higgins alluded to hundreds of agreements. I believe there will be thousands of data-sharing agreements that will need to be registered. That will tell us the level of sincerity and commitment the Government has on the issue. This will take quite a considerable amount of resources. We shall do this to make sure the public has confidence in us to mind, supervise and use the data for the purpose for which it is collected. I agree that this has not always been the case. The Bill is being brought before the House because this lacuna in the law needs to be cleared up.

  With regard to the lead agency and from the perspective of individuals who could be bounced around, as the Senator has said, "from pillar to post", the Bill makes it very clear that the lead agency must deal with the individual's request. The agency cannot try to send the fool further or send people around the houses from Billy, to Jack, to Jim. It does not prevent the citizen from going to the data commissioner. It also does not prevent the individual from using the provisions available to him or her for consultations to have his or her views heard. Given that the agreements will be laid before the Houses of the Oireachtas there will be opportunities for Deputies and Senators to make observations also. In fairness, there are an amount of safeguards included.

  Discussion on amendments Nos. 13 and 16 went together. I want to refer to amendments Nos. 15 and 17, which are related. Amendment No. 15 proposes that a public body should, "demonstrate a consideration of whether there is a need for a data protection impact assessment". As I have said, the Bill must comply with the GDPR. Article 35 of the GDPR sets out when a data protection impact assessment must be carried out. It is in the law already. The Bill provides, at section 18(1)(h), that where a data protection impact assessment has been carried out, a summary of the assessment must be provided in a schedule to the agreement. This is in accordance with the guidance on data protection impact assessments issued by the European Commission’s Article 29 data protection working party. The Senator’s amendment proposes an additional requirement on public bodies that they would provide an explanation in the data-sharing agreement of what they considered in deciding whether or not to carry out an assessment. This is not required under the GDPR and I do not consider it appropriate to oblige public bodies to go further than the GDPR in this regard.

  Amendment No. 17 concerns the role of the data controller as specified in section 20 of the Bill. This refers to lead agencies.  This section requires one of the parties to the data-sharing agreement to be designated as the lead agency responsible for carrying out the functions specified in the section and elsewhere in the Bill. It sets out a number of functions that the lead agency will have, including dealing with requests made by data subjects to exercise their rights under the GDPR.

  As I have mentioned a number of times, data sharing that takes place under the Bill must comply with the GDPR which is being transposed. The GDPR sets out the rights of data subjects and this section of the Bill does not override those rights; it serves to extend them by providing that the lead agency is obliged to deal with requests made by data subjects to exercise their rights under the GDPR. In other words, the Senator will not be sent around the houses.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins While someone might not be sent around the houses, which I understand from the reference to the lead agency - in fairness to the Minister of State, he has affirmed it - it would be useful to affirm it in the Bill to be clear that it does not in any way prejudice someone's right to call to each of the relevant houses.

  Having heard what the Minister of State had to say, I almost reinforce the point about necessity and proportionality. Necessity is not about the need at the very beginning to have a legal basis because we know that we are operating illegally. I am surprised that there are not more public alarm bells about the fact that the State is not operating with a legal basis for what it is doing, but that is not the necessity. The necessity and proportionality test applies each time one uses the data. It is not about whether in general we need data protection agreements; rather, it is about each data-sharing agreement and how it applies. There is a real concern in that regard. In fairness, we are describing that the public will have a chance, but at the same time we are being told that there will be thousands of such agreements. It is not the job of the public to test data-sharing agreements for necessity and proportionality. It is not the job of the Data Protection Commissioner to do so, except in the general sense of oversight. It is not the job of the data governance board, to which we will come. It is the job at foundation level when two public bodies are agreeing to share personal information. They must be satisfied at the starting point that it is necessary and proportionate. It is not for people to catch it down the line. It is not an issue of backstops. It is not for the public who already put huge work into guarding data protection. I applaud many individual citizens who have made great efforts in that regard. It is for the public bodies who are making the decision to share data between them. What I am saying is that it needs to be in that bit of the Bill. I do not think it would take anything from the Bill and its operation, but it would add a certain assurance for the public. I, therefore, urge the Minister of State to strongly consider taking it up on Report Stage. I refer simply to mentioning necessity and proportionality and making it clear that they will be key considerations for the two public bodies involved in respect of the thousands of agreements that will be happening.

  I will not press the other amendments at this point. On the question of data controllers, the Minister of State made it clear in his narrative and it would be nice if it was clearer in the Bill. To be clear; my amendment does not state they have to state what they considered; it simply states they have to have considered.

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan We will get to the amendments in order.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan The kick-off for the agreements is identified in section 55(1)(c), which states: "a statement from the data protection officer of each of the proposed parties to the effect that the data protection officer concerned has reviewed the proposed agreement, and is satisfied that compliance by the proposed parties with the terms of the proposed agreement would not result in a contravention of data protection law". In other words, on the point made by Senator Alice-Mary Higgins about who would start the process, the data protection officer in each of the public bodies must state they are satisfied that the agreements are in order. After that, all of the other trickle-down measures such as the data governance board and the Data Protection Commissioner, the Oireachtas and consultation will kick in.

  It terms of necessity and proportionality, it is not just the fact that it is necessary because it is ongoing. It will be necessary and proportionate because the law will be enacted; therefore, the necessity will come from the very fact that when public agency A is sharing information with public agency B, it will have to satisfy itself that a data-sharing agreement is necessary and it will be bound by the Bill which I hope will become an Act. It is inherent in the Bill, the very tenet of which is to do exactly what is necessary and proportionate. We do not have either.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I appreciate the frank acknowledgement by the Minister of State. I am happy to consider section 55(c) which is about public consultation. The Minister of State referenced the statement the data protection officer might make. It would be useful for the public if the data protection officer did not simply say he or she was satisfied but if he or she were to indicate under the section in a published statement that he or she was satisfied in terms of necessity and proportionality specifically. If a Government amendment were to be introduced to that effect, I would be happy to withdraw mine. I imagine it would be really useful for the public if a specific reference to necessity and proportionality were part of the statement they were given from the data protection officer.

  Amendment, by leave, withdrawn.

  Question proposed: "That section 12 stand part of the Bill."

Senator Paddy Burke: Information on Paddy Burke Zoom on Paddy Burke When one Department has information to share with another, can all Departments hold the information or does it go back to a register and will they have to apply again to obtain the information from the Department that supplied it originally?

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan No, there will be one base register. Every time information is shared between Department A and Department B, there will be an agreement. If it is being shared between Department A and Department C, there will be another agreement.

Senator Paddy Burke: Information on Paddy Burke Zoom on Paddy Burke Will there be an agreement every time?

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan Yes.

  Question put and agreed to.

  Sections 13 to 17, inclusive, agreed to.

  Amendments Nos. 14 to 16, inclusive, not moved.

  Section 18 agreed to.

  Section 19 agreed to.

  Amendment No. 17 not moved.

  Section 20 agreed to.

  Sections 21 to 36, inclusive, agreed to.

  Amendment No. 18 not moved.

  Section 37 agreed to.

  Sections 38 to 41, inclusive, agreed to.

SECTION 42

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I move amendment No. 19:

In page 33, line 35, after “registry” to insert the following:
“other than where that information may be sought or collected on the basis of direct consent of the person or data subject”.

This potentially is one of the more sinister aspects of the Bill and it would be a source of real concern if it was not amended.  Under section 42, there is an obligation to use the base registry so that when personal data which has been gathered on individuals is in a base registry public bodies must go to the base registry. This effectively precludes public bodies from asking individuals for their data. I recognise that there are situations in which public bodies might be more appropriate where consent is not the appropriate legal basis, particularly in situations with vulnerable users. However, this does not simply state that there are certain circumstances under which a public body would go to the base registry and use that as the legal basis. This literally forbids public bodies from engaging in other ways with citizens and individuals in the public and there are many public bodies where that data is on a base registry. For example, someone cannot necessarily be asked for his or her address. Many public bodies provide services that need to be done on a legislative basis and there are other cases in which consent is the appropriate mechanism. It may be the difference between being included in a Christmas raffle list as well another list. At the moment somebody cannot be asked if they want to be in the Christmas raffle list as well as whatever else; their data has to just be taken from the base registry. The provision precludes public bodies from having the discretion to recognise that there are certain aspects of their business whereby asking people might be the appropriate route.

  My amendment simply states "other than where that information may be sought or collected on the basis of direct consent of the person or data subject". I am simply introducing the option for a public body, in some of its dealings with people, to occasionally use consent. That is the key concern there. I recognise that there are certain situations or circumstances where it is not appropriate but this basically forbids the use of any other method or means of engagement. It must be borne in mind that there is not a right to be informed on this. If a person's name or address is in the base registry, he or she cannot be asked. If that person's name, age and address and any other information are in the base registry he or she cannot be asked for that information; it has to be taken. That seems to me to be excessively onerous on public bodies and to be an overreach.

  I regard my amendment as excessively mild and I may revisit some issues on Report Stage. I have genuinely come into this on Committee Stage with what I thought were achievable and reasonable amendments. If progress does not come in any of these areas then I will come back with amendments for my ideal Bill and what it would look like. Right now, at a minimum, we should allow public bodies, in the circumstances where it is appropriate and consent is an option, to have the option of using consent. Part of that is the relationship that public bodies have with those clients and users of their services. Part of it is the iterative process such as in the case of people who are accessing the data of vulnerable people. Sometimes the dynamic of repeatedly asking questions is part of the relationship building that leads to the effective functioning of a public body and an effective delivery of a service. The Minister of State might indicate if he is willing to give that flexibility because I am worried that we are cutting the data subjects out completely from the operation of public services.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan We are not cutting anyone out of it. There is nothing in the Bill that precludes the public body from engaging with the citizen. Public bodies are obliged to use the base registry as a source and as a result of that move on to the agreement. All of the safeguards I referred to a while ago regarding leave agencies, base registries, all of the setting out of agreements, submissions and consultations are there for that purpose. There is not in any way an intention to abuse the data set.

  The Senator referred to effectiveness and efficiencies. The flip side of that can be taken also in the delivery of the public service. It is more efficient to ask the question once. That principle is accepted. It is a once only principle where if a person is availing of a service, it could be inferred that there is consent already contained in that by virtue of the fact that they have presented themselves to look for that particular support or service from the State. If it is an efficient use of the State's resources to have all of this data accessible once in a legally binding agreement which is supervised by the Data Commissioner, subject to audit, scrutinised by a data governance board, laid before the Oireachtas, open to public consultation and amenable to what we are already bound to by the general data protection regulations, GDPR, then it certainly is proportionate and is an efficient and effective use of the data set.

  It must be borne in mind that this is already happening. We are trying to put a legal basis on it at the moment and what we are doing here is proportionate, reasonable and having clear regard to making sure that there are safeguards in place that are tested and can be tested.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I am concerned that there seems to be a misunderstanding about the word "proportionate". It is not a once-off test on necessity and being proportionate-----

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan I never said it was.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins -----but I am saying that each individual thing that happens requires the test of necessity and proportionality.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan It is there.

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins Each individual thing that happens has a test of what is the appropriate way. Things will happen between citizens and public bodies, where consent is an appropriate mechanism. Right now the Bill states clearly that the public body shall not collect or use such information for that purpose from a source other than the designated base registry. That source includes the individual, the data subject. Public bodies are being precluded from seeking information from a data subject on the basis of consent. The Minister of State said consent can be inferred. It cannot. In many of the functions consent is not inferred and is not even relevant in the case of some functions of public bodies but there are other functions of public bodies where consent is relevant and is required under the GDPR.

  The Minister of State is creating a tension because of the once-only principle he has described. It is in the Tallinn Declaration but the once-only principle has no legal status compared to the general data protection regulation. It is nice as an aspiration and it is there as a goal but do not let us pretend that this is the overarching principle which trumps every single other part of our law and of European law. We are getting excessive emphasis on it. On that basis there could be a base registry where people give their personal data once, they have one point of contact ever and then thousands of data sharing agreements are put in place and that individual does not have engagement with any part of the State again because all of the public bodies share data. There is a danger there. That is excessive. I understand that the Minister of State wants efficiencies and there is great scope for that but it needs to be balanced with transparency, appropriate checks and balances and the individual data subject's rights in engagement with the State. That balancing is skewed in this Bill at the moment. I have not said not to use this in any case. I am saying to allow public bodies to recognise that there are points whereby checking in again would be good because right now they are not even allowed to check in again if that information is on a base registry. That is a concern because they cannot provide transparency to citizens in that way at the moment. We could end up with a very distant State and set of operation of public bodies which is contrary to effective functioning and a sense of engagement.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan I am at the risk of repeating myself. I never said the-----

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan The Minister of State has nine seconds because I have to conclude at 8 p.m.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan -----Tallinn Declaration was the law. I have said umpteen times that the GDPR and the existing legislation on data protection is the law.  That is what we have regard to.

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan It is now 8 o'clock.

Deputy Patrick O'Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan We never said that the Tallinn Declaration was the overriding principle and I am blue in the face from saying so.

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan I ask the acting Leader to report progress.

Senator Paddy Burke: Information on Paddy Burke Zoom on Paddy Burke Can we deal with the amendments that have been discussed?

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan Amendment No. 19 is the only amendment that was discussed and it was one of the five amendments.

Senator Paddy Burke: Information on Paddy Burke Zoom on Paddy Burke I wonder could the Senator propose-----

Senator Alice-Mary Higgins: Information on Alice-Mary Higgins Zoom on Alice-Mary Higgins I withdraw my amendment.

  Amendment, by leave, withdrawn.

  Section 42 agreed to.

  Section 43 agreed to.

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan I propose that we stop now because there are further amendments still to go.

  Progress reported; Committee to sit again.

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan When is it proposed to sit again?

Senator Paddy Burke: Information on Paddy Burke Zoom on Paddy Burke At 10.30 tomorrow morning.

Acting Chairman (Senator Gerry Horkan): Information on Gerry Horkan Zoom on Gerry Horkan Is that agreed? Agreed.

  The Seanad adjourned at 8 p.m. until 10.30 a.m. on Wednesday, 27 June 2018.


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