The Minister for Justice, Home Affairs and Migration, Deputy Jim O'Callaghan, and his officials are very welcome here this afternoon. Amendment No. 9 has already been discussed with amendment No. 8.

I move amendment No. 9:

In page 8, between lines 21 and 22, to insert the following:

“(1A) A member of Garda personnel who contravenes section 43C(1) shall be guilty of an offence.”

I wish to speak very briefly to the section. The Minister did not accept the proposed introductions of offences in terms of the amendments but will he clarify what consequences he sees playing out in relation to the inappropriate uses of these technologies and what examples have been given in relation to that?

As I said yesterday, I think it would have been inappropriate to have made it a criminal offence for someone to inadvertently and unintentionally breach the code of practice or the basis, in Part 6A, upon which on the use of recording devices is set out. Notwithstanding that, there will be a code of practice issued. When An Garda Síochána is complying with and performing something in accordance with the code of practice, there will be disciplinary and performance consequences in respect of any failure to do so. The Senator will know that I introduced and signed disciplinary regulations, conduct regulations as they are called, and performance regulations. If it is an inadvertent breach or if somebody fails to comply with the code to a minor extent, it will be a matter for the superiors of that garda to determine how that should be dealt with. We need to recognise that in all walks of life, politics included, people can make mistakes. There can be inadvertent errors made, and I have done many of them in my life. We have to ensure that the response to that is proportionate to the consequence of the mistake and, indeed, the level of intention behind it. To answer the Senator's question directly, the response to any breach of the code or failure to comply with Part 6A will be in the realm of performance and disciplinary matters or conduct matters, to be given effect by the Commissioner.

The concern is that those tend to be internal processes and perhaps more opaque for the public, and it is the public who may be negatively impacted by the improper actions. This is part of the context. It is not solely around performance and managing a team. This is probably where the concern is coming from and why we look for-----

If it is a particularly egregious and deliberate breach, there is the capacity to refer that to Fiosrú to investigate misconduct by a member of An Garda Síochána, if it is considered serious misconduct. It is not just exclusively an independent, internal process. There is the capacity to be investigated by Fiosrú.

I move amendment No. 10:

In page 9, after line 36, to insert the following:

“Pilot Programme for Biometric Categorisation Technologies

10.The Minister shall ensure that no national deployment of biometric categorisation technologies shall occur until a pilot programme has been completed and independently evaluated, including assessments of—

(a) accuracy and error rates,

(b) discriminatory impacts,

(c) compliance with data protection law, and

(d) impacts on privacy and fundamental rights,

and the evaluation shall be laid before both Houses of the Oireachtas.”.

As has been done with other technology, including body cams used by gardaí, it is crucial that prior to deployment across the State, there is a pilot programme that will evaluate the accuracy and effectiveness of the technology as well as identifying any issue that may need to be addressed prior to its wider roll-out.

Senator Tully is correct in identifying that when it comes to the roll-out of new technology, sometimes pilot programmes are used. For example, a pilot programme on the use of tasers is ongoing at present in certain sections of An Garda Síochána. Similarly, body cameras are being used on a pilot project basis in Waterford, Limerick and Dublin. The benefit of pilot projects is that they show the efficacy and usefulness of a new type of technology. I am pleased to say that in terms of the impact of the body cameras and indeed use of tasers, the pilot programme confirms the need for and the importance of having them.

I would be concerned, however, about including within legislation a specific statutory requirement that the pilot project take place. That did not happen in respect of body cameras or tasers. The reason it did not happen is because these are operational matters and it is really a matter for the Garda Commissioner to determine whether a pilot project is appropriate. In many instances, An Garda Síochána will look to its European counterparts during the procurement process as these types of tools are in use in other EU states. There is an awareness of this technology in terms of its use by other police forces, however, it is not being used directly in on-street policing of the public. As I spoke yesterday about biometric analysis, it is an investigative tool that can be used by An Garda Síochána. I cannot accept the amendment. I am not saying that there might not necessarily be a pilot programme but that is a matter for the Garda Commissioner as it is an operational matter and it would be inappropriate to have such a provision in statute.

Amendments Nos. 11 to 13, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 11:

11. In page 10, between lines 18 and 19, to insert the following:

“(ba) clear and specific limits on the circumstances in which biometric analysis or biometric categorisation may be used, including prohibitions on use for general surveillance, population-level monitoring, or speculative searches,

(bb) objective thresholds and evidential standards that must be met before any biometric analysis may be initiated,

(bc) safeguards to prevent disproportionate or discriminatory impacts, including mandatory risk assessment procedures,

(bd) technical and operational parameters governing accuracy, reliability, and error rate thresholds,

(be) mandatory documentation, authorisation procedures and audit trails to ensure accountability and prevent misuse,”.

On amendment No. 11, it is not satisfactory that so much of this legislation is left to a code of practice. It moves away from the sphere of democratic oversight. Because so much is left to the code of practice, there is lack of detail on safeguards, data limits, oversight and practical rules for device use. The section on the code of practice gives too much discretion to the Garda Commissioner, who drafts, amends and controls the consultation process for codes that regulate Garda powers. Safeguards are not fixed in legislation to leave crucial limits on biometric use retention and access. These additions strengthen the requirements in relation to the code of practice by requiring strict limits, objective evidential thresholds, anti-discrimination safeguards, technical accuracy standards and full authorisation ensuring biometric powers remain properly controlled, transparent and accountable.

Amendment No. 12 is a complementary amendment setting out what should be covered by the code of practice and stipulating that democratic oversight requires that the code of practice be laid before the Oireachtas covering safeguards that were outlined previously.

Regarding amendment No. 13, five years is too long to wait for the first review of the code of practice for the use of this new technology given concerns about potential overreach, discrimination and data protection. This amendment proposes that the first review of the code of practice should take place after two years rather than after five years.

Amendment No. 11 seeks to include prohibitions on mass surveillance and indiscriminate searching utilising biometrics within the Data Protection Acts. As there exists at present a prohibition on mass surveillance and indiscriminate searching under the Data Protection Acts, I do not believe the proposed amendment is necessary. I also think it is probably not good legislative practice to duplicate what is already there in the Data Protection Acts. Section 4 of the principal Act - the recording devices Act - notes that the provisions of the recording devices Act are without prejudice to the provisions of the Data Protection Acts. This will also apply to Part 6A, which has been inserted by section 8 of the Bill. It is important to note that section 89(3) of the Data Protection Act provides that profiling that results in discrimination against an individual on the basis of a special category of personal data shall be prohibited. My response to amendment No. 11 is that there are very many significant prohibitions contained within the Data Protection Acts and it would be unnecessary to replicate them in this legislation. There are also clear limitations on searching already set out in section 43C. That information must be in the context of a specific investigation among other things. As I said, the code of practice provisions already set out what needs to be included in the code and these include provisions related to procedures, confidentiality, security, storage, access, retention and parameters for use. As the code can also set out different provisions in relation to the types of biometric data or circumstances in which it can be carried out, for that reason I cannot accept amendment No. 11.

Amendment No. 12 is not necessary. Section 47A sets out what is to be included in the code of practice. This includes the parameters for which it can be carried out. The code of practice for the carrying out of biometric analysis will be laid before the Houses of the Oireachtas for private and positive resolutions. This means the Houses will have the opportunity to scrutinise the code alongside the provisions required by section 47A so, again, I cannot accept amendment No. 12.

Amendment No. 13 proposes to change the initial review period from five years to two years. As I stated previously, setting this at five years aligns with the principal Act. We can already see how involved the process of drafting code of practice is. The requirements for assessments and consultation make it a lengthy and detailed process and would further delay the roll-out of what I believe are the necessary digital tools for An Garda Síochána. I accept that a code may need to be reviewed earlier than five years but there is nothing preventing this from happening in the Bill so for that reason, I cannot accept the proposed amendment.

I move amendment No. 12:

In page 11, between lines 27 and 28, to insert the following:

“(5A) When making an order under subsection (5), the Minister shall lay the code of practice, together with an explanatory memorandum outlining the safeguards, limitations and parameters governing the use of biometric analysis and biometric categorisation, before each House of the Oireachtas.”.

I move amendment No. 13:

In page 11, line 36, to delete “5 years” and substitute “2 years”.

Amendment No. 14 is in the names of Senators Harmon and Cosgrove. Neither Senator is present to move the amendment.

Before I move on, I welcome Deputy Michael Murphy from Tipperary and members of the Patterson family Noel and Imelda, brother and sister to the late Frank Patterson. They are all very welcome and I hope they enjoy their visit to Leinster House.

I welcome MEPs Billy Kelleher and Barry Andrews with their guests. They are welcome and I hope they enjoy their visit to Leinster House. Would the Minister like to say anything?

I thank the Leas-Chathaoirleach and the other Senators tor facilitating the conclusion of Committee Stage of the recording devices Bill. It is important legislation. It is about introducing biometric analysis on a retrospective basis in Irish law so that An Garda can have that necessary tool available to ensure it can investigate serious crimes. It is a useful tool for the purpose of investigating serious crimes. I also welcome the distinguished Members of the European Parliament this afternoon.

When is it proposed to take the next Stage?

Next Tuesday.

Is that agreed? Agreed.

I welcome Marcus Goodwin and Ricardo Souto who are guests of Senator Brady. I hope they also enjoy their visit to Leinster House this afternoon. When is it proposed to sit again?

Next Tuesday at 2.30 p.m.

Is that agreed? Agreed.