Criminal Justice (International Cooperation on Electronic Evidence and Other Matters) Bill 2026: Committee and Remaining Stages

Sections 1 to 7, inclusive, agreed to.

NEW SECTION

Deputy Matt Carthy

I move amendment No. 1:

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

"8. The Minister, having consulted with the Minister for Foreign Affairs and Trade, may by regulation direct that the Director suspend cooperation, in part or in full, with a state in breach of—

(a) the Rule of Law Conditionality Regulation, or

(b) Article 6 of the Treaty on European Union,

or whereby cooperation would place Ireland in breach of Article 6 of the Treaty on European Union.".

I want to put on the record that I consider the way in which justice legislation is being dealt with on an ongoing basis to be inappropriate and unacceptable.

We are literally just two minutes after voting on Second Stage of this legislation, yet here we are dealing with Committee Stage. Amendments for this Stage had to be submitted before the Second Stage debate had taken place. That is no way to do business. It would be potentially excusable if this were a scenario where we were dealing with something that came out of the blue, but the Minister has been well aware of this legislation coming down the track for some time.

I take the opportunity to congratulate the new Minister of State. I should have done that at the outset. I wish her well and look forward to working with her.

Amendment No. 1 seeks to insert the following into section 8:

The Minister, having consulted with the Minister for Foreign Affairs and Trade, may by regulation direct that the Director suspend cooperation, in part or in full, with a state in breach of—

(a) the Rule of Law Conditionality Regulation, or

(b) Article 6 of the Treaty on European Union,

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

The reason for this amendment is fairly straightforward. It is about protecting Irish interests and also the principles of the rule of law, democracy and our own sovereignty, when required. Essentially, the regulations we are dealing with here allow police services in any other European state to request, in the first instance, information in relation to criminal investigations from companies based here. They then establish a governing body that can intervene in cases where there is a dispute or a company fails to comply.

There is a particular responsibility from Ireland’s perspective because we have such a large IT sector. This means there will potentially be a huge number of such applications. The Department’s own guidance note states that over 600 service providers based in Ireland are expected to be designated as an addressee in Ireland. It is anticipated that the number of production orders issued to service providers based in Ireland will well exceed 300,000 annually. That is a complete outlier. In contrast, Irish authorities are expected to send 2,000 requests to others. Of all other EU states, therefore, we are likely to request that about 2,000 production orders be fulfilled in any given year whereas 300,000 are expected to be requested from Ireland. They will come from all over. In practice, then, the expectation of how this will work in practice is that police services will request information from IT companies and it will be given over. Where it is not, though, the new body will be given the responsibility.

In principle, all of that is very important and welcome. We absolutely accept the principle, when we consider that many criminal investigations - I think virtually all - have an electronic component and where either text messages, server data or emails are required. We want that to be a seamless process in 95% of cases. It is also important to acknowledge, however, what these requests will be based on. When the justice committee received a briefing from the Department, a briefing that I think the committee unanimously agreed was unsatisfactory in respect of quite a number of questions going unanswered, the officials acknowledged that, “In theory, the regulation is based on the idea of full faith in credit in the member states' legal systems." This means that the entire premise of us adopting this legislation is accepting at face value that the legal system in every other EU state is and forever will be operating in accordance with the rule of law and the treaties of the European Union. As Deputy Mark Ward indicated during the Second Stage debate, however, “theory” is doing a lot of heavy lifting in that sentence. We have seen how easy it is for democratic backsliding to happen. We saw this in Hungary in particular, but also in other states where rule-of-law issues have become a major concern. There is always a fear that if a government system does not have the judicial and policing independence we would take for granted here in Ireland, we could have a potential attempt to use this legislation to do all sorts of things.

The difficulty is that once this legislation is adopted as part of an EU framework, then we are locked into it. That is the ratchet mechanism in how EU policy works. Once you are in, you cannot get out. We know the challenges that the EU-Israel Association Agreement has created. We signed up to it - and I think, very clearly, we should not have - and now we cannot get out of it, despite the fact that Israel is committing genocide. It is not tenable, and I do not think it should be accepted as just part of the process, that if another member state, for whatever reason, has a government that tries to abuse these regulations, we have no option but to deal with it. If we have a situation where the courts in another state have been manipulated or become less independent than we would accept as a given, and we do not have some form of control here, then we would just have to accede to every request that comes through. That is, ultimately, what is in place. These are not the politics of efficiency or harmonisation. These are actually the politics of potentially damaging our own justice system to facilitate the lowest common denominator across Europe.

The difficulty here, and the reason I think this amendment is so important, is that this is potentially the last chance the Oireachtas will have to put some form of protection in place. To be very clear on what the protection is, it is not looking for anything other than for the Minister to have the authority, in conjunction with the Minister for foreign affairs, to realise that there is a particular area of concern and then direct that there be a suspension of co-operation to protect Ireland’s legal framework and position, thereby potentially protecting Irish citizens and other European Union citizens. The amendment further states that this would be important in the event that by co-operating and facilitating one member state in breach of Article 6 of the EU treaties, we would breach the treaties ourselves by facilitating it.

We discussed this at the justice committee, and we received nowhere near the required level of assurance that we would not end up in a situation where we were sharing very sensitive information with a police authority that might have some form of negative agenda. This has now been put clearly on the record of the House. I do not want to see a situation in ten years or any future point where we have Ministers shrugging their shoulders and saying they have no option but to facilitate such and such a government in what is clearly a nefarious request because we are bound to do so by a law we adopted in these Houses. Members will have an opportunity to put in place this protection, and I am encouraging and urging the Minister of State to adopt and accept this amendment, or at least give an indication that she will put forward a similar amendment that will, ultimately, do the same thing.

Minister of State at the Department of Justice, Home Affairs and Migration (Deputy Catherine Ardagh)

I thank the Deputy very much for his amendment. I understand his concerns in relation to fundamental rights and countries not adhering to the rule of law as we might in Ireland.

However, I regret that we cannot accept his proposed amendment. The e-evidence package provides for co-operation between member states of the EU. It does not allow any member state to unilaterally suspend its operation, and the proposed amendment would be in clear breach of our legal obligations under EU law.

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

The regulation also has specific safeguards. Under Article 8, the Irish enforcing authority must be notified of incoming European production orders unless they relate to an offence in the issuing state committed by a person who resides in that state, and execution can be refused. Article 12 sets out the grounds for refusal. Article 10 provides a channel through which the service provider may alert the Irish enforcing authority when it considers the order would interfere with freedom of expression.

The Deputy might ask what happens after the director has been notified of a production order under Article 8 of the e-evidence measure. What are the practical steps? Where a director, as an enforcing authority, is notified by the issuing authority of a European production order, the director must assess the order and, where appropriate, raise one of several grounds for refusal. Following an assessment, the director can raise the following grounds for refusal. The director can state that the data requested are protected by immunities or privileges under Irish law; that the data requested are covered by rules on the determination or limitation of criminal liability that relate to freedom of the press, freedom of expression and other media; that execution of the order would entail a manifest breach of relevant fundamental rights, as set out in Article 6 of the Treaty on European Union and in the charter, which speaks to the points the Deputy is raising on fundamental rights; that the execution of the order would be contrary to the principle of ne bis in idem, the double jeopardy concept; and that the conduct for which the order has been issued does not constitute an offence under Irish law, unless it concerns an offence listed within the categories of offences set out in Annex IV, all of which are offences under Irish law, if it is punishable in the issuing state by a custodial sentence or detention order for a maximum period of at least three years.

Before raising any of the above refusal grounds, the director, as enforcing authority, has to contact the issuing authority to discuss the matter. The issuing authority may decide to withdraw, adapt or maintain the order. If there is no solution, the director may raise one of the grounds for refusal. If the director, as enforcing authority, raises one of the refusal grounds, they must inform the addressee and the issuing authority. The addressee then must stop the execution of the European production order and not transfer the data, and the issuing authority has to withdraw the order. I hope that helps the Deputy regarding his amendment and gives him some comfort.

Deputy Matt Carthy

It does not because, with due respect, the Minister of State is missing the point. The amendment is in respect of specific states and the ability to suspend co-operation, in part or in full, based on the list of scenarios I have set out. Arguably and hopefully, the provision would never need to be utilised, but it would be negligent not to put a safeguard in place. People might ask when or how what I describe could happen. Consider where the Hungarian Government got very close to in terms of control of the courts and the breakdown of independence in the Judiciary and the police. It is not beyond our wildest imagination that we could end up in a similar situation. What the Minister has outlined is a very convoluted process whereby each individual application that might come from a state would have to be dealt with through the process as outlined.

I understand what the Minister is saying about potential Executive powers. Again, however, the motion as it is set out states it would involve the Minister for Justice, Home Affairs and Migration in consultation with the Minister for Foreign Affairs and Trade. Essentially, that implies it will be a Government decision. There would be very real concerns and very valid reasons a Cabinet would come to the point that it would invoke the measure, and it would only be on the basis that it was actually protecting the rule of law, the conditionality regulation, protecting our own Constitution and protecting the EU treaty frameworks in respect of democracy and the rule of law. I hope such a provision will never be needed, but I can tell the Minister of State that if the protection is needed and we do not have it in place, these Houses will be judged very harshly.

My next point is critical because this is a debate that probably is not happening to the same extent in all EU member states. Considering the prevalence of the companies in respect of which orders and requests will be made in this State, we are going to play a disproportionate role in the decisions made. With 300,000 requests annually, I fear this will become routine for any member state seeking information.

For most criminal investigations, we want a seamless process. We want Irish authorities to be able to contact other authorities to seek electronic data and to get the information very quickly. We have to be confident, however, that all such requests are made on the basis of a genuine need to address a criminal issue rather than for some of the more concerning reasons for which requests have been in other states around the world. In this regard, the type of power in question has been used to curtail people’s freedom, not only freedom of expression but also freedom of movement and other fundamental human rights.

Again, I ask for support for the amendment. I am urging that we put in place a protection. This is what it is. Ultimately, we are talking about a protection that we hope and expect will never need to be used but without which I fear we will be adopting legislation that is going to be very good only in theory, as the officials themselves said to the committee, and that ultimately will not provide the confidence in our legislation that we should be demanding as that legislation would be underpinned by EU regulations we would have no power to amend in the future.

Deputy Gary Gannon

I wish the Minister of State well in her new role. I am sure she will find it to be very fast-moving and to have many different parts. We find sometimes that being in a hurry does not result in things operating the most effectively. Anyone who walked down to the District Court, the Central Criminal Court or the High Court today would have seen evidence of that.

This Bill is very important. That we do not have rule of law or an amendment built in at national level is very important to note. There is a huge responsibility on Ireland specifically. What we are doing here is creating a criminal justice international co-operation office in Ireland that is going to be different from what is in most other European states because of the prevalence here of the tech companies, including the Googles, Metas, LinkedIns and TikToks, which have headquarters here. To that very important office, we are allocating a budget of €2.8 million and 30 staff, who will be sent from another part of the Department of justice. The consequences of the decisions those staff will have to make with their very small budget are enormous. Do we think it is unimaginable that at some point they will have to make a determination on surveillance abuses or the use of spyware against journalists or Opposition politicians? Do we think they will not have to deal with requests that come under the heading of “democratic backsliding from some states”? They will.

If we do not have an application of our own values within those decision-making processes, we become complicit in them. That is why I will be supporting this amendment. That is why I will vote against a Bill which I mostly believe in. The rushed nature, lack of structure and inability to budget for the unforeseen makes this impossible for me to vote for.

Deputy Catherine Ardagh

As we all know, we are members of the European Union and the Members opposite know well that we cannot include this provision. It is in breach of the treaties and our obligations as a member of the European Union. We all know that we have legal obligations in relation to this regulation and we simply cannot ignore that. If we were to enact the amendment, service providers would still remain obligated to execute orders. That would be without oversight from directors. For the reasons I have stated, I simply cannot accept the Deputies' amendment. We cannot rewrite the regulation. There is no legal basis for Ireland to include such a provision. The Irish Executive cannot unilaterally decide to suspend legal co-operation entirely with another EU member state that is party to this instrument. To do so would place us in breach of our legal obligations under EU law. There are safeguards in the regulation to address instances with the execution of a specific order that might be in breach of fundamental rights. I set out in detail in my initial contribution these safeguards.

This regulation shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles enshrined in the Charter and in Article 6 of the Treaty of the European Union. The regulation also has specific safeguards whereby under Article 8, the Irish enforcing authority must be notified of incoming European production orders unless they relate to an offence in the issuing state committed by a person who resides in that state. Execution can be refused. Article 12 sets out the grounds on which they may be refused and Article 10 provides a channel through which the service provider may alert the Irish enforcing authority when it considers the order would interfere with the freedom of expression. At this stage, I have nothing more to add.

Amendment put:

The Committee divided: Tá, 65; Níl, 79; Staon, 0.

Tá

Ahern, Ciarán.
Bacik, Ivana.
Bennett, Cathy.
Boyd Barrett, Richard.
Brady, John.
Buckley, Pat.
Byrne, Joanna.
Cairns, Holly.
Carthy, Matt.
Clarke, Sorca.
Collins, Michael.
Conway-Walsh, Rose.
Cronin, Réada.
Crowe, Seán.
Cullinane, David.
Cummins, Jen.
Daly, Pa.
Devine, Máire.
Doherty, Pearse.
Donnelly, Paul.
Ennis, Daniel.
Farrelly, Aidan.
Farrell, Mairéad.
Gannon, Gary.
Gibney, Sinéad.
Gould, Thomas.
Graves, Ann.
Guirke, Johnny.
Hayes, Eoin.
Healy-Rae, Danny.
Healy, Seamus.
Hearne, Rory.
Kenny, Eoghan.
Kenny, Martin.
Kerrane, Claire.
Lawless, Paul.
Lawlor, George.
Mac Lochlainn, Pádraig.
McGettigan, Donna.
Mythen, Johnny.
Nash, Ged.
Newsome Drennan, Natasha.
Ní Raghallaigh, Shónagh.
Nolan, Carol.
O'Callaghan, Cian.
O'Donoghue, Robert.
O'Gorman, Roderic.
O'Hara, Louis.
O'Reilly, Louise.
O'Rourke, Darren.
Ó Broin, Eoin.
Ó Laoghaire, Donnchadh.
Ó Murchú, Ruairí.
Ó Snodaigh, Aengus.
Ó Súilleabháin, Fionntán.
Quaide, Liam.
Quinlivan, Maurice.
Rice, Pádraig.
Sheehan, Conor.
Smith, Duncan.
Stanley, Brian.
Tóibín, Peadar.
Wall, Mark.
Ward, Mark.
Whitmore, Jennifer.

Níl

Aird, William.
Ardagh, Catherine.
Boland, Grace.
Brabazon, Tom.
Brennan, Brian.
Brennan, Shay.
Brophy, Colm.
Browne, James.
Burke, Colm.
Butler, Mary.
Butterly, Paula.
Buttimer, Jerry.
Byrne, Malcolm.
Cahill, Michael.
Callaghan, Catherine.
Calleary, Dara.
Canney, Seán.
Carrigy, Micheál.
Carroll MacNeill, Jennifer.
Chambers, Jack.
Cleere, Peter 'Chap'.
Clendennen, John.
Collins, Niall.
Connolly, John.
Cooney, Joe.
Crowe, Cathal.
Cummins, John.
Currie, Emer.
Daly, Martin.
Dempsey, Aisling.
Devlin, Cormac.
Dillon, Alan.
Dolan, Albert.
Dooley, Timmy.
Feighan, Frankie.
Fleming, Sean.
Gallagher, Pat the Cope.
Geoghegan, James.
Grealish, Noel.
Harkin, Marian.
Healy-Rae, Michael.
Heneghan, Barry.
Heydon, Martin.
Higgins, Emer.
Keogh, Keira.
Kyne, Seán.
Lahart, John.
Maxwell, David.
McAuliffe, Paul.
McCarthy, Noel.
McConalogue, Charlie.
McCormack, Tony.
McGrath, Mattie.
McGrath, Séamus.
McGreehan, Erin.
Moynihan, Aindrias.
Moynihan, Michael.
Moynihan, Shane.
Murphy, Michael.
Neville, Joe.
O'Brien, Darragh.
O'Connell, Maeve.
O'Connor, James.
O'Dea, Willie.
O'Donnell, Kieran.
O'Meara, Ryan.
O'Shea, John Paul.
O'Sullivan, Christopher.
O'Sullivan, Pádraig.
Ó Cearúil, Naoise.
Ó Fearghaíl, Seán.
Ó Muirí, Naoise.
Roche, Peter.
Scanlon, Eamon.
Smith, Brendan.
Timmins, Edward.
Toole, Gillian.
Troy, Robert.
Ward, Barry.

Staon

Tellers: Tá, Deputies Matt Carthy and Mark Ward; Níl, Deputies Mary Butler and Emer Currie.

Amendment declared lost.

Sections 8 to 16, inclusive, agreed to.

SECTION 17

An Leas-Cheann Comhairle

Amendments Nos. 2 and 3 are related and may be discussed together, by agreement.

Deputy Matt Carthy

I move amendment No. 2:

In page 15, between lines 14 and 15, to insert the following:

“(g) ensure minimal administrative burden is placed on small to medium sized service providers.”.

There is real concern about the administrative burden this legislation could place on small and medium enterprises, SMEs, particularly in the IT sector. The Government conducted an SME test and I will talk more about that later but it found that the legislative impact on the SME sector will be significantly greater than it will be on larger companies and that there will be administrative and compliance costs.

This amendment is simple but it will be incredibly useful. It is to put in a provision on page 15 of the Bill after line 14 to "ensure minimal administrative burden is placed on small to medium sized service providers”.

The amendment is aspirational in many respects but it also sets out a template. It is important to say the vast majority of requests that will come through due to this legislation will come to the largest companies in the world, in effect, which happen to be headquartered here. The SME test carried out by the Department is a very useful document. It estimated that the five largest service providers will receive about 95% of all current cross-border requests in Europe and that even if there are substantial changes, about 90% will go to those companies. I do not think anybody will feel much sympathy if those companies experience an additional administration or cost burden to fulfil their obligations. The irony is companies of that size are probably going to end up making savings as a result of the EU directive. Because they operate on such a global scale, having a unified framework across the EU will be of benefit to them. There are the big five, and you could even say big ten to include the vast majority, but 600 service providers are likely to be impacted as addressees in Ireland. A significant proportion of those are going to be small, Irish-based SMEs. When we are talking about, as I mentioned earlier, 300,000 requests annually, even a small proportion coming to those SMEs could be an important point.

The potential effect on SMEs has been identified by the Department in its analysis. It stated:

For SMEs in particular, the requirement under the e-Evidence Package for authorities to nominate an addressee as a single point of contact for law enforcement authorities seeking to access electronic evidence will make it easier and more affordable for service providers to authenticate production orders. [However] ... the most significant burden on SMEs identified by the Commission’s assessment is the obligation to designate (and empower) a legal representative ... For SMEs [and again, this is all taken directly from the Department's regulatory analysis] not already engaged in voluntary direct cooperation activities, the e-Evidence Package presents a new regulatory burden that comes with potential legal, administrative and technical costs. SMEs that do not designate an addressee, for example, or fail to comply with the e-Evidence Directive or Regulation will be exposed to administrative penalties.

Nobody is suggesting that should be a byball and that SMEs should be therefore exempt from having to comply with the directive, but when we talk about SMEs some people have the idea that we mean Enterprise Ireland companies, whereas in some cases we could be talking about companies with two or three employees, even though they may be operating in this area.

The e-evidence regulation requires the development of a centralised IT system. No one should know the potential costs of that better than this Government because every time it tries to do one, it has ended up spending clean fortunes. It is clear that "While many large service provides will create their own infrastructure to connect with the decentralised IT system, a requirement for SMEs to do the same would have a disproportionate impact." Again, those are not my words but those from the Department’s report. That report says "consideration is being given to the development of a web-based interface which will allow service providers to communicate securely with authorities without having to establish their own infrastructure." I would welcome an update on whether that has happened.

The really interesting thing about the SME test the Department conducted is that it asks very clear questions and gives yes-no answers, which is somewhat unique. One of the questions is "Is the new policy, primary or secondary legislation, or regulatory compliance requirement relevant for SMEs?" The answer given was "Yes". The test then asks, "Are SME impacts likely to be more substantial than on other companies, for example, in terms of adverse effects?" The answer was unequivocally "Yes". There is a whole section about the consultations that took place and it says "Department officials engaged bilaterally with relevant industry stakeholders and with the SME representative bodies to incorporate their views where appropriate." That is important, but nothing in the legislation puts an onus on the director of the new body to take into consideration all of that. This is going to impact large companies and medium companies but it is also going to impact micro companies, which have between one and nine employees. As I mentioned, some of these could be very small indeed. Again, the question the Department asked of itself was "Has an estimate been carried out of the numbers of micro, small and medium companies affected directly or indirectly by the measure?" The answer to that question was "No".

I would have thought that if the Department had gone to the effort of carrying out an analysis of whether this would have a disproportionate impact on smaller enterprises and it came to the conclusion that it would, the next thing it would do is ask precisely how many companies it was going to have an impact on and ask what the Department and the Government could do, within legislation, to provide supports. Another question is "Will the proposed changes result in any of the following impacts for SMEs?" With respect to additional administrative costs, the answer was "Yes", as it was with respect to additional compliance costs. Across the board there is recognition.

The Department's paper sets out a number of mitigation measures that will be put in place, including:

- A ‘one-stop-shop’ for e-Evidence international cooperation

- Development of a web portal ... [which I have asked for an update on]

- Consideration of the impact of penalties based on size and financial situation

- No requirement for service providers to collect, compile and report data to Member States or the Commission

However, none of that is an assurance efforts will be made to ensure a minimal administrative burden is placed on small to medium-sized service providers. That is why this is a very simple amendment, but it is crucial because these enterprises are Irish based in large part. They are not going to up and leave as a result of changes to tax policy or international regulatory frameworks. These are the people who could potentially become the next generation of IT powerhouses, and more important, they could be based in Ireland. We need to be supporting these companies to navigate their way to a point where perhaps some of them will be able to compete, I hope in a better-regulated world, with some of the other large multinational operations. I hope they will be based in Ireland and will be part of the Irish framework as opposed to the international framework, which can be a bit like the wild west.

I ask the Minister of State to support this amendment.

Deputy Catherine Ardagh

I thank the Deputy for his amendment. He sought information on the e-portal. Connection to the decentralised IT system for SMEs will be via a web portal and access will be provided to their nominated addressee. If the data being returned is less than 25 Mb it will be sent via the system, but if it is greater it will be sent via another secure means and the cost associated with this will be minimal.

Unfortunately, I cannot accept amendments Nos. 2 and 3.

The language of amendment No. 2 is quite vague and it would be effectively meaningless in practice. The legal obligations on service providers are determined by EU regulation and directive. It is not open to the director to alter them. If there is a case for non-compliance, there will be an administrative burden on service providers who are subject to investigation but that cannot be avoided if a proper, fair and impartial investigation is to be carried out.

Amendment No. 3 seeks to introduce a double criminality provision. However, the question of double criminality is determined by the EU regulation. It is addressed in Article 12(1)(d) of the regulation, which provides one of the grounds for refusal of a European production order by an enforcing authority such as a director. It states:

the conduct for which the order has been issued does not constitute an offence under the law of the enforcing State, unless it concerns an offence listed within the categories of offences set out in Annex IV, as indicated by the issuing authority in the EPOC, if it is punishable in the issuing State by a custodial sentence or a detention order for a maximum period of at least three years.

Annex IV contains a list of 32 categories of serious offences, all of which constitute offences under Irish law. It is not open to us to vary this EU provision, which is legally binding on the director. In the case of Irish law, the regulation is not in conflict with the intention behind the amendment, so the amendment is redundant.

Deputy Matt Carthy

My apologies. I meant to speak to amendment No. 3. It is actually sometimes useful to get the Minister's response before speaking to an amendment.

I would encourage the Minister of State to look back at the Oireachtas justice committee. There was quite substantive discussion with officials on dual criminality, particularly how the civil law system that operates in most of Europe relates to Ireland's common law tradition. If the Minister of State were to review the transcript of that engagement, she would see clearly that the current wording of the legislation failed to fully reassure members this was adequately addressed. The justice committee has the benefit of having members who are much more legally astute than I am. They are able to probe these questions in great detail. The legal practitioners on the committee raised the most serious concerns in respect of this provision. While acknowledging provisions within the e-evidence package, we believe there needs to be strong, robust provisions in any legislation to ensure information will only be provided where any alleged offence constitutes an offence under Irish criminal law. That requires an explicit provision in domestic law.

The Minister of State described amendment No. 2 as very broad and virtually meaningless but it would insert a guidance to the new agency. That is something that has been included in other legislation, where there are guidances to ensure one of the agency's roles is not to overburden a particular sector. The Minister of State says this is EU regulations and directives and there is no ability to amend it but Ministers always seem to forget or ignore when talking about EU regulations and directives in this House that the Government signed up to them at an EU level. Any gaps and failings are failings and gaps on the part of the Government. That needs to be recognised.

Amendment No. 3 is important. I will press it but will not call a vote. I will call a vote on amendment No. 2 because it is really important there be provision in the legislation, not to allow companies escape the provisions of the directive, whose importance we acknowledge, but to recognise this will place an administrative and cost burden on some companies that will not be an issue for the larger companies. We need as legislators to say clearly we want to minimise that administrative and cost burden.

Deputy Catherine Ardagh

The Department is not unsympathetic to SMEs, which are the backbone of our economy. That is very much acknowledged. The web portal that will be used will have a minimal cost. The vast majority of orders in these cases will be directed to a small number of large service providers. However, where a small to medium-sized service provider is subject to an e-evidence order and holds electronic evidence related to the investigation of serious crime, it will have obligations under this regulation. That will be the cost of doing business in this industry. To relieve service providers of these obligations would likely create a gap criminals would exploit by moving to services offered by SMEs and would seriously undermine the effectiveness of the evidence package.

That said, the provisions in sections 38 and 40 are specifically designed to allow the director to remedy breaches by service providers without the need to proceed to investigation or the imposition of fines. In particular, the director can seek a compliance report to clarify the issues and may enter into an agreement with the service provider setting out the steps to be taken to remedy any issues identified. Furthermore, there is a legal obligation on the legal officers under section 50(2)(f) to give special consideration to small and medium-sized enterprises when considering the imposition of fines.

Amendment put:

The Committee divided: Tá, 64; Níl, 78; Staon, 0.

Tá

Ahern, Ciarán.
Bacik, Ivana.
Bennett, Cathy.
Boyd Barrett, Richard.
Brady, John.
Buckley, Pat.
Byrne, Joanna.
Cairns, Holly.
Carthy, Matt.
Clarke, Sorca.
Conway-Walsh, Rose.
Coppinger, Ruth.
Cronin, Réada.
Crowe, Seán.
Cullinane, David.
Cummins, Jen.
Daly, Pa.
Devine, Máire.
Donnelly, Paul.
Ellis, Dessie.
Ennis, Daniel.
Farrelly, Aidan.
Farrell, Mairéad.
Fitzmaurice, Michael.
Gannon, Gary.
Gibney, Sinéad.
Gould, Thomas.
Graves, Ann.
Guirke, Johnny.
Hayes, Eoin.
Healy-Rae, Danny.
Healy, Seamus.
Hearne, Rory.
Kenny, Eoghan.
Kerrane, Claire.
Lawlor, George.
Mac Lochlainn, Pádraig.
McGettigan, Donna.
McGuinness, Conor D.
Mythen, Johnny.
Nash, Ged.
Newsome Drennan, Natasha.
Ní Raghallaigh, Shónagh.
O'Callaghan, Cian.
O'Donoghue, Robert.
O'Hara, Louis.
O'Reilly, Louise.
O'Rourke, Darren.
Ó Broin, Eoin.
Ó Laoghaire, Donnchadh.
Ó Murchú, Ruairí.
Ó Snodaigh, Aengus.
Ó Súilleabháin, Fionntán.
Quaide, Liam.
Quinlivan, Maurice.
Rice, Pádraig.
Sheehan, Conor.
Sherlock, Marie.
Smith, Duncan.
Stanley, Brian.
Tóibín, Peadar.
Wall, Mark.
Ward, Mark.
Whitmore, Jennifer.

Níl

Aird, William.
Ardagh, Catherine.
Boland, Grace.
Brabazon, Tom.
Brennan, Brian.
Brennan, Shay.
Brophy, Colm.
Burke, Colm.
Butler, Mary.
Butterly, Paula.
Buttimer, Jerry.
Byrne, Malcolm.
Cahill, Michael.
Callaghan, Catherine.
Calleary, Dara.
Canney, Seán.
Carrigy, Micheál.
Carroll MacNeill, Jennifer.
Chambers, Jack.
Cleere, Peter 'Chap'.
Clendennen, John.
Collins, Niall.
Connolly, John.
Cooney, Joe.
Crowe, Cathal.
Cummins, John.
Currie, Emer.
Daly, Martin.
Dempsey, Aisling.
Devlin, Cormac.
Dillon, Alan.
Dolan, Albert.
Dooley, Timmy.
Feighan, Frankie.
Fleming, Sean.
Foley, Norma.
Gallagher, Pat the Cope.
Geoghegan, James.
Grealish, Noel.
Harkin, Marian.
Healy-Rae, Michael.
Heneghan, Barry.
Heydon, Martin.
Higgins, Emer.
Keogh, Keira.
Kyne, Seán.
Lahart, John.
McAuliffe, Paul.
McCarthy, Noel.
McCormack, Tony.
McGrath, Séamus.
McGreehan, Erin.
McGuinness, John.
Moran, Kevin Boxer.
Moynihan, Michael.
Moynihan, Shane.
Murphy, Michael.
Neville, Joe.
O'Brien, Darragh.
O'Callaghan, Jim.
O'Connell, Maeve.
O'Connor, James.
O'Dea, Willie.
O'Donnell, Kieran.
O'Meara, Ryan.
O'Shea, John Paul.
O'Sullivan, Christopher.
O'Sullivan, Pádraig.
Ó Cearúil, Naoise.
Ó Fearghaíl, Seán.
Ó Muirí, Naoise.
Roche, Peter.
Scanlon, Eamon.
Smith, Brendan.
Timmins, Edward.
Toole, Gillian.
Troy, Robert.
Ward, Barry.

Staon

Tellers: Tá, Deputies Matt Carthy and Pádraig Mac Lochlainn; Níl, Deputies Mary Butler and Emer Currie.

Amendment declared lost.

Deputy Matt Carthy

I move amendment No. 3:

In page 15, between lines 14 and 15, to insert the following:

“(g) ensure the conduct for which orders have been received constitute an offence under Irish law.”.

Amendment put and declared lost.

An Ceann Comhairle

Amendments Nos. 4 and 5 are related and may be discussed together.

Deputy Matt Carthy

I move amendment No. 4:

In page 15, between lines 25 and 26, to insert the following:

"(g) the Data Protection Commission.".

Like the previous amendments, these are simple proposals. Amendment No. 4 seeks to facilitate the office of the director of criminal justice international co-operation in making representations to or assisting the Data Protection Commission, DPC, in regard to the e-evidence package in the same way the legislation provides for such co-operation in the case of the Competition and Consumer Protection Commission, Coimisiún na Meán, the Corporate Enforcement Authority, Fiosrú, An Garda Síochána and the Revenue Commissioners. Amendment No. 5 does something very similar in facilitating the office of the director to enter into an information-sharing agreement with the DPC in the same way it can do so with those other offices.

There are significant implications for data protection in Ireland arising from this Bill. To some extent, we will, in effect, be ceding sovereignty to courts in other jurisdictions. That is why the facilitation I am proposing should be included. At the committee hearing, the departmental officials stated that the DPC did not consider it appropriate that it be the enforcement authority, and the Department accepted that. I, too, am willing to accept it. However, if the Department engaged with the commission at one point, as acknowledged by the officials, that suggests it believed at that point that the commission might be the appropriate body to deal with these matters. That surely is an acknowledgement that there is an overlap of functions or at least a relevance. Given everything we have already spoken about, it would be a welcome assurance for the legislation at least to formally facilitate engagement between the two bodies even if it did not mandate what that might look like at this time.

These are mainly technical amendments but they are important ones. I urge the Government to accept them.

Deputy Mark Ward

This is my first engagement with the Minister of State, Deputy Ardagh. I wish her well in her role and look forward to more engagements with her, particularly in respect of youth justice, which is an area in which I have a lot of interest. I look forward to working with her from the Opposition benches in a tangible and constructive way.

As my colleague said, the Bill provides for engagement and information sharing between the office of the director and An Garda Síochána, Coimisiún na Meán and other bodies. We are seeking provision for the same engagement with the DPC. Some concerns were expressed at the committee regarding the way the Bill has been rolled out. I will not rehash all the arguments that have been made already, including by me on Second Stage. The manner in which the Bill has been brought through the Houses of the Oireachtas has seen Second Stage taken yesterday, with us going straight to Committee Stage today without the proper pre-legislative scrutiny that was needed. It may be that there is no need for the DPC to have a role in this but we do not know that because we did not have the time to tease out that question. We did not have proper scrutiny of the Bill. In that context, I support my colleague's amendments to provide for an ongoing engagement with the DPC.

Deputy Catherine Ardagh

I thank Deputy Carthy for his amendments Nos. 4 and 5. I thank Deputy Ward for his comments on my appointment. Regretfully, I cannot accept the amendments. The definition of "public authority" in section 17(4) is intended to cover those Irish public authorities that have a law enforcement role and that may need to seek a European production order in the context of a criminal investigation into serious crime. The director in the role of central authority responsible for administration and transmission of such orders to other jurisdictions, and the receipt of data under Article 4.6 of the EU regulation, may have a role in assisting those bodies in the transmission of such orders and to pass on data received from service providers. That is provided for in section 17(1)(f).

Given that there could be a flow of data between the office of the director and those public authorities, provision is made in section 19 for information-sharing agreements to ensure the proper safeguarding of such data. The DPC will not have a role in the issuing of European production orders and, therefore, it would not be appropriate to include a reference to the commission in sections 17 or 19. The DPC does have a role in ensuring data is processed and the rights of data subjects are respected, and extensive powers to investigate any potential wrongdoing lie therein. The office of the director is subject to the provisions of the Data Protection Act 2018. The DPC was consulted about this legislation and did not seek to have any special information-sharing agreements with the office.

I hope that answers the Deputies' concerns.

Deputy Matt Carthy

It would be useful if the Minister of State could outline in greater detail exactly what was involved in the consultation with the DPC. It has been referenced both at the committee and here in the Dáil that there was such engagement with the commission. We have been told that it did not see itself as the appropriate enforcement authority and, as we have heard from the Minister of State just now, that it did not seek additional provision in the legislation. Was the question asked of the DPC as to whether such a provision would be helpful or potentially useful in the outworking of this legislation? Without knowing the context of the engagement, it is too simplistic to say the departmental officials spoke to people in the commission about the legislation and they never mentioned this issue. Were there formal sit-down engagements and, if so, was the Minister or a Minister of State present for any of those engagements, or was it all done through written correspondence?

Deputy Catherine Ardagh

On the Deputy's specific question about the format of the liaison with the DPC, there was a lot of interaction with it about the scheme of the Bill. I advise Deputies that my Department, in accordance with Article 36.4 of the GDPR and section 84(12) of the Data Protection Act 2018, the DPC was consulted about the specifics of the drafting of the Bill throughout. This was done in writing, not orally. The Data Protection Commission has carefully examined all data protection-related measures in the Bill and the related European measures at a very high level, and it did not identify a need for any such amendments or explicit provisions allowing for information-sharing agreements between the office and the Data Protection Commission.

I hope that answers the Deputy's question.

Deputy Matt Carthy

It does not really. I understand that the Minister of State is only new in the role and I do not expect her to know the details of that. I think she is confirming that there was no actual physical engagement and this was all done via emails or written submission. The question I asked was whether the question was put to the DPC. Is it the case that all agencies received an email with the draft Bill, telling them to highlight any concerns they may have with it, and if one did not come back, it was assumed that the Minister could get up and say that agency did not identify any need for additional powers? For example, did each of the State bodies referenced in the legislation, off its own bat, request to be included in the legislation or were those bodies in the initial drafts? Had this paragraph (g) about the DPC been included in the first draft, is there reason to believe that the DPC would have objected to it? If so, perhaps we could get a sense of the thinking about why the DPC would not want to be included in the legislation in this manner.

Deputy Catherine Ardagh

As I said, this legislation applies to criminal law enforcement bodies. We know that the DPC is not one such body. We consulted the DPC about the general scheme and it commented on the benefit of information sharing with listed public authorities. An expert team from the DPC would have been in touch with my Department for detailed engagement on a written basis, which is not unusual.

At this stage, I have nothing further to add about the matter.

Amendment put and declared lost.

Section 17 agreed to.

Section 18 agreed to.

SECTION 19

Deputy Matt Carthy

I move amendment No. 5:

In page 16, between lines 12 and 13, to insert the following:

“(g) the Data Protection Commission.”.

Amendment put and declared lost.

Section 19 agreed to.

SECTION 20

Deputy Matt Carthy

I move amendment No. 6:

In page 16, between lines 23 and 24, to insert the following:

“(4) Such an annual report shall contain statistical data in relation to—

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

(b) the number of orders that were refused,

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

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

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

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

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

Going back to our infamous committee meeting, which I know was before the Minister of State was appointed, we expected the meeting to be a short, technical briefing, but it raised serious concerns among members about legislation that we thought would be fairly straightforward. One question that was asked that could not be answered related to the potential scale of what this body could cost the Irish taxpayer annually. Somebody mentioned that we were kicking off with a €2.8 million budget this year, which would provide for 29 staff and associated costs. We also know that there are suggestions that we could end up with 150 staff in this body. We are told that the State is expected to receive in excess of 300,000 orders each year. We also know that the Department seemed to think, or at least provided evidence, that the impact on the courts would be minimal and the Courts Service itself has said that limited data is available about the number of cases that may arise after commencement. That is probably a diplomatic way of saying that we have not a clue. It goes on to suggest that the Department's projections may prove optimistic.

I am quite concerned that after the summer, when this comes into effect, combined with the as yet unknown outworkings of the reform to barristers' pay and so on, and when we have the EU Presidency putting pressure on the ability of gardaí to attend courts, we may be facing a substantial backlog in the courts, even worse than is already the case. Apart from all of these things, we know that many questions have not been answered but we do not know much else.

This amendment is intended to ensure that, at a minimum, the Oireachtas can be assured that there will be an annual report that will lay out how the office is functioning so that we can be kept abreast on an ongoing basis. Paragraph (c) is necessary so that we have a view of the number of instances where the office is engaging in what might be called corrective behaviour rather than levelling fines against service providers in breach of their obligations. Paragraph (d) would help to inform how the office is functioning, if its decisions are actually standing up to scrutiny and, crucially, the impact, if any, it is having on the Courts Service. Paragraph (e) would likewise provide a view about whether the office was meeting its obligations. Paragraph (f) is included to provide insight into the efficiencies and effectiveness of the office, how a large organisation like this can develop and the bill that the Irish taxpayer will be expected to foot for this facet of European co-operation. I can almost pre-empt that the Minister of State will say that this is not necessary and it is open to Members to submit parliamentary questions, but given the concerns about the potential annual costs of this new body, I believe it is important that, from day 1, we set out that the organisation will have to report on these matters in an annual report so that there can be transparency and scrutiny.

We know that there is an issue with the Minister of State's Department. Maybe the Minister of State can put it on her to-do list. It is what I would call the refusal and evasiveness of her Department when dealing with any parliamentary questions.

For virtually every body under the Department’s authority at this point, we get responses back to parliamentary questions saying that the Minister will not be held accountable and will not provide any information. It is not the same in every other Department. Many other Departments will provide information or, at a minimum, seek out information for the benefit of Deputies. However, the Department of justice has got to a point where it is just refusing point blank. I would say it probably makes as many refusals to parliamentary questions as it gives answers. I assume this body will be the same and the Department will again refuse to answer any parliamentary questions, so we will be dependent on the annual report to actually provide information not only to Members of the Oireachtas, but also to members of the public. Therefore, we need to ensure that the annual report is actually detailed and provides the type of information that would be useful for us in analysing the effectiveness of this body.

Deputy Mark Ward

Having an annual report on something that is new - a new Bill, a new operation or a new entity - is an absolute no-brainer just to see how things are working. We have no idea of the scale of cost of this and where it will end up. Based on the bit of information we got at the pre-legislative scrutiny stage, it is starting with 29 staff. It could be dealing with up to 300,000 orders each year and there are some suggestions that the staff number could rise to 150. Will 150 be the maximum number of staff in this new body? Do we expect 300,000 orders a year or could that rise?

There is the potential for this to be a runaway train. We do not know where it is going to end up. That is why I am saying that having an annual report to report on how many staff are coming in and the cost of it is a no-brainer and it will give us the evidence to see if we need to put more resources into it. The office may have more resources than it needs and we might be able to deploy those resources somewhere else where they are really needed.

I also have concerns about the impact on our court system, which is already bursting at the seams. Nothing I have heard so far, yesterday on Second Stage or at the pre-legislative scrutiny, has given me any confidence that this operation will not put any additional pressure on our court system. Does the Minister of State have any evidence that the court system will not be unduly impacted by all of these orders coming in? In relation to the annual report we are asking for, and in addition to the costs, the staffing levels and the other matters that were outlined by Deputy Carthy and me, the annual report could provide the evidence of how this is impacting on our court system.

Having an annual report on something that is new is a no-brainer. It is best practice for anybody bringing in something new at the very start. Whether a SME, a multinational or a government, when bringing in something new, there should be an annual report to see how things are working. The Minister of State should consider it.

Deputy Gary Gannon

The audacity of such an amendment from Deputy Carthy. Imagine wanting an annual report on a brand new structure, a brand new office, that we are told will probably have 300,000 requests and will try to hold to account some of the largest corporations in the world that may be liable to fines of 2% of their annual turnover. This democratic Chamber, which is supposedly one of accountability where we hold account, is simply asking for an annual report and somehow I assume that will not be the case.

I do not blame to Minister of State at all for this, but there is an arrogance that emanates from the Department of justice. It shows itself in the number of parliamentary questions that are declined and how it deals with Bills of considerable substance. Last week, the annulment of historical convictions for homosexual men was lumped in with the same Bill dealing with whether rape counselling notes should be allowed in trials. Today, we had to submit amendments for the Third Stage of a Bill before Second Stage had even concluded.

In the current environment in which this Chamber operates, this is an audacious amendment that simply asks for the means to allow us to scrutinise whether a new institution is actually working. I imagine that the amendment will be declined, which is a shame and shows how things have developed in this Chamber.

Deputy Catherine Ardagh

I know that time is sometimes very precious in this House. Section 20 of the legislation requires the publication of an annual report. That is set out very clearly in the legislation.

Deputy Gary Gannon

Will it impact on the Courts Service?

Deputy Catherine Ardagh

The annual report shall provide information as the director considers appropriate or as the director may direct. The section deliberately did not prescribe in detail exactly what statistical data should be included, as we are setting up a new entity. Until we have some experience of how it operates, it would be premature to determine what statistical information is most relevant and available. My Department believes that we should maintain a flexible approach at this stage but I will put on the record that I see no reason for the information referred to in the amendment not to be included in future in an annual report. I also remind Deputies that the Freedom of Information Act will apply, so there will be no question of hiding information.

In any case, most of the statistical information will be provided by the director to the Minister under section 21. Also under section 21, the director must submit to the Minister information on the number of notifications made under Article 8 and the number of production orders refused. This must be done by type of data requested, address and grounds for refusal.

Deputies were looking for further information on the impact on our court system. I assure Deputies that this impact will be minimal. For the purposes of this Bill, our courts will principally be involved in confirming compliance decisions, the imposition of fines and appeals. Our courts will otherwise not have a significant role in incoming orders issued by courts based in other member states.

In relation to the costs, the potential number of cases that will be going through the office and the number of requests made to the office, current estimates suggest that approximately 300,000 orders will be sent to service providers based in the State each year. This is based on the number of law enforcement requests currently received by the largest service providers based here. However, as only certain types of data request require a notification to be sent to the enforcing authority, the office of the director of criminal justice international co-operation will receive only a subset of those orders for review. Current estimates suggest that the office could receive around 24,000 notifications each year and as the e-evidence package represents a new legal framework for obtaining electronic evidence across the EU, the exact number of orders that will be issued and, consequently, the number of notifications sent to the office will only be known once the regulation comes into effect.

Deputies were also interested in the proposed cost of the office. An allocation of €2.8 million was secured in budget 2026 to establish the new office of the director of criminal justice international co-operation. The figure of €2.8 million reflects both pay and non-pay costs associated with setting up the office in 2026. This is a part-year cost. The approach to establishing the office as agreed by the Government has always been that it will do so on a phased basis. The Department has been focused on the progression of the legislation and the recruitment of the director, which is nearing completion. The process of recruitment of staff of the office is under way and my officials are engaging with the Public Appointments Service on that matter. It is expected that 20 staff will be recruited to the office by the end of the year and the recruitment process will continue as and when required on a phased basis.

I hope that answers the Deputies’ questions.

Deputy Matt Carthy

I welcome that the Minister of State has put on the record that she believes the information set out in this amendment should be provided in the annual report. That is important. However, I think there is a tacit acknowledgement in what the Minister of State has said that there will be no obligation whatsoever on the new entity to actually provide that because it has been given direction by the legislation to produce an annual report with no direction as to what should be in it. It is like asking 20 children in a class to write a report on their trip to the zoo, which could result in 20 very different versions of what was actually important apart from, hopefully, all of them agreeing that it was enjoyed by all.

A couple of things need to be said in respect of accountability.

First, there is a requirement for the Minister to receive information from the new body. Is the Minister obliged or committed to publishing that or sharing it with the rest of the Oireachtas and to being answerable in respect of it?

Second, the Minister said the body will be subject to freedom of information, FOI, requests. That is not an appropriate mechanism for transparency. Most of the reasons FOIs have to be submitted in the first place are because there is a lack of transparency around a particular matter, obviously personal issues excepted. I do not know why we would put a stipulation on a statutory body to produce an annual report without any detail as to what should be in it. I recall legislation I dealt with directly regarding the Agri-Food Regulator and another body I was dealing with. The provisions around the annual reports were very detailed precisely because the Houses of the Oireachtas wanted to set out very clearly the information they expect in a report. If we do not actually set out what it is we are looking for in an annual report, invariably what ends up happening is that people compare one annual report with another to see what is missing. That is not the way we should be commencing this process at all.

Deputy Mark Ward

I thank the Minister of State for giving us some sort of clarity that there will be an annual report. I refer to the process yesterday and today. We were here yesterday for Second Stage and the senior Minister got up and gave his opening statement. We all stood up and asked him some questions we were hoping would be referred to in his concluding remarks. Those questions were not answered, however, because another Minister for State came in and did not address the specific questions we had asked. No offence to the Minister of State, but we have another Minister of State here today. There is no consistency with this whatsoever.

The Minister of State expects 24,000 orders per year will be processed by this body and she hopes to have 20 staff in place by the end of the year. I do not know how long these orders are going to take to process but, if each of those staff members will be processing orders and will not be there for other administration purposes, that is 1,200 orders each member of staff will process per year. How long does the Minister of State reckon it will take to process one of these orders? There seems to be a really big burden on the staff the Minister of State is hoping to recruit. I ask for clarity on that.

Deputy Gary Gannon

I have a brief question. In terms of the annual report which is catered for in section 20, what should this House expect from the first annual report? In 12 months’ time, when the first annual report is delivered, what information should we expect? Presumably we understand that the office may evolve. There was reference to 30 staff when we were at the committee and it seems to be 20 now, along with a budget of €2.8 million. If this moves into the type of behemoth we imagine it would be, what should we expect from that first report?

Deputy Catherine Ardagh

In relation to the annual report, Deputy Carthy was curious as to whether it would be laid before the Houses of the Oireachtas. Section 20(4) provides that it would be presented to the Houses of the Oireachtas. As to what the contents of the report would be and what would form part of the report, that would be at the discretion of the Minister. Under section 20(3), the annual report "shall be in such form, and include such information in respect of the performance by the Director of his or her functions, as the Director considers appropriate or as the Minister may direct." As I outlined, under section 21, the director must submit to the Minister information on the number of notifications under article 8, the number of production orders refused and the type of data requested, the addressees and the grounds for refusal, etc.

In relation to Deputy Gannon’s point on why not be prescriptive at this stage or why state we are not being prescriptive, this is a new body and office and it was the considered thought of the Minister that the section would deliberately not be prescriptive so that we can take into account the experience and how the body is operating. It was the Minister’s view that it would be premature to determine what statistical information is most relevant at this point, and he came to that decision having considered the matter with his officials and having put a lot of thought into it. I hope that answers some of the Deputies’ questions.

Deputy Mark Ward

If the Minister of State has the information, in relation to the 20 members of staff and the 24,000 orders per year they are going to be processing, how long will each of these take to process? Does the Minister of State think that is going to be a burden on the staff?

Deputy Catherine Ardagh

Orders must be processed in ten days or 96 hours.

Deputy Mark Ward

I will have to get my calculator and work out how long it is going to take. Maybe that could be in the annual report also.

Amendment put and declared lost.

Section 20 agreed to.

Section 21 agreed to.

SECTION 22

An Cathaoirleach Gníomhach (Deputy Aidan Farrelly)

Amendments Nos. 7 and 12 are related. Amendment No. 12 is consequential on amendment No. 7. Amendments Nos. 7 and 12 may be discussed together.

Deputy Matt Carthy

I move amendment No. 7:

In page 17, between lines 3 and 4, to insert the following:

“(2) Notwithstanding this section, the Minister shall, no later than 31 July, publish guidance notes for small to medium sized service providers to promote compliance with their obligations under this Act.”

This is, again, a simple insertion. It goes back to the earlier point on the need to actually support SMEs which will receive a minority of the requests but for which this will have the biggest impact and implication, as acknowledged by the Department itself. We know all service providers are going to have to comply with the directive and regulation by August. There will be very little time between the enactment of the legislation and the obligation being placed on service providers, and that is entirely a result of the approach of the Minister and Department to this, bringing it forward late in the day and not being able to answer questions. This is again rushed legislation from the Department of justice. I appreciate there is a Department webpage in relation to registering as a service provider but there is a significant body of work necessary to ensure that SMEs that will be affected will be adequately supported.

I hope the Minister of State will accept this amendment but, on the off-chance she is not going to accept one of my amendments, I ask that she give a definitive answer on the number of service providers in Ireland at this stage that are going to be caught up in this legislation. Is there an online portal, web app or similar available to each of them? Will the Minister put into the hands of each service provider a comprehensive but accessible and straightforward guide as to their obligations and how they can be best complied with?

An Cathaoirleach Gníomhach (Deputy Aidan Farrelly)

Does Deputy Carthy want to address amendment No. 12 now? If not, I can let other Members in.

Deputy Matt Carthy

Not at this time.

An Cathaoirleach Gníomhach (Deputy Aidan Farrelly)

Do any other Members wish to speak?

Deputy Catherine Ardagh

In relation to the Deputy’s question on the number of service providers that will be affected, 420 have been identified but the Department believes it may affect up to 600 service providers. I hope that provides clarification.

I propose to address amendments Nos. 7 and 12 together. Regretfully, I cannot accept either of these amendments. The purpose of establishing an independent office is to ensure that the Minister, as a member of the Executive, does not have any direct role in the enforcement of the obligations by service providers under this Bill. It would be neither desirable nor practical for the Minister to publish guidance notes when he or she has no role in determining compliance with the provisions. That is why section 22 provides that the director may issue guidance notes. I will not agree to an amendment that would undermine the role of the director in this regard, and neither can I agree to give service providers a free pass to breach their obligations under the e-evidence package pending the issue of guidance notes. I point out that the provisions of sections 38 and 40 are specifically designed to allow the director to remedy breaches by service providers without the need to proceed to investigations and the imposition of fines.

In particular, the director can seek a compliance report to clarify what the issues are and may enter into an agreement with the service provider setting out the steps to be taken to remedy any issues. Furthermore, there is a legal obligation on adjudication officers under section 50(2)(f) to give special consideration to small and medium-sized enterprises when considering the imposition of fines. The purpose is to ensure compliance with the legislation and the imposition of fines is very much a last resort.

Amendment put and declared lost.

Section 22 agreed to.

Sections 23 to 31, inclusive, agreed to.

SECTION 32

An Cathaoirleach Gníomhach (Deputy Aidan Farrelly)

Amendments Nos. 8 and 9 are related and may be discussed together by agreement. Is that agreed? Agreed.

Deputy Mark Wall

I move amendment No. 8:

In page 21, between lines 3 and 4, to insert the following:

“(4) (a) Where an authorised officer or an adjudication officer compels the disclosure of a record or takes possession of a record in accordance with subsection (3)—

(i) the officer concerned shall not, pending the final determination of an application under subsection (4) or (6), as the case may be, use, copy, communicate or otherwise act upon the record or its contents for any purpose other than its secure retention in accordance with any directions given by the High Court under subsection (7),

(ii) the record shall be retained in a sealed and secure form, and shall not be accessed by any person, save for the purpose of complying with a direction of the High Court under subsection (7), and

(iii) any person having custody of the record shall be bound by the restriction in subsection (3) and shall, if required by the High Court, give an undertaking to that effect.

(b) Where no application is made under subsection (4) or (6) within the period of 30 days referred to in subsection (4), or within such extended period as the High Court may allow, the record shall be returned forthwith to the person from whom it was taken or compelled, and the officer concerned shall certify in writing that the record has not been used, copied or communicated during the period of its retention.”.

I take the opportunity to wish the Minister of State well in her new role. We served together in the Seanad and it great to see her promotion. I am sure we will have many engagements in the coming months. Amendments Nos. 8 and 9 deal with privileged material. In recent times, the Government has sometimes been slow to recognise the impact that some of this legislation could have on the protection of legal or journalistic privilege. Under section 32(3) and (4), the Bill allows for the compelled disclosure of potentially privileged material. This is subject to a subsequent High Court determination with a 30-day window to apply. The key word here is "subsequent". As currently drafted, the provision puts the cart before the horse. The 30-day window runs from the date of disclosure of taking of possession. An authorised officer has up to 30 days to apply to the High Court for a retroactive determination of privilege after he or she has already taken possession of that piece of digital evidence but there is nothing here that amounts to any sort of explicit ban or interim restraint on the use of that privileged material while the court application is pending. We believe that this is essential and have tabled these two amendments to make clear on the face of the Bill that where an authorised officer or adjudication officer compels disclosure or takes possession of a record, the record may be subject to legal privilege and they cannot use, copy, communicate or act upon that record before the High Court's determination. I hope the Government will look closely at these amendments and that common sense will prevail. We want to prevent any potential loopholes with this legislation and I hope the Minister of State can agree to our amendments.

Deputy Catherine Ardagh

Regretfully, I must oppose both amendments. Section 32 is intended to deal with a situation where an investigation is under way by an authorised officer into a possible contravention by a service provider of a relevant obligation under the directive - notification of designated establishment or legal representative or failure to provide same with the necessary powers and resources. It could also apply where an adjudication is being made as to whether to impose a fine for a breach of certain provisions of the e-evidence regulation by a service provider. In the course of such an investigation or adjudication, the service provider may have to provide certain material. Section 32, which is a standard provision on the Statute Book that functions well, addresses the situation where a question of privilege arises. The intention is that in such cases, the material shall be handed over subject to its being held in safe-keeping by the authorised officer or adjudication officer, who must make an application to the High Court within 30 days. The High Court then decides what to do with it.

If I understand the Deputy correctly, his concern is about what happens to the material between the handing over the material and the application to the High Court. I agree with the Deputy that the material should be kept securely but I do not believe that his amendment is required. Subsection (3) of section 32 already provides that an officer can only compel the disclosure of the record or take possession of the record provided that the privilege asserted can be maintained. This provision is already quite sufficient to achieve the end sought by the Deputy's amendment - the preservation of privilege asserted over the record until such time as the court has ruled on the matter. An authorised officer or adjudication officer may only access material for the purpose of an investigation or adjudication and clearly cannot use material if privilege is claimed until and unless the High Court judge issues a direction or rules on the matter. Furthermore, under section 33(1), an authorised officer may not disclose any confidential information. To do so is a criminal offence under section 33(3). There are similar provisions for adjudication officers in section 33(2).

In summary, I agree with the sentiment underlying these amendments but I believe they are unnecessary and may be too restrictive as to means of preserving privilege. I am confident that the existing provisions and the High Court will ensure that there is no such abuse.

Amendment put and declared lost.

Deputy Mark Wall

I move amendment No. 9:

In page 21, between lines 31 and 32, to insert the following:

“(c) the prohibition on use, copying, communication or other action in respect of the record pending the final determination of the application, including such prohibition as against any person to whom the record may have been disclosed prior to the assertion of privilege.”.

Amendment put and declared lost.

Deputy Mark Ward

I move amendment No. 10:

In page 21, between lines 34 and 35, to insert the following:

“(9) Counselling records in relation to sexual offence trials shall not be processed under this Act.”.

We have had extensive engagement with the Minister in recent weeks in the Dáil regarding the disclosure of counselling notes in trials. I appreciate that the Minister has moved somewhat on the issue but I will take the opportunity to ask him to move further and meet the needs as outlined by survivors with whom we have engaged. This gets to the core of the concerns regarding this Bill. It involves what happens with a court case in another jurisdiction regarding an alleged offence when it is known that a counsellor has electronic records of counselling notes. An order is received by a service provider in Ireland that provides online storage facilities. Is the Minister of State willing to stand over legal protection for survivors of domestic, sexual or gender-based violence that is less than what we provide for people in Ireland? The Minister of State might say that the legal systems here are different and have different safeguards and that would be true but is she willing to stand over whichever legal system in the EU may provide the least amount of protection to survivors-----

An Cathaoirleach Gníomhach (Deputy Aidan Farrelly)

We must conclude.

Deputy Mark Ward

Time is up. That is not the first time we have had discussions and time has run out.

An Cathaoirleach Gníomhach (Deputy Aidan Farrelly)

As the time has expired, I am now required to put the following question in accordance with an order of the Dáil of 16 June 2026: "That in respect of each of the sections undisposed of, the section is hereby agreed to in Committee, the Title is hereby agreed to in Committee, the Bill is accordingly reported to the House without amendment, Fourth Stage is hereby completed and the Bill is hereby passed."

Question put and agreed to.

Dáil Éireann debate - Wednesday, 17 Jun 2026