Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026: From the Seanad
Before we start, a number of typographical errors that have been identified in the Bill, as amended by the Seanad. Pursuant to Standing Order 203, I request the Ceann Comhairle to direct the Clerk to make the following corrections of a typographical nature to the Bill.
In Seanad amendments Nos. 46, 57, 68, 84 and 85, in respect of the inserted subsection (6)(b) of section 68, subsection (1) of section 79, subsection (2) of section 90, item 19 of Schedule 2 and item 1 of Schedule 3, respectively, I ask that the Clerk be directed to change the word "listed" to "specified" wherever it occurs.
In Seanad amendment No. 46, in respect of the inserted subsection (6) of section 68, I ask that the Clerk be directed to insert a closing bracket after the term "arrival time".
In Seanad amendment No. 52, in respect of the inserted subsection (5) of section 74, I ask that the Clerk be directed to insert the word "shall" in between the word "staff" and the term "be accountable". It will now read "the member of staff shall be accountable".
In Seanad amendment No. 57, in respect of the inserted subsection (1) of section 79, I ask that the Clerk be directed to remove the comma after the term "Schedule 4".
In Seanad amendment No. 68, in respect of the inserted subsection (3)(a)(1) of section 90, I ask that the Clerk be directed to insert the term "purpose of" after the term "necessary for the". It will now read, "the transfer of the data to the competent authority is necessary for the purpose of preventing, detecting, investigating".
In Seanad amendment No. 71, in respect of the inserted subsection (8) of section 93, I ask that the Clerk be directed to change the cross-referenced subsection from "subsection (4)" to "subsection (5)". It will now read "where the Independent Authority revokes an authorisation under subsection (5)".
I will direct the Clerk to make those changes.
I thank the Ceann Comhairle.
The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendments Nos. 1, 2 and 81 are related and will be discussed together.
Seanad amendment No. 1:
Section 1: In page 8, line 34, to delete “Part” and substitute the following:
"subsection (1) and this subsection, sections 4(b)(i), 43, 69(b) (insofar as it relates to the Courts Service), 70 and 74 and Parts 3, 3 and"
Amendments Nos. 1, 2 and 81 have been grouped and I will speak to them together. Amendments Nos. 1 and 2 relate to the commencement of the Bill and amend section 1(4), which provides for said commencement. Currently, provision is made for all provisions to be commenced by ministerial order, with certain listed exceptions which are to come into effect on enactment.
Amendments Nos. 1 and 2 amend section 1(4) to provide for the following provisions of the Bill as passed by Dáil Éireann, to come into effect on enactment: subsections (1) and (4) of section 1, section 4(b)(i), section 43, section 69, insofar as it relates to the Courts Service, section 70, section 74 and Parts 3 and 4, along with the Part to be inserted that amends the Wireless Telegraphy Act 1926.
I will now turn to amendment No. 81. This relates to section 69 of the Bill as passed by Dáil Éireann, which amends Schedule 5 to the Social Welfare Consolidation Act 2005 to add the Courts Service to the Schedule. Other operational criminal justice agencies such as the Irish Prison Service, the Probation Service and Forensic Science Ireland, being under the direct aegis of my Department, are already specified bodies under the Schedule. The Legal Aid Board is also a specified body.
Amendment No. 81 proposes to further amend Schedule 5 to the 2005 Act in order to add the Director of Public Prosecutions, DPP, as a specified body and to remove the current restriction on An Garda Síochána, whereby it is a specified body only in relation to its own members. Critically, this amendment will also facilitate the development of a unique identifier across the criminal justice system. I think this is something that is going to be very beneficial.
It is quite phenomenal that we are dealing with such a number of amendments from the Seanad. I reiterate a point I have made on every Stage of this Bill. Before the Minister gets overly sensitive, I absolutely accept that miscellaneous Bills have their place, particularly when we are dealing with minor technical matters or matters that are in some way related. There are important provisions in this legislation that I welcome.
The extensive range of unrelated issues dealt with, without what I consider to be appropriate levels of scrutiny ,has done a huge disservice to many of the good aspects being dealt with in the legislation. The truth of the matter is that there are good provisions in this Bill that just did not get the level of scrutiny warranted. When this legislation is made law, major aspects of it will not have been dealt with during pre-legislative scrutiny and were only touched upon on Committee and Report Stages.
A great deal of the debate on this Bill was taken up by the issue of counselling notes. It has been proven by that debate that this issue should have been a stand-alone matter. It rightly consumed most of the discussion on Committee and Report Stages. Yet we still did not have enough time to tease out amendments to improve what the Minister has in this Bill, including the more serious concern that these provisions will allow the practice of the defence of an alleged offender in sexual violence trials to continue to be able to seek the disclosure of counselling notes under the provision of the interests of justice.
It is appropriate that we commend all those victims and survivors who engaged with us throughout the consideration of this Bill and who laid out in stark terms the impact of this practice. We will see in practice how curtailed it becomes as a result, but it has to be said that the manner in which this issue has been dealt with has compounded some of the trauma outlined. I know that many people had hoped that the Minister would, even at a later stage, introduce a full ban on the disclosure of counselling notes. There will be a huge amount of scrutiny. I hope that the Minister is right that, in reality, when it comes to the practice of the courts, we will actually see a fundamental change in their approach in dealing with this matter.
In terms of the legislation, as well as the breadth of the issues covered in the Bill, the other problem is the number of amendments the Minister has introduced on every Stage on new and unrelated matters that just have not been discussed in this House at all and will not get discussed here because of guillotines being applied and the Minister refusing to allow the justice committee to deal with this legislation in an appropriate way. I know the Minister is eager and anxious to get laws passed, and, in one way, that is commendable. I do, however, have a fundamental problem with the whole notion of scrutiny having been thrown out.
I must say that the additions in respect of aid to the civil power remain the most inexplicable, because this is a defence matter. It necessitated a change to the Title of the Bill, never mind anything else. It also necessitated the Minister for Defence appearing before the justice committee. I do not know how the said Minister deals with things in her own sectoral committee, but I have never seen a more ill-prepared Minister in the justice committee, or a Minister unable to answer what should have been basic questions that were put to her.
The questions put to her on that day at the justice committee still have not been answered. We still do not know the rationale for the changes, the way they were brought about and the urgency with which they were brought about. I just do not think it is appropriate that such new matters were brought into the Bill on every Stage, including during the Stages in the committee and in the Dáil.
I hope the Minister will reflect on all of that over the summer. It is for these reasons that I have opposed the Bill at every stage. It was primarily because of the approach taken to counselling notes, but also the approach taken to the Bill as a whole. This is the reason why I will be voting against the final passage of the legislation. I just want to put that on the record because, notwithstanding that, there are some extremely important legislative changes in this Bill that I do support. Had the Minister taken a different approach, I think he would have had unanimous support in these Houses on every Stage, which should have been the way of doing things when we are dealing with issues that, in many cases, have been long campaigned for. I am thinking of the issue of the retrospective disregarding of convictions for gay men, and other extremely important issues that have come about as a result of decades of campaigning. They should not have been put into a Bill that has become divisive as a result of the political decisions made concerning how this legislation would be pushed through the House.
I will not be opposing any amendments. Most of them are very technical, and a few of them are on significant issues.
As I said previously, I believe in miscellaneous Bills. I brought them in myself. I have no issue with them, but this is one of the most mental Bills I have ever seen. The Minister laughed the last time I said that, and he is laughing this time. In fairness to him, I got what he said last time. We are getting to the summer break, so spirits are high and all of that. We could equally be here criticising the Minister for not doing stuff. Here we are on the second-last evening before the recess, and we are going through four different Bills. This is commendable on the part of the Minister, his officials, the Department, and all of that.
This Bill, though, is so mental regarding the number of areas it covers. I have never, in my time in here, nearly 20 years, seen legislation so mental as regards the breadth and depth of issues. It is an A to Z of issues. Many of them could have been Bills on their own, while some of them could have been grouped together. The depth and breadth of issues here, however, is phenomenal. A few more have been thrown into this evening. There is also the matter of the structure by which so many amendments were being brought forward on different Stages. At times, it was actually quite difficult even to follow, which is never good, to be fair. I have said all this before, so I am not going to repeat it. I would not like to see this happening consistently.
Having said all that, however, we will support the Bill. It is commendable that this House has finally dealt with a number of areas in the legislation. I acknowledge what the Minister said about my colleague, Senator Laura Harmon. She came to the Minister in relation to the sex-for-rent issue. I have to acknowledge the fact that the Minister has always commended her on this issue. She has always been a strong campaigner on this issue given her history of involvement in student politics. I also acknowledge the National Women’s Council of Ireland, NWCI, Women’s Aid, the Irish Council for International Students, ICOS, and the Rape Crisis Centre. I must acknowledge Ann Murphy of The Examiner too.
In relation to LGBT and the issue of historical convictions, my colleague, Deputy Ged Nash, has worked on this issue for over a decade, which the Minister has acknowledged as well, along with other colleagues in this House. It is a very important and historic night. It was thought that this would happen later, but so many people I know will be so thankful for and welcoming of this aspect of the legislation.
They will be in with us later tonight.
The issue in relation to counselling notes is one we really had to have so much discussion about. It was a very difficult discussion. It was very intricate and very tricky. The test of time will apply. The jury is out - pardon the pun - in relation to this issue. I hope we have done the public the best service we can in relation to that issue. I am not going to rehash all the components because it came down to one or two words in the end; I just hope we are.
As regards the aid to civil powers, the fact that has come in under this measure and the timing of it is a very strange development as regards how this Bill was brought forward. I would not like to see that again because it made very little sense as regards the timing and how the other Minister participated in a Bill brought forward by the Minister for justice.
In the Labour Party, having gone through all the amendments, most are very technical. We will not oppose the amendments and will support the Bill.
A couple of weeks back in this Chamber, when discussing the previous Stage of this Bill, I looked up the Gallery. In the Gallery there were campaigners who campaigned for decades, some of whom were friends of mine, for the removal of historical convictions for gay men. In another part of the Gallery were women who had to come before a committee and relive their trauma and ask for change when it comes to the use of counselling notes in rape cases.
I do not believe it is good practice. I understand the concept of a miscellaneous Bill but where there are issues of such unimaginable importance being discussed in the same legislation, it creates confusion. The confusion for us is immaterial but that does not matter. We can catch up but for advocacy groups and campaigners, it leaves them in a very different situation. I do not believe for a second it is good practice.
Within this Bill there are issues pertaining to the use of pepper spray and incapacitant spray in prisons. It is an area I feel deeply passionate about. I did not get any chance to really scrutinise those aspects of this Bill on any of the Stages.
There is the issue of aid to civil powers which was quite bizarre when it was brought to the justice committee with the Minister for Defence there. I appreciate the Minister is in a hurry but his hurry should not disregard parliamentary norms and the idea of scrutiny. There are many great aspects in this Bill, which I will vote for, but we should not do business like this. A lot of things are going on. We are into our third hour discussing issues in relation to District Court and Circuit Court without even mentioning that there is chaos reigning as we speak. I will support this Bill.
Seanad amendment agreed to.
Seanad amendment No. 2:
Section 1: In page 8, line 34, to delete “and section 69”.
Seanad amendment agreed to.
Amendments Nos. 3 to 8, inclusive, and 87 are related and may be discussed together, by agreement.
Seanad amendment No. 3:
Section 6: In page 11, between lines 9 and 10, to insert the following:
“PART 3
Amendment of Wireless Telegraphy Act 1926
Definition (
Part 3
)
6.In this Part, “Act of 1926” means the Wireless Telegraphy Act 1926.”.
These amendments relate to the authority of An Garda Síochána to deploy radio frequency jammers to counteract drones. I am advised that these legislative amendments are necessary to confirm that An Garda Síochána has the legal powers where necessary and proportionate to deal with dangerous or hostile drone activity through the use of what are called “radio frequency jammers”.
Amendments Nos. 3 and 4 are technical in nature and simply deal with references to the Wireless Telegraphy Act 1926 and the Policing, Security and Community Safety Act 2024.
Amendment No. 5 amends section 3(6) of the 1926 Act to ensure that the general prohibition on the possession of wireless telegraphy apparatus without a licence from ComReg does not apply to a radio frequency jammer kept by An Garda Síochána for the purpose of working or using it in accordance with the proposed new sections 12(1B) and 12B(1B) of the 1926 Act.
Amendments No. 7 and 8 are consequential in nature. At present, sections 12 and 12B of the 1926 Act provide for offences and monetary penalties for the use of wireless telegraphy apparatus to interfere with other such apparatus which would at present apply to An Garda Síochána if it used this equipment.
Amendment No. 87 amends the Long Title of the Bill to reference the amendments to the Wireless Telegraphy Act 1926.
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 6: In page 11, between lines 9 and 10, to insert the following:
“Amendment of section 2 of Act of 1926
7.Section 2 of the Act of 1926 is amended by the insertion of the following definition:
“ ‘Act of 2024’ means the Policing, Security and Community Safety Act 2024;”.”.
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 6: In page 11, between lines 9 and 10, to insert the following:
“Amendment of section 3(6) of Act of 1926
8.Section 3(6) of the Act of 1926 is amended by the insertion of the following paragraph after paragraph (a):
“(aa) a radio frequency jammer kept by or in the possession of An Garda Síochána or a member of An Garda Síochána for the purposes of working or using such radio frequency jammer in accordance with section 12(1B) and 12B(1B),”.”.
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 6: In page 11, between lines 9 and 10, to insert the following:
“Commission and An Garda Síochána to agree memorandum of understanding on information sharing
9. The Act of 1926 is amended by the insertion of the following section after section 3:
“3B. (1) The Commission, having regard to its function under section 10(1)(b) of the Communications Regulation Act 2002, and the Garda Commissioner, having regard to the function of An Garda Síochána referred to in section 9 of the Act of 2024, may agree a memorandum of understanding concerning the sharing between them of information on radio frequency jammers—
(a) kept by, or in the possession of, An Garda Síochána or a member of An Garda Síochána, and
(b) worked or used by a member of An Garda Síochána to interfere with the working of or otherwise injuriously affect any UAS.
(2) Without prejudice to the generality of subsection (1), the Commission and the Garda Commissioner may agree that the memorandum of understanding referred to in that subsection provide for the sharing between them of information relating to any of the following:
(a) the procurement, storage, calibration, testing and maintenance of radio frequency jammers by An Garda Síochána;
(b) standard operating procedures internal to An Garda Síochána relating to the use of radio frequency jammers;
(c) the types of radio frequency jammers kept or used by An Garda Síochána, including the radio frequencies used by the radio frequency jammers and the power limits of the radio frequency jammers;
(d) instances of the use of radio frequency jammers by An Garda Síochána.
(3) Without prejudice to subsection (1), the Commission and the Garda Commissioner shall agree a memorandum of understanding referred to in that subsection within the period of two months beginning on the date on which this section comes into operation.
(4) Where a memorandum of understanding is not agreed in accordance with subsection (3)—
(a) the Commission shall notify the Minister for Culture, Communications and Sport, and
(b) the Garda Commissioner shall notify the Minister for Justice, Home Affairs and Migration,
of that fact.
(5) The Commission and the Garda Commissioner shall keep under review the operation of a memorandum of understanding agreed under this section and may agree such amendments to, or revocations of, the memorandum as appear to them to be necessary or desirable.”.”.
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 6: In page 11, between lines 9 and 10, to insert the following:
“Amendment of section 12 of Act of 1926
10. Section 12 of the Act of 1926 is amended—
(a) in subsection (1), by the substitution of “Subject to subsections (1A) and (1B)” for “Subject to subsection (1A)”, and
(b) by the insertion of the following subsection after subsection (1A):
“(1B) It shall be lawful for a member of An Garda Síochána to work or use a radio frequency jammer to interfere with the working of or otherwise injuriously affect any UAS where the member reasonably believes such work or use to be necessary for the purposes of carrying out the function of An Garda Síochána referred to in section 9 of the Act of 2024.”.”.
Seanad amendment agreed to.
Seanad amendment No. 8:
Section 6: In page 11, between lines 9 and 10, to insert the following:
“Amendment of section 12B of Act of 1926
11. Section 12B of the Act of 1926 is amended—
(a) in subsection (1), by the substitution of “Subject to subsections (1A) and (1B)” for “Subject to subsection (1A)”, and
(b) by the insertion of the following subsection after subsection (1A):
“(1B) Subsection (1) shall not apply to the use by a member of An Garda Síochána of a radio frequency jammer for the purpose of interfering with a UAS where that member reasonably believes such use to be necessary for the purposes of carrying out the function of An Garda Síochána referred to in section 9 of the Act of 2024.”.”.
Seanad amendment agreed to.
Seanad amendments Nos. 9 to 18, inclusive, are related and may be discussed together.
Seanad amendment No. 9:
Section 6: In page 11, to delete lines 12 to 31, and substitute the following:
“Amendment of section 67 of Courts of Justice Act 1936
6.(1) Subject to subsection (2), section 67 of the Act of 1936 is amended—
(a) in subsection (2), by the substitution of “8 nominated members” for “10 nominated members”,
(b) in subsection (3)(a), by the deletion of the words “who shall be the chairperson of the Committee,”,
(c) in subsection (4), by the substitution of the following paragraphs for paragraphs (a) and (aa):
“(a) 1 shall be an ordinary judge of the Supreme Court nominated by the Chief Justice;
(aa) 1 shall be an ordinary judge of the Court of Appeal nominated by the President of the Court of Appeal;”,
(d) by the insertion of the following subsection after subsection (4):
“(4A) The Chief Justice shall be the chairperson of the Committee and—
(a) shall nominate another judge who is a member of the Committee to act as chairperson during the period a person is acting in his or her place as a member of the Committee under subsection (9), and
(b) may, at any other time, nominate another member of the Committee to act as chairperson during such period or on such occasion or occasions as are specified in the nomination concerned.”,
(e) in subsection (9), by the substitution of the following paragraph for paragraph (a):
“(a) in the case of the Chief Justice, an ordinary judge of the Supreme Court, Court of Appeal or High Court,”,
and
(f) by the insertion of the following subsection after subsection (11):
“(12) The Chief Justice may revoke a nomination made by him or her under subsection (4A) at any time and, where that revocation relates to a nomination referred to in paragraph (a) of that subsection, the Chief Justice shall make another nomination under that paragraph if the revocation takes effect during the period referred to in that subsection.”.
(2) Notwithstanding the amendments to section 67 of the Act of 1936 effected by subsection (1)(a) and (c), an ordinary judge of the Supreme Court or an ordinary judge of the Court of Appeal who is, immediately prior to the date of coming into operation of this section, a nominated member of the Superior Courts Rules Committee under subsection (4) of that section 67 shall, on and after that date, subject to subsection (5) of that section, remain a nominated member of that Committee.
(3) It is hereby confirmed that, on the date on which it came into operation, section 20 of the Civil Law (Miscellaneous Provisions) Act 2008, in amending section 67 of the Act of 1936, had the effect of inserting, after subsection (1) of that section, the relevant subsections in substitution for subsections (4), (7), (8), (9) and (10) of that section as it stood immediately before that date.
(4) In subsection (3), “relevant subsections” means, in relation to the amendment of section 67 of the Act of 1936 by section 20 of the Civil Law (Miscellaneous Provisions) Act 2008, the subsections numbered (2) to (11) that are expressed by the said section 20 to be substituted for subsections (2) to (10) of that section of the Act of 1936.
(5) In this section, “Act of 1936” means the Courts of Justice Act 1936.”.
Seanad amendment agreed to.
These amendments relate to the non-judicial role of the Chief Justice.
Amendment No. 9 deals with section 6 of the Bill as passed by the Dáil. It amends section 67 of the Courts of Justice Act 1936, which provides for the superior courts rules committee to allow the Chief Justice to nominate an ordinary judge of the Supreme Court. These changes are being introduced to reduce the non-judicial workload of the Chief Justice and the respective courts.
Amendments Nos. 10 to 18, inclusive, amend section 8 of the Bill as passed by the Dáil which amends sections 12 and 44 of the Judicial Council Act 2019 in relation to the membership of the board of the Judicial Council and the judicial conduct committee.
The proposed further amendments provide for the revocation at any time of a nomination to act as chair of the board or the judicial conduct committee and for a cessation of effect of nominations for a judge performing the functions of the Chief Justice.
Seanad amendment agreed to.
Seanad amendment No. 10:
Section 8: In page 12, line 26, to delete “nominate” and substitute “nominate in writing”.
Seanad amendment agreed to.
Seanad amendment No. 11:
Section 8: In page 12, line 29, to delete “nominate” and substitute “nominate in writing”.
Seanad amendment agreed to.
Seanad amendment No. 12:
Section 8: In page 12, line 31, to delete “”,” and substitute the following:
“(2C) The Chief Justice may, at any time, revoke a nomination made under subsection (2B) and, where that revocation relates to a nomination referred to in paragraph (a) of that subsection, the Chief Justice shall make another nomination under that paragraph if the revocation takes effect during the period or on such occasion or occasions referred to in subsection (2A).”,”.
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 8: In page 12, to delete line 38 and substitute the following:
“(b) in section 13, by the insertion of the following subsection after subsection (1):
“(1A) A nomination under section 12(2A) shall—
(a) cease to have effect upon—
(i) the expiration of the period or the passing of the occasion or occasions, as the case may be, specified in the nomination, or
(ii) the revocation of the nomination by the Chief Justice,
(b) where the Chief Justice ceases to hold judicial office, cease to have effect upon such cessation,
(c) where the judge in respect of whom the nomination was made ceases to hold judicial office, cease to have effect upon such cessation, or
(d) where the judge, in respect of whom the nomination was made, by notice in writing given or sent to the Chief Justice indicates that he or she does not wish to continue to perform the functions concerned, cease to have effect upon the receipt of that notice by the Chief Justice.”,
and”.
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 8: In page 13, line 19, to delete “nominate” and substitute “nominate in writing”.
Seanad amendment agreed to.
Seanad amendment No. 15:
Section 8: In page 13, line 23, to delete “nominate” and substitute “nominate in writing”.
Seanad amendment agreed to.
Seanad amendment No. 16:
In page 13, line 26, to delete “”,” and substitute the following:
“(2C) The Chief Justice may, at any time, revoke a nomination made under subsection (2B) and, where that revocation relates to a nomination
referred to in paragraph (a) of that subsection, the Chief Justice shall make another nomination under that paragraph if the revocation takes effect during the period or on such occasion or occasions referred to in subsection (2A).”,”.
Seanad amendment agreed to.
Seanad amendment No. 17:
Section 8: In page 13, line 33, to delete the period after “be,” ” and substitute a comma.
Seanad amendment agreed to.
Seanad amendment No. 18:
In page 13, after line 33, to insert the following:
“and
(c) in section 46, by the insertion of the following subsection after subsection (1):
“(1A) A nomination under section 44(2A) shall—
(a) cease to have effect upon—
(i) the expiration of the period or the passing of the occasion or occasions, as the case may be, specified in the nomination, or
(ii) the revocation of the nomination by the Chief Justice,
(b) where the Chief Justice ceases to hold judicial office, cease to have effect upon such cessation,
(c) where the judge in respect of whom the nomination was made ceases to hold judicial office, cease to have effect upon such cessation, or
(d) where the judge, in respect of whom the nomination was made, by notice in writing given or sent to the Chief Justice indicates that he or she does not wish to continue to perform the functions concerned, cease to have effect upon the receipt of that notice by the Chief Justice.”.”.
Seanad amendment agreed to.
Seanad amendments Nos. 19, 29, 88 and 90 are related and may be discussed together.
Seanad amendment No. 19:
Section 16: In page 19, between lines 9 and 10, to insert the following:
“Amendment of section 10 of Misuse of Drugs Act 1984
16. Section 10 of the Misuse of Drugs Act 1984 is amended—
(a) in subsection (1), by the substitution of “FSI” for “Forensic Science Ireland of the Department of Justice”, and
(b) by the insertion of the following subsections after subsection (1):
“(2) In any proceedings for an offence under section 3 of the Principal Act, the production of a certificate—
(a) purporting to be signed by an approved member of An Garda Síochána,
(b) relating to an examination, inspection or test, as the case may be, by way of an approved category of applicable drug test, carried out by the member, of a relevant controlled drug or other substance, product or preparation, and
(c) specifying—
(i) the approved category of applicable drug test concerned, and
(ii) the relevant controlled drug or other substance, product or preparation concerned,
shall, until the contrary is proved, be evidence of any fact thereby stated without proof of any signature thereon or that any such signature is that of the member.
(3) The Minister for Justice, Home Affairs and Migration, having consulted with the Director of FSI, may by order prescribe a controlled drug for the purposes of paragraph (d) of the definition of relevant controlled drug in subsection (6) where he or she is satisfied that it is appropriate to do so, having regard to—
(a) the availability of an examination, inspection or test that is capable of being carried out on a substance, product or preparation in a place other than a laboratory with the purpose of ascertaining whether the controlled drug is present in the substance, product or preparation, and
(b) the efficacy, accuracy, usability and safety of any such examination, inspection or test.
(4) The Director of FSI may, where he or she is satisfied that it is appropriate to do so, having regard to the efficacy, accuracy, usability and safety of a category of applicable drug test, certify, in writing, the category as an approved category of applicable drug test for the purposes of subsection (2).
(5) The Director of FSI may, where he or she is satisfied that a member of An Garda Síochána—
(a) has undertaken appropriate training, provided by FSI, on the administration of applicable drug tests, and
(b) is competent in such administration,certify, in writing, the member as an approved member of An Garda Síochána for the purposes of subsection (2).
(6) In this section—
‘applicable drug test’ means an examination, inspection or test that is capable of being carried out on a substance, product or preparation in a place other than a laboratory with the purpose of ascertaining whether a relevant controlled drug is present in the substance, product or preparation;
‘approved category of applicable drug test’ means an applicable drug test certified under subsection (4);
‘approved member of An Garda Síochána’ means a member of An Garda Síochána certified under subsection (5);
‘Director’, in relation to FSI, has the same meaning as it has in the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014;
‘FSI’ means Forensic Science Ireland of the Department of Justice, Home Affairs and Migration;
‘member’, in relation to An Garda Síochána, has the same meaning as it has in the Policing, Security and Community Safety Act 2024 (other than in Part 6 of that Act);
‘relevant controlled drug’ means—
(a) cannabis,
(b) cannabis resin,
(c) cocaine, or
(d) any other controlled drug prescribed under subsection (3) for the purposes of this definition.”.”.
Amendment No. 19 inserts a new section into the Bill to amend section 10 of the Misuse of Drugs Act 1984. It inserts new subsections (2) to (6) into section 10 to provide a statutory basis for the admissibility of certificates of results of Garda-administered presumptive drug testing, PDT. It introduces a legal presumption in favour of the evidential value of such certificates subject to rebuttal evidence.
Amendment No. 29 inserts a new section into the Bill to amend section 154 of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 to allow the director of Forensic Science Ireland to delegate his or her functions under the amended section 10 of the 1984 Act to appropriate officers of FSI.
Amendments Nos. 88 and 90 amend the Long Title consequential on the addition of these amendments.
Seanad amendment agreed to.
Seanad amendment No. 20:
Section 17: In page 24, to delete lines 1 to 14.
Seanad amendments Nos. 20 to 23, inclusive, and 89 are related and may be discussed together.
These amendments, in fairness to Deputy Carthy, arise as a result of an amendment he tabled on Committee Stage and Report Stage in the Dáil. I accepted his amendment, which inserts a new section into the Criminal Justice Act 1993 to provide that where a person is convicted of any indictable offence, character evidence for sentencing purposes must be given on oath or by affidavit. That amendment was included as section 17 of the Bill as passed by the Dáil. The purpose of amendments Nos. 20, 21 and 22 is to tighten up the drafting and address a number of drafting and consequential matters arising.
Amendment No. 20 deletes the existing section 23 of the Bill as passed by the Dáil and amendment No. 22 inserts in its place a new stand-alone provision, which is substantively the same, but is more precisely drafted and contains a transitional provision. Amendment No. 21, therefore, repeals that provision to prevent duplication on the Statute Book.
Amendment No. 23 inserts a new Part into the Bill to amend the Criminal Justice (Public Order) Act 1994 to address a specific public order issue, which is the deliberate use of face coverings for intimidatory purposes in public places, and particularly at protests. I stress that this is not a ban on face coverings, nor a ban on wearing face coverings at protests, nor does it create a general power for An Garda Síochána to require a person wearing a face covering in public to remove it. It is a limited addition to the public order framework, which may be exercised only in specific circumstances. The amendment provides that, where a member of An Garda Síochána suspects with reasonable cause that a person is acting in circumstances that give rise to a reasonable apprehension about public safety or for the maintenance of public peace and that the person is wearing the face covering with intent to intimidate another person or in a manner likely to intimidate another person, the garda may direct that person to desist from the conduct, remove the face covering and leave the vicinity. An offence only arises where a person "without lawful authority or reasonable excuse" fails to comply with that Garda direction. It will still be the case that people will be able to wear face masks for religious and cultural reasons and, even at a protest, people will still be able to wear a face mask. They may not want people to know they are there. The only time this public order offence would be triggered is in circumstances where a person is seeking to intimidate other people or it is likely a person's behaviour will intimidate them.
Amendment No. 89 amends the Long Title.
I thank the Minister for accepting my amendment on character references in trials. Unfortunately, we did not get to the amendment on Committee Stage. Reading back on the report, if I had been eating cornflakes, I would have nearly choked on them, such was my surprise that the Minister had accepted my amendment. I thank him for and commend him on doing so because it is a significant change to the law. It is a simple change, but will be helpful to victims and their families in their pursuit of justice.
The use of character references on sentencing in Irish courts has long been controversial and, in some cases, it has compounded the trauma of victims and their families. There has been an ongoing debate about the weight given to character references. Some judges have argued that they do not carry huge weight in determining the outcome of sentencing. That is debatable and certainly not an excuse for allowing what was a flawed system to continue. I have spoken to many people who were devastated as character references came out. Particularly where guilty pleas apply, as someone pleads guilty the whole details of the case might not be divulged to the court and might not be made public. Then a character reference is read out at a sentencing hearing in public talking about how great the individual might have been.
There have been serious questions about the accuracy of some of the character references given in public. I have also heard about a case - this was particularly concerning - where people supplied character references but did not realise that they were for a court case, or knew it was for a court case but did not know what crimes applied. Then there were questions around the veracity because they were written documents.
An important and welcome change was introduced in respect of sexual offences cases. In such cases, in recent years, references have had to be given on oath or under affidavit and, crucially, can be cross-examined in court. It made sense that this be the case for all indictable offences. It made little sense to have a higher standard in respect of character references in some cases than in others, particularly when they can relate to very serious crimes, including unlawful killings.
I was clear. My impetus for tabling this amendment came from dealing with people who had been in a court that was dealing with the unlawful killing of their loved one and, at the end of the case, someone said this individual was a great person. The sense those families had was that the character references played a role in downplaying the seriousness of the offence or the impact on the victim because they focused on the offender's reputation.
I met one victim in respect of whom a sentence for coercive control had been secured. The conviction was welcome and difficult, as can be imagined, and then an employer talked about how great the convicted person was at showing up to work on time, always left the place tidy and got on well with all their colleagues. None of that could possibly have had any implication in whether a person was engaged in coercively controlling their partner behind closed doors. I do not know. In fairness, the sentence in that case was reflective of the seriousness of the crime, but at the same time, it was difficult for the victim to hear that being read out. It transpired in that case - it was one of the cases I mentioned, as I contacted the employer involved - that the employer had no idea what the charge being dealt with was and the employer was subsequently embarrassed about it. In that instance, if people know that they are providing a reference they have to give under oath or by affidavit and that they could be cross-examined, we can be damn sure that employers would make sure they knew what they were giving a reference for beforehand.
I am pleased that will now change as a result of the Minister accepting this amendment. I support the Seanad amendment. It is set out in a clear way how this will apply. It is a major step forward for fairness and accountability in our courts and for victims who have been traumatised by the existing system, so I thank the Minister.
I will deal with two of the amendments in a moment, but first I add my voice to those who have already made the point about the modus operandi of how this Bill was developed and evolved with the adding of extra issues again and again. The last night, on the counselling notes issue, every Opposition party recognised it should have been dealt with as a separate issue because of its importance to survivors and because it was the Minister's first Bill on court processes. He has introduced other legislation, including Jennie's law and the law about the children of victims of femicide or murder, which I welcome. However, the way survivors were treated needs to be raised again. The last night we were here, we had approximately 40 minutes for the entire debate and, because we worked together, we at least maximised that time. However, survivors left here upset that night. They continued and followed the Bill to the Seanad, which was a slightly more positive experience because they at least heard the arguments we had been articulating, which probably got more time there. That made them feel somewhat better. However, particularly that night, they saw that one amendment was voted on and that they were just not listened to. This should not happen again, particularly with an issue of such importance.
I will raise two issues. The first is face coverings at protests. I have been at protests where people wore face coverings.
During the Covid pandemic, that was obviously a normal thing to do. The Debenhams workers were on strike throughout the pandemic, having been sacked by a multinational. We always encouraged people to wear face coverings, even when outside. However, there are people who wear face coverings not just for religious or cultural reasons, but for medical reasons. I know disabled activists who will not attend any event unless they can wear a mask. The Minister may say they will be protected in that but he knows that things like this can be abused. I am just not sure why he has included this provision in relation to protests. It may need a bit more explanation but here we are on the second last night of the Dáil term. I do not support what the Minister has included. It is something that needs a lot more debate. We all know that some people can cover their faces to intimidate others. I accept that but this is being introduced with 50 other issues in this Bill.
I will make a point about character references. I obviously support the amendment but we do have to return to this whole issue of character references in trials. On the one hand, I know the Minister would say that people have a right to a fair trial and that this is part of the very important constitutional right to a fair trial. That is a bit ironic because we also have non-jury courts. How do those things balance each other or even match? We say that the use of counselling notes and character references must be allowed and yet we can have non-jury trials. This is something that should be examined.
The upcoming Oireachtas committee may be able to examine it in more detail because these references are a real problem with regard to gender-based violence, given particular dynamics that pertain to gender-based and sexual violence. Most people who are given these references are not experts. A constituent contacted me who was the victim of sexual assault. Their brother was convicted of this but got a suspended sentence. This constituent believes that is because references were read out as the very last word in that trial. This man was convicted but then, all of a sudden, these references were read out. The references were from the father of the wife of the perpetrator. How is this person an expert in the dynamics of child sexual abuse? My constituent believes that this had an impact on the judge. We also know from several studies that men - women can obviously also commit gender-based violence but male violence is mainly the issue - who perpetrate domestic violence, coercive control or sexual violence are arch-manipulators. They are exceptionally skilled at deceiving people. They put one face on in public and another face on in private. There is a real problem with character references in these cases. It really is something that needs to be looked at. It has caused huge offence.
There is another thing the Minister could clear up. We were told that the Government had already changed the law so that a person had to be in court and ready to give, under oath-----
That is for sexual offences.
That did not happen in the recently reported case involving a former Fianna Fáil TD. He was not called up to testify.
It predated the legislation.
The Minister will have an opportunity to come back in.
I am just asking why it did not happen in that case. Was it because it was about parole? Is there a difference in that case?
I ask the Deputy to stick to the amendment.
It does not seem to have been fully applied. We definitely need to discuss this topic again.
I presume that was because the offence in that case predated the new legislation brought in requiring oral evidence in respect of references in cases of sexual offences. As a result of the amendment, this provision will now cover all indictable offences.
Seanad amendment agreed to.
Seanad amendment No. 21:
Section 19: In page 24, between lines 19 and 20, to insert the following:
“Repeal of Chapter 3 of Part 2 of Criminal Law (Sexual Offences and Human Trafficking) Act 2024 and transitional provision
19.(1) Chapter 3 of Part 2 of the Criminal Law (Sexual Offences and Human Trafficking) Act 2024 is repealed.
(2) Notwithstanding the repeal effected by subsection (1), the said Chapter 3 shall continue to have effect in respect of a person convicted of a specified offence referred to in that Chapter where the conviction occurred before the date of the coming into operation of this section.”.
Seanad amendment agreed to.
Seanad amendment No. 22:
Section 19: In page 24, between lines 19 and 20, to insert the following:
“Vouching of character of persons convicted of certain offences
20.(1) Subject to subsection (2), where a person is convicted of an indictable offence and he or she intends to adduce evidence of his or her character for the purpose of the determination by the court of the sentence to be imposed on him or her for the offence, such evidence shall—
(a) where the evidence is to be given orally before the court, be given on oath, or
(b) otherwise be given by affidavit.
(2) Subsection (1) shall apply only in respect of a person who is convicted of an offence referred to in that subsection on or after the date of the coming into operation of this section.”.
Seanad amendment agreed to.
Seanad amendment No. 23:
Section 19: In page 24, between lines 19 and 20, to insert the following:
“PART 8
AMENDMENT OF CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994
Amendment of Criminal Justice (Public Order) Act 1994
21. The Criminal Justice (Public Order) Act 1994 is amended—
(a) by the insertion of the following section after section 8B:
“Failure to comply with direction of member of An Garda Síochána to remove face covering
8C.(1) Where a member of An Garda Síochána finds a person in a public place wearing a face covering on his or her face and suspects, with reasonable cause, that such person is—
(a) without lawful authority or reasonable excuse, acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of public peace, and
(b) wearing the face covering on his or her face—
(i) with intent to intimidate another person, or
(ii) in a manner that is likely to intimidate another person,
the member may direct the person wearing the face covering so suspected to do any or all of the following:
(I) desist from acting in such a manner;
(II) remove the face covering from his or her face;
(III) leave immediately the vicinity of the place concerned in a peaceable or orderly manner.
(2) It shall be an offence for any person, without lawful authority or reasonable excuse, to fail to comply with a direction given by a member of An Garda Síochána under this section.
(3) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding €1,000 or to imprisonment for a term not exceeding 6 months or to both.
(4) In this section, ‘face covering’ means an article of any type, which, when worn by a person, covers the person’s face or part of the person’s face.”,
and
(b) in section 24(5), by the substitution of “8, 8C, 9A” for “8, 9A”.”.
Seanad amendment agreed to.
Seanad amendments Nos. 24 to 27, inclusive, are related and may be discussed together.
Seanad amendment No. 24:
Section 34: In page 31, line 9, to delete “subsection (1A)” and substitute “subsection (1B)”.
Amendments Nos. 24 to 27, inclusive, have been grouped. They relate to Part 11 of the Bill, which concerns the International Criminal Court. They are of a minor and very technical nature.
Seanad amendment agreed to.
Seanad amendment No. 25:
Section 34: In page 31, line 13, to delete “the crime” and substitute “subject to subsection (1A), the crime”.
Seanad amendment agreed to.
Seanad amendment No. 26:
Section 34: In page 31, to delete lines 20 to 26 and substitute the following:
“(b) by the insertion of the following subsections after subsection (1):
“(1A) For the purposes of paragraph (d) of the definition of crime within the jurisdiction of the International Criminal Court, the reference to Article 8 bis in the definition of crime of aggression shall not be construed as a reference to that Article as amended by a relevant amendment.
(1B) In this Act, a reference to a crime within the jurisdiction of the International Criminal Court shall be construed as including any act in respect of which a person who commits such an act is by virtue of Article 25, 27 or 28 criminally responsible for any of the acts referred to in paragraphs (a) to (f) of the definition of crime within the jurisdiction of the International Criminal Court in subsection (1).”.”.
Seanad amendment agreed to.
Seanad amendment No. 27:
Section 40: In page 33, line 9, to delete “proceedings” and substitute “proceedings for an offence”.
Seanad amendment agreed to.
Seanad amendment No. 28:
Section 44: In page 35, to delete lines 17 to 22.
Seanad amendment agreed to.
Seanad amendment No. 29:
Section 45: In page 35, between lines 22 and 23, to insert the following:
“Amendment of section 154 of Criminal Justice (Forensic Evidence and DNA Database System) Act 2014
45.
Section 154 of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 is amended—
(a) in subsection (1), by the substitution of “under this Act or under section 10 of the Misuse of Drugs Act 1984” for “under this Act”, and
(b) in subsection (4), by the substitution of “under a provision of this Act or under section 10 of the Misuse of Drugs Act 1984” for “under a provision of this Act”.”.
Seanad amendment agreed to.
Amendments Nos. 30 to 42, inclusive, are related and may be discussed together.
Seanad amendment No. 30:
Section 57: In page 48, line 10, to delete “proposes” and substitute “has decided”.
These are the amendments in respect of the disregard section of the Bill, which is Part 15. Amendments Nos. 30 to 36, inclusive, and 39 to 41, inclusive, are minor textual amendments to make certain terms and references clearer and more precise. The purpose of the remaining amendments is to make the provisions relating to the revocation of a disregard clearer and more robust, including certain procedural steps that could otherwise be regarded as implicit.
Amendment No. 37 inserts a new section obliging a relevant public body to make the Minister aware if it becomes aware of information indicating that a disregard may have been granted on foot of false or misleading information.
Amendment No. 38 amends section 60 of the Bill as passed by the Dáil to broaden the matters to which the Minister must have regard before forming an initial view that a disregard should be revoked.
Amendment No. 42 inserts a new subsection into section 61 in order to make express provision for the Minister to proceed with revoking a disregard where the applicant has not requested a review of the proposed revocation within the allotted timeframe or the Minister reasonably considers such a request to be frivolous, vexatious or otherwise unfounded.
Seanad amendment agreed to.
Seanad amendment No. 31:
Section 57: In page 48, line 13, to delete “proposed refusal” and substitute “decision”.
Seanad amendment agreed to.
Seanad amendment No. 32:
Section 59: In page 50, line 18, to delete “in accordance with” and substitute “made under”.
Seanad amendment agreed to.
Seanad amendment No. 33:
Section 59: In page 50, line 19, to delete “a proposed refusal under section”.
Seanad amendment agreed to.
Seanad amendment No. 34:
Section 59: In page 50, line 33, after “decision” to insert “made”.
Seanad amendment agreed to.
Seanad amendment No. 35:
Section 59: In page 50, line 36, to delete “proposed refusal” and substitute “decision made”.
Seanad amendment agreed to.
Seanad amendment No. 36:
Section 59: In page 51, line 4, to delete “proposed refusal to issue a certificate of disregard” and substitute “decision made”.
Seanad amendment agreed to.
Seanad amendment No. 37:
Section 60: In page 51, between lines 22 and 23, to insert the following:
“Public body obligation to bring certain information to attention of Minister
60. Where, having been notified of the issuance of a certificate of disregard in respect of a relevant person under section 63(3)(a), a public body subsequently becomes aware of information which might reasonably be grounds for a belief that the application upon which the certificate of disregard was granted included, or was supported by, false or misleading information or documentation, the public body shall, as soon as practicable, bring such information to the attention of the Minister.”.
Seanad amendment agreed to.
Seanad amendment No. 38:
Section 60: In page 51, to delete lines 26 to 28 and substitute the following:
“(a) having received information, under section 60 or otherwise, which causes him or her to reasonably believe—
(i) that an application upon which the certificate of disregard was granted included, or was supported by, false or misleading information or documentation, and
(ii) that, in all the circumstances, it is likely that the independent person would not have recommended that a certificate of disregard be issued in respect of the relevant conviction or other determination concerned had the application not included, or had it not been supported by, such false or misleading information or documentation,
and”.
Seanad amendment agreed to.
Seanad amendment No. 39:
Section 60: In page 52, line 37, to delete “should”.
Seanad amendment agreed to.
Seanad amendment No. 40:
Section 60: In page 52, line 39, after “had” to insert “it”.
Seanad amendment agreed to.
Seanad amendment No. 41:
Section 61: In page 53, line 21, after “applicant a notice” to insert “revoking the certificate”.
Seanad amendment agreed to.
Seanad amendment No. 42:
Section 61: In page 53, between lines 26 and 27, to insert the following:
“(2) Where, in relation to a notification made under section 60(1), the Minister has not received a request in accordance with section 60(3), or where he or she has received such a request but reasonably considers it to be frivolous, vexatious or otherwise manifestly unfounded, the Minister shall issue to the applicant a notice of revocation and any such notice shall be accompanied by reasons in writing for the decision to revoke the certificate of disregard concerned.”.
Seanad amendment agreed to.
Amendments Nos. 43 to 80, inclusive, 84 to 86, inclusive, and 91 are related and may be discussed together.
Seanad amendment No. 43:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“PART 16
USE OF ELECTRONIC TECHNOLOGY IN CERTAIN COURT PROCEEDINGS
Definitions (
Part 16
)
65. In this Part—
“criminal proceedings” means proceedings against a person for an offence and includes any appeal proceedings related to the offence;
“relevant proceedings” means proceedings under—
(a) the Extradition Act 1965,
(b) the Transfer of Sentenced Persons Act 1995,
(c) Part II of the International War Crimes Tribunals Act 1998,
(d) the European Arrest Warrant Act 2003,
(e) the Transfer of Execution of Sentences Act 2005,
(f) Part 3 of the International Criminal Court Act 2006, or
(g) Part 3 of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,
and includes any appeal proceedings related to such proceedings.”.
These amendments concern the use of electronic means. The main body of the amendments relate to passenger name records. I will briefly deal with amendments Nos. 43 to 45. These put in a new Part 17 relating to electronic technology in certain proceedings. Amendment No. 43 inserts a new section defining the types of proceedings in question. Amendments 44 and 45 insert two new sections to provide respectively that court rules may, in relation to such proceedings, make provision for the electronic transmission of documents. These amendments are modelled on equivalent legislation that is already in place in respect of civil proceedings.
I will now turn to amendments Nos. 46 to 80, inclusive, 84 to 86, inclusive, and 91. These relate to passenger name record data. They propose the insertion of a new Part 17. Passenger name record data, PNR data, consists of booking information provided by passengers, which is collected by and held in the airlines’ reservation and departure control systems. This provision is already in place a result of Ireland's transposition of the PNR directive by way of the 2018 EU PNR data regulations, which established a unit within the Department of justice.
The regulations apply the regime only to what are referred to as extra-EU flights, which is required by the directive. The purpose here is to apply them to internal EU flights as well.
Amendments Nos. 46 to 50, inclusive, insert Chapter 1 of Part 17. They are standard legislative provisions that refer to a definition sections and such other matters.
Amendment Nos. 51 to 56, inclusive, insert Chapter 2. This chapter relates to the Irish passenger information unit, its director, its data protection officer, other staff and its obligations as regards processing and reporting activities.
Amendments Nos. 57 to 59, inclusive, insert Chapter 3. Amendment No. 57 provides for the competent authorities designated under the 2018 regulations to remain so designated. Amendment No. 58 provides that the Minister may designate a person as the “Independent Authority” for the purposes of the State’s PNR regime. Amendment No. 59 sets out the Data Protection Commission’s oversight function as regards this legislation.
Amendments 60 to 62, inclusive, inserts new Chapter 4 of Part 17. The chapter provides for the designation by the PIU of individual intra-EU flights that will be encompassed by the State’s PNR regime. Amendment No. 62 provides for designation of all-intra EU flights unilaterally when the State is faced with a genuine and present or foreseeable terrorist threat, but only on approval by the High Court.
Amendments Nos. 63 to 71, inclusive, deal with the transfer and exchange of PNR data. Amendment No. 63 refers to airlines’ obligations to transfer PNR data to the PIU a day before take-off. Amendments Nos. 64 and 65 refer to the process undertaken by the PIU of assessing the transferred PNR data against serious crime or terrorism watchlists and pre-determined criteria to identify persons of interest due to take the flight or on-board.
Amendments Nos. 66 to 71, inclusive, deal with requests for PNR data held by the PIU from competent authorities in the State, PIUs in other EU countries, Europol and third countries, as well requests by the Irish PIU and other authorities.
Amendments Nos. 72 and 73 deal with the retention periods for PNR data and maintenance of documentation by the PIU.
Amendments Nos. 74 to 80, inclusive, insert chapter 7 of Part 17. It deals with transitional provisions.
Amendments Nos. 84, 85 and 86 insert Schedules 2, 3 and 4 into the Bill. Schedule 2 defines the data categories that make up the PNR data. Schedule 3 lists the competent authorities in the State that can request PNR data.
Amendment No. 91 amends the Long Title consequential on these amendments.
Seanad amendment agreed to.
Seanad amendment No. 44:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Use of electronic means in criminal proceedings and relevant proceedings
66.(1) Notwithstanding any other enactment or rule of law, and without prejudice to any such provision in any enactment or rules of court, rules of court may, in relation to criminal proceedings or relevant proceedings, make provision for—
(a) the lodgement or filing of a document with, and the making of an application to, a court by transmitting the document or application by electronic means to the court office concerned,
(b) the issue by or on behalf of a court or court office, by transmitting the document concerned by electronic means, of any of the following:
(i) a summons;
(ii) a judgment, decree or other order or determination of a court (including any judgment, decree or other order or determination entered in or issuing from a court office);
(iii) a warrant;
(iv) any other document required under any enactment or rule of law to be issued by or on behalf of a court or court office,
or
(c) the transmission by or on behalf of a court or court office by electronic means of any other document or information required under any enactment or rule of law to be transmitted by or on behalf of a court or court office.
(2) Where rules of court referred to in subsection (1) provide for the transmission of a document by electronic means, such rules may, in addition—
(a) provide that such transmission be subject to such conditions and exceptions as may be specified in the rules,
(b) in relation to the transmission of a document referred to in subsection (1)(a), require that—
(i) such a document be authenticated, and
(ii) the identity of the person transmitting such a document be verified, including by the provision of the personal public service number issued to the person,
in such manner as may be specified in the rules,
(c) in relation to the transmission of a document referred to in paragraph (b) or (c) of subsection (1), require that the identity of the person receiving such a document be verified, including by the provision of the personal public service number issued to the person, in such manner as may be specified in the rules, and
(d) specify whether such transmission is in place of, or is an alternative to, any other method by which such document could be filed, lodged, issued or transmitted, or such application could be made, as the case may be.
(3) Rules of court may provide that, where a document that is required under any enactment or rule of law to be furnished to, or lodged or filed with, a court, is, in accordance with rules of court referred to in subsection (1), furnished to, or lodged or filed with, the court by electronic means—
(a) a copy of that document transmitted by electronic means and displayed in readable form, or
(b) a printed version of such a copy,
shall be treated as the original of the document.
(4) References, howsoever expressed, in any enactment or rule of law to—
(a) the furnishing of a document to a court,
(b) the lodgement or filing of a document with a court,
(c) the making of an application to a court,
(d) the transmission of a document to or by a court, or
(e) the issue of a document by a court,
shall be construed as including references to the performance of such action by electronic means, where this is provided for in rules of court referred to in subsection (1).
(5) In this section—
“court office” means—
(a) an office of, or attached to—
(i) the Supreme Court,
(ii) the Court of Appeal,
(iii) the High Court,
(iv) the President of the High Court,
(v) the Circuit Court, or
(vi) the District Court,
or
(b) an office of the Courts Service designated by the Courts Service for the purpose of receiving documents or applications, or issuing documents, by electronic means for the purposes of any enactment or rule of law;
Seanad amendment agreed to.
Seanad amendment No. 45:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Statement of truth in criminal proceedings and relevant proceedings
67. (1) Subject to subsection (2), where, in criminal proceedings or relevant proceedings, evidence is to be given on, or a document or information is to be verified by, affidavit or statutory declaration, rules of court may, notwithstanding any other enactment or rule of law, make provision for a statement, which shall be known as a section 67 statement of truth, to be made and transmitted by electronic means in place of the affidavit or statutory declaration concerned and subject to such conditions and exceptions as may be specified by such rules.
(2) A section 67 statement of truth—
(a) may be in electronic form,
(b) shall contain a statement that the person making the statement of truth has an honest belief that the facts stated therein are true,
(c) may be signed by the person making it by that person entering his or her name in an electronic format or otherwise electronically as may be permitted by rules of court, and
(d) shall comply with any other requirements as to its content, verification, authentication or form as may be prescribed by rules of court.
(3) Where rules of court have made provision for the matters referred to in subsection (1), any reference in any enactment to an affidavit or a statutory declaration shall be construed as including a reference to a section 67 statement of truth which may be made in place of such affidavit or statutory declaration by virtue of that subsection.
(4) Without prejudice to the law as to contempt of court, a person who makes, or causes to be made, a statement in a section 67 statement of truth without an honest belief as to the truth of that statement shall be guilty of an offence.
(5) A person guilty of an offence under subsection (4) shall be liable—
(a) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years, or both.”.
Seanad amendment agreed to.
Seanad amendment No. 46:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“PART 17
Passenger Name Record Data
Chapter 1
Preliminary and General
Interpretation (
Part 17
)
68.(1) In this Part—
“air carrier” means an air transport provider with a valid operating licence or equivalent permitting it to carry out carriage of passengers by air;
“API data” means advance passenger information and includes the type, number, country of issuance and expiry date of any identity document, nationality, family name, given name, gender, date of birth, airline, flight number, departure date, arrival date, departure port, arrival port, departure time and arrival time;
“competent authority” means an authority—
(a) referred to in section 79(1), or
(b) designated under section 79(2),
that is competent for the prevention, detection, investigation and prosecution of a terrorist offence or serious crime;
“competent authority of another Member State” means an authority of another Member State that is competent for the prevention, detection, investigation and prosecution of—
(a) a terrorist offence (within the meaning of paragraph (b) of the definition of that term), or
(b) a serious crime (within the meaning of paragraph (b) of the definition of that term);
“competent authority of a third country” means an authority of a third country that is competent for the prevention, detection, investigation and prosecution of a terrorist offence or serious crime under the law of that third country;
“data protection officer” shall be construed in accordance with section 76(1);
“designated intra-EU flight” shall be construed in accordance with section 69;
“Directive” means Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime;
“Director” means the Director of the PIU;
“extra-EU flight” means a scheduled or non-scheduled flight by an air carrier flying—
(a) from a third country and planned to land in the State, or
(b) from the State and planned to land in a third country,
including a flight with any stop-overs in another Member State or in a third country;
“Independent Authority” has the meaning assigned to it by section 80(1);
“intra-EU flight” means a scheduled or non-scheduled flight by an air carrier flying—
(a) from a Member State and planned to land in the State, or
(b) from the State and planned to land in one or more than one Member State,
without any stop-overs in the territory of a third country;
“Minister” means the Minister for Justice, Home Affairs and Migration;
“notify” means notify in writing;
“PIU” means the Passenger Information Unit continued in being under section 73;
“PIU of another Member State” means the Passenger Information Unit established or designated by that other Member State in accordance with Article 4(1), and cognate words shall be construed accordingly;
“PNR data” means, subject to subsections (2) to (6), the passenger name record data specified in Schedule 2 collected by an air carrier;
“PNR database” means the database maintained by the PIU for the storage of PNR data;
“prescribed” means prescribed by regulations made by the Minister;
“push method” means the method whereby PNR data is transferred by an air carrier into the PNR database;
“Regulations of 2018” means the European Union (Passenger Name Record Data) Regulations 2018 (S.I. No. 177 of 2018);
“serious crime”—
(a) in sections 82(2), 88(1), 88(2), 90(1), 90(3), 90(4) and 94(7), means—
(i) an offence specified in Schedule 3 that is punishable by a custodial sentence or a detention order of a maximum period of at least 3 years, or
(ii) such other offence, within the meaning of Article 3(9), as may be prescribed by the Minister,
(b) in sections 85(9), 89(1), 89(5), 89(8) and 91(1), has the same meaning as it has in Article 3(9), and
(c) in sections 69, 86(1) and 94(1), means an offence referred to in paragraph (a) or (b), or both;
“terrorist offence”—
(a) in sections 82(2), 88(1), 88(2), 90(1)0, 90(3), 90(4) and 94(7) means—
(i) an offence under—
(I) section 21 or 21A of the Offences against the State Act 1939 (where committed by a terrorist group within the meaning of section 5(1) of the Criminal Justice (Terrorist Offences) Act 2005),
(II) section 6 of the Offences Against the State (Amendment) Act 1998 (where committed by a terrorist group within the meaning of section 5(1) of the Criminal Justice (Terrorist Offences) Act 2005), or
(III) section 6 or 13 of the Criminal Justice (Terrorist Offences) Act 2005, or
(ii) such other offence, within the meaning of Article 3(8), as may be prescribed by the Minister,
(b) in sections 85(9), 89(1), 89(5), 89(8) and 91(1) has the same meaning as it has in Article 3(8), and
(c) in sections 69
84(1), 86(1) and 94(1), means an offence referred to in paragraph (a) or (b), or both.
(2) A reference in paragraph 5 of Schedule 2 to address and contact information (telephone number, email address) shall be taken to be a reference to the postal address, telephone number and email address of the air passenger on behalf of whom a reservation for a flight is made.
(3) A reference in paragraph 6 of Schedule 2 to all forms of payment information, including billing address shall be taken to be a reference to information relating to the payment methods for, and billing of, an air ticket, to the exclusion of any other information not directly related to a flight.
(4) A reference in paragraph 8 of Schedule 2 to frequent flyer information shall be taken to be a reference only to data relating to the status of the passenger concerned in the context of a customer loyalty programme of a given airline or a given group of airlines as well as the number identifying that passenger as a frequent flyer.
(5) A reference in paragraph 12 of Schedule 2 to general remarks (including all available information on unaccompanied minors under 18 years, such as name and gender of the minor, age, language(s) spoken, name and contact details of guardian on departure and relationship to the minor, name and contact details of guardian on arrival and relationship to the minor, departure and arrival agent) shall be taken to be a reference to the following information only:
(a) the name, gender and age of, and the languages spoken by, unaccompanied minor air passengers under 18 years,
(b) the name and contact details of the guardian on departure and his or her relationship to the minor,
(c) the name and contact details of the guardian on arrival and his or her relationship to the minor, and
(d) the departure and arrival agent.
(6) A reference in paragraph 18 of Schedule 2 to any advance passenger information (API) data collected (including the type, number, country of issuance and expiry date of any identity document, nationality, family name, given name, gender, date of birth, airline, flight number, departure date, arrival date, departure port, arrival port, departure time and arrival time shall be taken to be a reference to the following information only:
(a) API data (the type, number, country of issuance and expiry date of any identity document, nationality, family name, given name, gender, date of birth, airline, flight number, departure date, arrival date, departure port, arrival port, departure time and arrival time), and
(b) API data listed in Regulation 3(2) of the European Communities (Communication of Passenger Data) Regulations 2011 (S.I. No. 597 of 2011).
(7) Unless the context otherwise requires—
(a) a word or expression that is used in this Part and that is also used in the Directive has the same meaning in this Part that it has in the Directive, and
(b) a reference in this Part to a numbered Article is a reference to the Article so numbered of that Directive.”.
Seanad amendment agreed to.
Seanad amendment No. 47:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Application (
Part 17)
69. This Part applies to the use, for the prevention, detection, investigation and prosecution of a terrorist offence or a serious crime, of PNR data of a passenger of—
(a) an extra-EU flight, and
(b) an intra-EU flight that is designated under section 82 or 84 (in this Part referred to as a “designated intra-EU flight”).”.
Seanad amendment agreed to.
Seanad amendment No. 48:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Orders and regulations
70. (1) The Minister may by regulations provide for any matter referred to in this Part as prescribed or to be prescribed.
(2) An order or regulation under this Part may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the order or regulation.
(3) Every order and regulation made by the Minister under this Part shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.
Seanad amendment agreed to.
Seanad amendment No. 49:
Section 65: Subject to sections 73(1), 74(2), 75(1), 75(2), 75(3), 76(2), 79(1), 86(3) and Chapter 7, the Regulations of 2018 are revoked.”.
Seanad amendment agreed to.
Seanad amendment No. 50:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Service of notices and documents
72. A notice or other document that is required to be served on or given to a person under this Part shall be served on or given to the person in one of the following ways:
(a) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner;
(b) by delivering it to the person;
(c) by addressing it to the person and leaving it at the address where the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(d) by sending it to the person by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
CHAPTER 2
Passenger Information Unit”.
Seanad amendment agreed to.
Seanad amendment No. 51:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Continuation and functions of Passenger Information Unit
73.(1) Notwithstanding the coming into operation of section 71, the unit established under Regulation 4(1) of the Regulations of 2018 and known as the Passenger Information Unit (in this Part referred to as the “PIU”) shall continue in being as a unit in the Department of Justice, Home Affairs and Migration, in accordance with the provisions of this Part.
(2) The functions of the PIU shall include:
(a) the collection of PNR data from air carriers, and the storage and processing of such data;
(b) the designation of intra-EU flights in accordance with section 82;
(c) the transfer of PNR data, and the result of any processing of such data under paragraph (a), to a competent authority, the PIU or competent authority of another Member State, a competent authority of a third country or Europol;
(d) the receipt of PNR data, and the result of any processing of such data, from the PIU of another Member State.”.
Seanad amendment agreed to.
Seanad amendment No. 52:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Director of PIU
74. (1) The Minister shall, subject to subsection (2), appoint a person to be the Director of the PIU (in this Part referred to as the “Director”).
(2) A person who, immediately before the coming into operation of section 71, stands appointed as Director under Regulation 4(2) of the Regulations of 2018, shall, on such coming into operation, continue to be the Director.
(3) The Director shall manage and control generally the staff, administration and business of the PIU.
(4) The Minister shall nominate a person to perform the functions of the Director during any absence, incapacity or suspension from duty of the Director or during any vacancy in the office of Director.
(5) The Director may delegate in writing any of his or her functions to a member of staff of the PIU and the member of staff be accountable to the Director for the performance of the function so delegated.
(6) The Director may revoke a delegation made by him or her under subsection (5).”.
Seanad amendment agreed to.
Seanad amendment No. 53:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Staff of PIU
75. (1) A person who, immediately before the coming into operation of section 71, was a member of staff of the PIU shall, on such coming into operation, continue to be a member of staff of the PIU.
(2) A person who, immediately before the coming into operation of section 71, stands seconded to the PIU under an arrangement entered into under Regulation 4(3) of the Regulations of 2018 shall, on such coming into operation, remain seconded to the PIU for the remainder of the period of such secondment, subject to the same terms and conditions as applied to the secondment immediately before such coming into operation.
(3) A person who, immediately before the coming into operation of section 71, stands engaged by the PIU under Regulation 4(4) of the Regulations of 2018 for a period of temporary service with the PIU shall, on such coming into operation, continue to be engaged by the PIU for the remainder of that period, subject to the same terms and conditions as applied to the engagement immediately before such coming into operation.
(4) The Director may enter into an arrangement with a competent authority for the secondment of a member of staff of the competent authority to the PIU.
(5) The Director may enter into an arrangement to engage one or more than one person (on contract or otherwise) for a period of temporary service with the PIU.”.
Seanad amendment agreed to.
Seanad amendment No. 54:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Data protection officer
76. (1) Subject to subsection (2), the Director shall appoint a person (in this Part referred to as the “data protection officer”) who shall be responsible for monitoring the processing of PNR data under this Part and for implementing data protection safeguards.
(2) A person who, immediately before the coming into operation of section 71, stands appointed as data protection officer under Regulation 14(1) of the Regulations of 2018 shall, on such coming into operation, continue as data protection officer as if he or she had been appointed under this section.
(3) The functions of the data protection officer shall include the following:
(a) informing the Director and staff of the PIU of their obligations in relation to the processing of PNR data under this Part and advising them in relation to those obligations;
(b) monitoring compliance by the Director and staff of the PIU with—
(i) their obligations under this Part in relation to the processing of PNR data, and
(ii) the policies of the PIU as data controller in relation to the protection of personal data, including audit activity;
(c) providing advice to the Director and staff of the PIU on awareness-raising activities, staff training and the allocation of responsibilities in relation to data protection;
(d) advising the Director and staff of the PIU in relation to, and monitoring the carrying out of, data protection impact assessments;
(e) acting as a contact point for persons both within and outside the PIU in respect of issues relating to the processing of PNR data by the PIU.
(4) The PIU shall notify the data protection officer of—
(a) a transfer of PNR data under section 88(5), 89(4), 89(11), 91(4), 92(5) or 93(1) in advance of such transfer taking place, and
(b) a transfer notified to the PIU in accordance with section 92(8).
(5) Where the data protection officer is informed by the PIU under subsection (4)(a) of a transfer of PNR data, the data protection officer shall, after the transfer has taken place, carry out a review of the transfer for the purpose of monitoring compliance by the PIU with the provisions of this Part concerning the processing of PNR data.
(6) The Director shall—
(a) ensure that the data protection officer is involved in an appropriate and timely manner in all matters relating to the protection of personal data,
(b) support the data protection officer in performing the functions referred to in subsection (3) by providing him or her with access to processing operations and the resources necessary to carry out those functions, and
(c) assist the data protection officer in maintaining his or her expert knowledge in relation to data protection.”.
Seanad amendment agreed to.
Seanad amendment No. 55:
Section 65:
In page 55, between lines 5 and 6, to insert the following:
“Director to report statistical information to Minister
77. (1) Subject to subsection (3), the Director shall, on a yearly basis, and not later than 31 May in each year, submit to the Minister a report containing statistical information on PNR data provided to the PIU.
(2) The statistics referred to in subsection (1) shall, at a minimum, cover—
(a) the total number of passengers whose PNR data have been collected and exchanged by the PIU, and
(b) the number of passengers identified for further examination by a competent authority or a competent authority of another Member State.
(3) The statistics provided under this Part shall not contain any personal data.”.
Seanad amendment agreed to.
Seanad amendment No. 56:
Section 65: In page 55, between lines 5 and 6, to insert the following:
Processing of PNR data by PIU
78. (1) The PIU shall process PNR data for the purpose of the performance of its functions under this Part—
(a) to the extent necessary and proportionate for that purpose, and
(b) in a manner that does not discriminate against a person on any grounds.
(2) PNR data shall not be processed by the PIU in such a manner as to reveal the race, ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, health, sexual life or sexual orientation of a person.
(3) Where PNR data revealing the information referred to in subsection (2) are received by the PIU from an air carrier, they shall be deleted immediately.
(4) Where PNR data collected by the PIU include data other than those specified in Schedule 2, such data shall be deleted immediately and permanently upon receipt.
(5) The storage, processing and analysis of PNR data by the PIU shall be carried out exclusively within a secure location or locations within the State.
(6) The PIU shall put in place and implement appropriate technical and organisational measures and procedures to ensure a high level of security for the PNR data appropriate to the risks represented by the processing and nature of such data.
Seanad amendment agreed to.
Seanad amendment No. 57:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Competent authorities
79. (1) Notwithstanding the coming into operation of section 71, a competent authority referred to in Regulation 9 of the Regulations of 2018 and listed in Schedule 4, shall continue to be a competent authority for the purposes of this Part and the Directive.
(2) Subject to subsection (3), the Minister may by order designate a body as a competent authority for the purposes of this Part.
(3) The Minister shall not make an order under subsection (2) in respect of a body for which a Minister of the Government other than the Minister has responsibility and in whom functions, whether statutory or otherwise, in respect of the body are vested, other than with the consent of that Minister of the Government.”.
Seanad amendment agreed to.
Seanad amendment No. 58:
Section 65: In page 55, between lines 5 and 6, to insert the following:
Designation and functions of Independent Authority
80. (1) The Minister may by order designate a person (in this Part referred to as the “Independent Authority”) as the national authority for the purposes of the performance of the functions conferred on it by this Part.
(2) The functions of the Independent Authority shall include—
(a) the review of—
(i) in accordance with section 83, the process for designation by the PIU of an intra-EU flight under section 82, and
(ii) an authorisation for the transfer of PNR data under section 93, and
(b) the approval of—
(i) an application for the transfer of PNR data under section 88, 89, 91 or 92, and
(ii) a request for PNR data under subsection (1) of section 90 to which subsection (5) of that section applies.
(3) The Independent Authority shall have all powers necessary or expedient for the performance of its functions under this Part.
(4) The Independent Authority shall be independent in the performance of its functions.”.
Seanad amendment agreed to.
Seanad amendment No. 59:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Data Protection Commission 81. The Data Protection Commission shall be responsible for advising on and monitoring the application of this Part within the State with a view to protecting fundamental rights in relation to the processing of personal data under this Part.
CHAPTER 4
Designation of intra-EU flights by PIU and Minister”.
Seanad amendment agreed to.
Seanad amendment No. 60:
Section 65: In page 55, between lines 5 and 6, to insert the following:
Designation by PIU of intra-EU flight
82. (1) Subject to subsection (2), the PIU may designate in writing an intra-EU flight for the purposes of this Part for a period not exceeding 6 months from the date of designation.
(2) A designation under subsection (1) may only be made where the PIU carries out an assessment and determines, having due regard to the risks to the fundamental rights and freedoms of data subjects which may result from the designation, that—
(a) the designation is necessary and proportionate for the purpose of preventing, detecting, investigating and prosecuting a terrorist offence or serious crime, and
(b) there is an objective link, whether of a direct or an indirect nature, between the offence or crime and the carriage of passengers by air.
(3) The PIU shall, before the expiry of the period of 6 months following the designation of an intra-EU flight under subsection (1), carry out an assessment for the purpose of determining whether the designation of the designated intra-EU flight concerned is, having due regard to the risks to the fundamental rights and freedoms of data subjects which may result from the designation, necessary and proportionate for the purpose referred to in subsection (2).
(4) Where, on the basis of an assessment under subsection (3), the PIU determines that the continued designation of an intra-EU flight is necessary and proportionate for the purpose referred to in that subsection, the PIU may extend the designation of the intra-EU flight concerned for a further period not exceeding 6 months.
(5) Where, on the basis of an assessment under subsection (3), the PIU determines that the continued designation of an intra-EU flight is not necessary and proportionate for the purpose referred to in that subsection, the PIU shall not extend the designation of the intra-EU flight concerned.
(6) Without prejudice to subsection (3), the PIU may, at any time, where it consider it appropriate to do so, carry out an assessment of a designation in force under this section for the purpose referred to in that subsection.
(7) Where, on the basis of an assessment carried out under subsection (6), the PIU determines that the designation of an intra-EU flight is no longer necessary and proportionate for the purposes for which it was so designated, the PIU shall revoke the designation.”.
Seanad amendment agreed to.
Seanad amendment No. 61:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Review by Independent Authority
83. (1) Subject to subsection (5), the Independent Authority shall conduct a review of the process for designation of an intra-EU flight under section 82 in order to determine whether the PIU, in carrying out an assessment of an intra-EU flight under subsection (2), (3) and, where applicable, (6) of that section (in this section referred to as a “relevant assessment”), complied with those provisions.
(2) In conducting a review under subsection (1), the Independent Authority may—
(a) consider the criteria applied by the PIU in determining whether the designation of an intra-EU flight is necessary and proportionate for the purpose referred to in section 82(2), and
(b) examine a relevant assessment carried out in respect of one, or more than one, intra-EU flight designated under section 82, whether or not the designation is in force at the time of the review.
(3) Without prejudice to subsection (4), a review under subsection (1) shall be conducted—
(a) in respect of the first review, not later than 12 months from the date on which the first intra-EU flight is designated under section 82 following the coming into operation of this Part, and
(b) once in every 12 month period thereafter.
(4) The Independent Authority may, at any time, conduct a review under subsection (1) where it has reasonable grounds for believing that a relevant assessment was not carried out by the PIU in accordance with section 82.
(5) Before commencing a review under subsection (1), the Independent Authority shall notify the Director of its proposal to conduct the review, which notice shall specify—
(a) the matters referred to in subsection (2) to which the review shall relate,
(b) the date on which the review shall commence, which shall not be earlier than 10 working days from the date on which the notice is given, and
(c) any documents, records or other information within the possession or control of the PIU that are relevant to, or required for, the conduct of the review, including details of the criteria referred to at subsection (2)(a).
(6) The Independent Authority shall, as soon as practicable after the completion of a review under subsection (1), notify the PIU of the outcome of the review.
(7) Where the Independent Authority, having carried out a review under subsection (1), determines that the PIU, in carrying out a relevant assessment, did not comply with the requirements of section 82, the Independent Authority may issue a direction in writing to the Director specifying—
(a) the measures which the PIU is required to take in order to comply with the requirements of section 82 in the carrying out of a relevant assessment under that section, and
(b) the timeframe within which such measures are to be completed.
(8) The Director shall comply with a direction issued under subsection (7).
(9) The Director shall, within the timeframe specified in the direction, notify the Independent Authority of the measures taken by the PIU to comply with the direction.
(10) The Independent Authority may, where it is not satisfied that the Director has complied with a direction under subsection (7), issue such further direction under that subsection as it considers appropriate.
(11) A direction issued under subsection (7) may, where the Independent Authority considers it appropriate, require the PIU to revoke a designation of an intra-EU flight that is in force under section 82 at the time of the issuing of the direction.
(12) The Independent Authority may communicate with the Minister on any matter concerning a review under this section, including where it considers that the PIU has failed to comply with a direction under subsection (7).
(13) The Minister may, where he or she receives a communication under subsection (12), direct the PIU to comply with a direction issued under subsection (7) within such timeframe as the Minister may specify.”.
Seanad amendment agreed to.
Seanad amendment No. 62:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Application to relevant judge by Minister for designation of all intra-EU flights
84. (1) The Minister may, where he or she is satisfied, on the basis of an assessment conducted in accordance with subsection (2), that there exists a genuine and present or foreseeable threat related to a terrorist offence, make an application to a relevant judge for an order requiring the PIU to designate all intra-EU flights as designated intra-EU flights for such period as may be specified in the order.
(2) Before making an application under subsection (1), the Minister shall assess whether the threat referred to in that subsection exists and, for that purpose, shall—
(a) have regard to the necessity and proportionality of the designation of all intra-EU flights for the purpose of the prevention, detection, investigation and prosecution of the terrorist offence, taking into account the risks to the fundamental rights and freedoms of data subjects which may result from the designation, and
(b) be satisfied of the existence of an objective link, whether of a direct or an indirect nature, between the offence and the carriage of passengers by air.
(3) An application under subsection (1) shall—
(a) be made ex parte,
(b) be upon information on oath specifying the grounds on which the order is sought, which information shall include the results of the assessment conducted under subsection (2),
(c) specify the period of time, being a period not exceeding 12 months, for which the designation referred to in subsection (1) is, in the view of the Minister, necessary and proportionate for the purposes referred to in subsection (2), and (d) be heard otherwise than in public.
(4) A relevant judge, as respects an application under subsection (1), may make an order directing the PIU to designate all intra-EU flights as designated intra-EU flights only if satisfied that the making of the order is necessary for, and proportionate to, the purposes referred to in subsection (2).
(5) Where a relevant judge makes an order under subsection (4), that order shall—
(a) require the PIU to designate all intra-EU flights as designated intra-EU flights for such period as is specified in the order, and (b) specify—
(i) the period for which the order shall have effect, and
(ii) any conditions and directions to which the designation is subject.
(6) Where an order is made under subsection (4), the Minister shall, without delay, arrange for—
(a) service of the order on the PIU, and
(b) publication of—
(i) the order in the national media, and
(ii) a notice of the making of the order in Iris Oifigiúil.
(7) The President of the High Court shall, at the request of the Minister, designate one or more than one judge of the High Court to perform the functions of a relevant judge under this section, and a reference in this section to a “relevant judge” shall be construed as a reference to a judge so designated.
CHAPTER 5
Transfer and exchange of PNR data”.
Seanad amendment agreed to.
Seanad amendment No. 63:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Obligations of air carriers regarding transfer of PNR data
85. (1) An air carrier shall, in accordance with this section, transfer by the push method to the PNR database all PNR data which it has collected in the normal course of business in respect of passengers to be carried by the air carrier on an extra-EU flight or on a designated intra-EU flight.
(2) Where a flight referred to in subsection (1) is code-shared between one or more air carriers, the air carrier which operates the flight shall transfer the PNR data of all passengers on the flight to the PIU in accordance with that subsection.
(3) An air carrier shall, where an extra-EU flight has one or more stop-overs at airports of Member States, transfer the PNR data of all passengers, including those who disembark at the time of a stop-over, to the PIU.
(4) An air carrier shall, where a designated intra-EU flight has one or more stop-overs at airports of Member States, transfer the PNR data of all passengers, including those who disembark at the time of a stop-over, to the PIU.
(5) Where an air carrier collects API data in respect of passengers on an extra-EU flight or a designated intra-EU flight, the air carrier shall, whether or not it retains those data by the same technical means as for other PNR data, transfer that API data to the PIU by the push method and such data shall be considered as PNR data for the purposes of this Part.
(6) Subject to subsections (7) and (8), an air carrier shall transfer the PNR data referred to in subsection (1) to the PNR database—
(a) 24 to 48 hours before a scheduled flight departure time, and
(b) immediately after flight closure, that is once the passengers have boarded the aircraft in preparation for departure and it is no longer possible for passengers to board or leave the flight.
(7) An air carrier shall transfer the PNR data referred to in subsection (1) to the PNR database—
(a) by electronic means using the common protocols and supported data formats adopted in accordance with Article 16(2), or
(b) in the event of technical failure or difficulty, by any other appropriate means ensuring the same level of technical and organisational security.
(8) An air carrier may limit PNR data transferred under paragraph (b) of subsection (6) to an update of the PNR data already transferred under paragraph (a) of that subsection.
(9) An air carrier shall, on a case-by-case basis, where requested by the PIU under section 89(11)(a), transfer PNR data to the PIU at times other than those provided for in subsection (6)—
(a) where access to that data is necessary in order to respond to a specific and actual threat related to a terrorist offence or serious crime, and
(b) the PIU has determined, in accordance with section 89(8), there is an objective link, whether of a direct or an indirect nature, between the offence or crime referred to in paragraph (a) and the carriage of passengers by air.
(10) An air carrier shall use its best endeavours to ensure that any data collected by it that is not PNR data is not transferred to the PIU.
(11) An air carrier that fails to comply with a requirement under this section, other than the requirement under subsection (10), shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a class A fine, or
(b) on conviction on indictment, to a fine not exceeding €250,000.
(12) It shall be a defence for an air carrier charged with an offence under subsection (11) to show that it took all reasonable steps to ensure compliance with this section.
(13) Proceedings for an offence under this section may be brought and prosecuted summarily by the Director.
(14) Where an offence under subsection (11) is committed by a body corporate and is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(15) Where the affairs of a body corporate are managed by its members, subsection (14) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.”.
Seanad amendment agreed to.
Seanad amendment No. 64:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Assessment of passengers by PIU
86. (1) The PIU shall carry out an assessment of PNR data in respect of passengers on—
(a) an extra-EU flight, or
(b) a designated intra-EU flight, prior to their scheduled arrival in, or departure from, the State for the purpose of identifying persons who require further examination by a competent authority or a competent authority in another Member State and, where relevant, by Europol, to determine whether such persons may be, or may have been, involved in a terrorist offence or serious crime, in respect of which there is an objective link, whether of a direct or an indirect nature, with the carriage of passengers by air.
(2) Subject to subsection (3), the PIU may determine criteria (in this section referred to as “pre-determined criteria”) to be used in processing PNR data for the purpose of conducting an assessment under subsection (1) and, where such criteria are determined, they shall—
(a) be targeted, proportionate and specific in nature,
(b) be regularly reviewed in consultation with the competent authorities, and
(c) not, in any circumstance, be based on the race, ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual life or sexual orientation of a person.
(3) Notwithstanding the coming into operation of section 71, where immediately before the coming into operation of that section, pre-determined criteria referred to in Regulation 5 of the Regulations of 2018 are in use in conducting assessments under that Regulation, those criteria shall be considered to be pre-determined criteria for the purposes of this section until new criteria are established under subsection (5).
(4) When carrying out an assessment under subsection (1), the PIU may—
(a) compare PNR data against databases relevant for the purpose referred to in that subsection, only where such databases are databases containing data on persons or objects sought or under alert, in accordance with European Union, international and national law and the laws of the State applicable to such databases, or
(b) process PNR data against pre-determined criteria.
(5) The PIU may establish pre-determined criteria and may, from time to time, update those criteria.”.
Seanad amendment agreed to.
Seanad amendment No. 65:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Transfer of PNR data to another Member State and to competent authority
87. (1) Where the PIU carries out an assessment under section 86(1) and identifies a person who requires further examination by a competent authority in another Member State, the PIU shall, subject to subsection (4), transfer the PNR data relating to that person and, where applicable, the result of the processing of such data by it, to the PIU of the Member State concerned for onward transfer to the competent authority in the Member State concerned.
(2) Where the PIU carries out an assessment under section 86(1) and identifies a person who requires further examination by a competent authority, the PIU shall, subject to subsection (4), transfer the PNR data relating to that person and, where applicable, the result of the processing of such data by it, to the competent authority concerned.
(3) Where the PIU of another Member State transfers PNR data, or the result of the processing of such data, or both, to the PIU for onward transfer by the PIU to a competent authority, the PIU shall, subject to subsection (4), transfer the data and, where applicable, the result of the processing of such data, to the competent authority that is to carry out further examination of the data.
(4) Where a person referred to in subsection (1) or (2) has been identified by the automated processing of PNR data, the PIU shall only transfer the PNR data relating to that person, in accordance with those subsections, where the PIU has carried out a review of the identification by non-automated means and has verified the identification of the person concerned.”.
Seanad amendment agreed to.
Seanad amendment No. 66:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Request by competent authority for PNR data
88.(1) A competent authority is entitled—
(a) to request, under subsection (2), and receive, under section 87(2), PNR data, and the result of the processing of such data by the PIU, from the PIU, and
(b) to request, under section 90(3), PNR data, and the result of the processing of such data by the PIU of another Member State, from that PIU,
in order to examine that data and take appropriate action for the purpose of preventing, detecting, investigating and prosecuting a terrorist offence or serious crime.
(2) Where a request is received by the PIU from a competent authority for PNR data, or the result of the processing of such data by the PIU, or both, the PIU shall, subject to section 93, make an application to the Independent Authority for approval to transfer the data requested to the competent authority concerned where on the basis of the request—
(a) the PIU considers there are reasonable grounds for believing that—
(i) the transfer of the data requested is necessary for the purpose of preventing, detecting, investigating and prosecuting a terrorist offence or serious crime, and
(ii) there is an objective link, whether of a direct or an indirect nature, between the offence or crime and the carriage of passengers by air,
and
(b) the PIU—
(i) where the request relates to a request for PNR data relating to a serious crime, has a reasonable suspicion that a person, to whom the PNR data, the subject of the request, relates, is involved in any way with the crime, or
(ii) where the request relates to a request for PNR data relating to a terrorist offence, infers that the PNR data, the subject of the request, could contribute effectively to the combatting of the offence.
(3) An application under subsection (2) shall be in writing, submitted by electronic means, and shall contain a copy of the request referred to in that subsection.
(4) Following receipt of an application under subsection (2), the Independent Authority shall review the application and, as soon as practicable and in any event not later than 96 hours after receiving the application, shall—
(a) decide, on the basis of the application, whether to approve the transfer of the PNR data, and, where applicable, the result of the processing of such data, and
(b) notify the PIU of the decision of the Independent Authority and the reasons for that decision.
(5) Where, under subsection (4), the Independent Authority approves the transfer of the data requested, the PIU shall, as soon as practicable after receipt of the notification under paragraph (b) of that subsection, transfer the data to the competent authority concerned.
(6) Subject to subsection (7), PNR data, and the result of the processing of such data by the PIU, transferred to a competent authority under subsection (5), may be processed by the competent authority only for the purpose of preventing, detecting, investigating and prosecuting a terrorist offence or serious crime.
(7) Where evidence of an offence, other than the one referred to in subsection (6), is detected during the processing of data referred to in that subsection, that subsection shall not affect law enforcement or judicial powers to process that data for purposes relating to that other offence.
(8) A competent authority shall not take any decision that produces an adverse legal effect on a person or significantly affects the person—
(a) only by reason of the automated processing of PNR data, or
(b) on the basis of the race or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, health, sexual life or sexual orientation of the person.”.
Seanad amendment agreed to.
Seanad amendment No. 67:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Request from other Member State for PNR data
89. (1) Where a request is received by the PIU from the PIU of another Member State for PNR data, or the result of the processing of such data by the PIU, or both, the PIU shall, subject to section 93, make an application to the Independent Authority for approval to transfer the data requested, to the PIU of the other Member State where, on the basis of the request—
(a) the PIU considers there are reasonable grounds for believing that—
(i) the transfer of the data requested is necessary for the purpose of preventing, detecting, investigating and prosecuting a terrorist offence or serious crime, and
(ii) there is an objective link, whether of a direct or an indirect nature, between the offence or crime and the carriage of passengers by air,
and
(b) the PIU—
(i) where the request relates to a request for PNR data relating to a serious crime, has a reasonable suspicion that a person, to whom the PNR data, the subject of the request, relates, is involved in any way with the crime, or
(ii) where the request relates to a request for PNR data relating to a terrorist offence, infers that the PNR data, the subject of the request, could contribute effectively to the combatting of the offence.
(2) An application under subsection (1) shall be in writing, submitted by electronic means, and shall contain a copy of the request referred to in that subsection.
(3) Following receipt of an application under subsection (1), the Independent Authority shall review the application and, as soon as practicable and in any event not later than 96 hours after receiving the application, shall—
(a) decide, on the basis of the application, whether to approve the transfer of the PNR data and, where applicable, the result of the processing of such data, and
(b) notify the PIU of the decision of the Independent Authority and the reasons for that decision.
(4) Where, under subsection (3), the Independent Authority approves the transfer of the data requested, the PIU shall, as soon as practicable after receipt of the notification under paragraph (b) of that subsection, transfer the data to the PIU of the other Member State.
(5) Where, in the case of an emergency, a competent authority of another Member State submits to the PIU a direct request for PNR data, or the result of the processing of such data by the PIU, or both, the PIU shall, subject to section 93, make an application to the Independent Authority for approval to transfer the data requested to the competent authority of the other Member State where, on the basis of the request—
(a) the PIU considers there are reasonable grounds for believing that—
(i) the circumstances set out in the request constitute an emergency and the transfer of the data requested is necessary for the purpose of preventing, detecting, investigating and prosecuting a terrorist offence or serious crime, and
(ii) there is an objective link, whether of a direct or an indirect nature, between the offence or crime and the carriage of passengers by air,
and
(b) the PIU—
(i) where the request relates to a request for PNR data relating to a serious crime, has a reasonable suspicion that a person, to whom the PNR data, the subject of the request, relates, is involved in any way with the crime, or
(ii) where the request relates to a request for PNR data relating to a terrorist offence, infers that the PNR data, the subject of the request, could contribute effectively to the combatting of the offence.
(6) An application under subsection (5) shall be in writing, submitted by electronic means, and shall contain a copy of the request referred to in that subsection.
(7) Subsections (3) and (4) shall apply to an application under subsection (5) as they apply to an application under subsection (1), subject to the modification that a reference in subsections (3) and (4) to subsection (1) shall be construed as a reference to subsection (5).
(8) Where, in exceptional circumstances, a request is received by the PIU from the PIU of another Member State to obtain PNR data from an air carrier at a time other than that provided for in section 85(6), the PIU shall, subject to section 93, make an application to the Independent Authority for approval to transfer the PNR data to the PIU of the Member State concerned where, on the basis of the request—
(a) the PIU considers there are reasonable grounds for believing that—
(i) the transfer of the PNR data requested is necessary for the purpose of responding to a specific and actual threat related to a terrorist offence or serious crime, and
(ii) there is an objective link, whether of a direct or an indirect nature, between the offence or crime and the carriage of passengers by air,
and
(b) the PIU—
(i) where the request relates to a request for PNR data relating to a serious crime, has a reasonable suspicion that a person to whom the PNR data, the subject of the request, relates, is involved in any way with the crime, or
(ii) where the request relates to a request for PNR data relating to a terrorist offence, infers that the PNR data, the subject of the request, could contribute effectively to the combatting of the offence.
(9) An application under subsection (8) shall be in writing, submitted by electronic means, and shall contain a copy of the request referred to in that subsection.
(10) Following receipt of an application under subsection (8), the Independent Authority shall review the application and, as soon as practicable and in any event not later than 96 hours after receiving the application, shall—
(a) decide, on the basis of the application, whether to approve the transfer of the PNR data, and
(b) notify the PIU of the decision of the Independent Authority and the reasons for that decision.
(11) Where, under subsection (10), the Independent Authority approves the transfer of the PNR data requested, the PIU shall as soon as practicable after receipt of the notification under paragraph (b) of that subsection—
(a) request the air carrier to transfer the PNR data to the PIU in accordance with section 85(7), and
(b) provide the PNR data to the PIU of the Member State concerned.”.
Seanad amendment agreed to.
Seanad amendment No. 68:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Requests by PIU or competent authority to PIU of another Member State for PNR data
90.(1) Subject to subsection (5), the PIU may make a request for PNR data, or the result of the processing of such data by the PIU of another Member State, or both, to that PIU where the PIU considers—
(a) there are reasonable grounds for believing that—
(i) the transfer of the data to the PIU, is necessary for the purpose of preventing, detecting, investigating and prosecuting a terrorist offence or serious crime, and
(ii) there is an objective link, whether of a direct or an indirect nature between the offence or crime and the carriage of passengers by air,
and
(b) the PIU—
(i) where the request relates to a request for PNR data relating to a serious crime, has a reasonable suspicion that a person, to whom the PNR data, the subject of the request, relates, is involved in any way with the crime, or
(ii) where the request relates to a request for PNR data relating to a terrorist offence, infers that the PNR data, the subject of the request, could contribute effectively to the combatting of the offence.
(2) A request under subsection (1) may be for one or more of the PNR data elements listed in Schedule 2, as are considered necessary by the PIU for the purpose referred to in that subsection, and shall include the reasons for the request.
(3) In cases of emergency, a competent authority may make a request for PNR data, or the result of the processing of such data by the PIU of another Member State, or both, directly to that PIU, where the competent authority considers—
(a) there are reasonable grounds for believing that—
(i) the circumstances set out in the request constitute an emergency and the transfer of the data to the competent authority is necessary for the preventing, detecting, investigating and prosecuting a terrorist offence or serious crime, and
(ii) there is an objective link, whether of a direct or an indirect nature, between the offence or crime and the carriage of passengers by air,
and
(b) the competent authority—
(i) where the request relates to a request for PNR data relating to a serious crime, has a reasonable suspicion that a person, to whom the PNR data, the subject of the request, relates, is involved in any way with the crime, or
(ii) where the request relates to a request for PNR data relating to a terrorist offence, infers that the PNR data, the subject of the request, could contribute effectively to the combatting of the offence.
(4) In exceptional circumstances, the PIU may request the PIU of another Member State to request an air carrier to transfer PNR data to the PIU of that Member State at a time other than the time the air carrier normally transfers PNR data to the PIU of the other Member State concerned, and transmit the data to the PIU, where the PIU considers—
(a) there are reasonable grounds for believing that—
(i) the transfer of the data to the PIU is necessary for the purpose of responding to a specific and actual threat related to a terrorist offence or serious crime, and
(ii) there is an objective link, whether of a direct or an indirect nature, between the offence or crime and the carriage of passengers by air,
and
(b) the PIU—
(i) where the request relates to a request for PNR data relating to a serious crime, has a reasonable suspicion that a person, to whom the PNR data, the subject of the request, relates, is involved in any way with the crime, or
(ii) where the request relates to a request for PNR data relating to a terrorist offence, infers that the PNR data, the subject of the request, could contribute effectively to the combatting of the offence.
(5) Where, in the case of a request referred to in subsection (1), it is a requirement in the Member State to which the request referred to in that subsection is made that, before such a request is made to the PIU in that Member State, a court or other independent authority in the requesting Member State provide approval for the transfer of the PNR data, and, where applicable, the result of the processing of such data, the PIU shall make an application to the Independent Authority for approval to have the data transferred to it by the PIU of the other Member State.
(6) An application under subsection (5) shall be in writing, submitted by electronic means, and shall contain a copy of the request which the PIU proposes to make to the PIU of the other Member State.
(7) Following receipt of an application under subsection (5), the Independent Authority shall review the application and, as soon as practicable and in any event not later than 96 hours after receiving the application, shall—
(a) decide, on the basis of the application, whether to approve the transfer of the PNR data and, where applicable, the result of the processing of such data, to the PIU, and
(b) notify the PIU of the decision of the Independent Authority and the reasons for that decision.
(8) Where, under subsection (7), the Independent Authority approves the transfer of data by the PIU of the other Member State, the PIU shall, when making a request under subsection (1) to which subsection (5) applies, notify the PIU of that other Member State of the decision of the Independent Authority.”.
Seanad amendment agreed to.
Seanad amendment No. 69:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Request by Europol to PIU for PNR data
91. (1) Where a request for PNR data, or the result of the processing of such data by the PIU, or both, is received by the PIU from Europol, having been submitted by Europol to the PIU in accordance with Article 10, the PIU shall, subject to section 93, make an application to the Independent Authority for approval to transfer the data to Europol where, on the basis of the request—
(a) the PIU considers there are reasonable grounds for believing that—
(i) the transfer of the data requested will substantially contribute to the prevention, detection or investigation of a terrorist offence or serious crime, and
(ii) there is an objective link, whether of a direct or an indirect nature, between the offence or crime and the carriage of passengers by air,
and
(b) the PIU—
(i) where the request relates to a request for PNR data relating to a serious crime, has a reasonable suspicion that a person, to whom the PNR data, the subject of the request, relates, is involved in any way with the crime, or
(ii) where the request relates to a request for PNR data relating to a terrorist offence, infers that the PNR data, the subject of the request, could contribute effectively to the combatting of the offence.
(2) An application under subsection (1) shall be in writing, submitted by electronic means, and shall contain a copy of the request referred to in that subsection.
(3) Following receipt of an application under subsection (1), the Independent Authority shall review the application and, as soon as practicable and in any event not later than 96 hours after receiving the application, shall—
(a) decide, on the basis of the application, whether to approve the transfer of the PNR data and, where applicable, the result of the processing of such data, to Europol, and
(b) notify the PIU of the decision of the Independent Authority and the reasons for that decision.
(4) Where, under subsection (3), the Independent Authority approves the transfer of the data requested, the PIU shall, as soon as practicable after receipt of the notification under paragraph (b) of that subsection, transfer the data to Europol in accordance with Article 10(4).”.
Seanad amendment agreed to.
Seanad amendment No. 70:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Transfer of data to competent authority of third country
92. (1) Where a request is received by the PIU from a competent authority of a third country for PNR data, or the result of the processing of such data by the PIU, or both, the PIU may, subject to section 93, make an application to the Independent Authority for approval to transfer the data to the competent authority of the third country concerned, where, on the basis of the request—
(a) the PIU considers there are reasonable grounds for believing that—
(i) the transfer of the data requested is necessary for the purpose of preventing, detecting, investigating and prosecuting a terrorist offence or serious crime in a Member State or the third country making the request, and
(ii) there is an objective link, whether of a direct or an indirect nature, between the offence or crime and the carriage of passengers by air,
(b) the PIU is satisfied that the circumstances referred to in subsection (2) apply, and
(c) the PIU—
(i) where the request relates to a request for PNR data relating to a serious crime, has a reasonable suspicion that a person, to whom the PNR data, the subject of the request, relates, is involved in any way with the crime, or
(ii) where the request relates to a request for PNR data relating to a terrorist offence, infers that the PNR data, the subject of the request, could contribute effectively to the combatting of the offence.
(2) The circumstances referred to in subsection (1) are that—
(a) the transfer is consistent with the law of the State in relation to data protection,
(b) subject to subsection (6), where the data that are sought in the request under subsection (1) were obtained by the PIU from the PIU of another Member State, the other Member State has given its prior consent to the transfer.
and
(c) the third country concerned agrees that it will only transfer the PNR data that is the subject of the request to another third country where—
(i) such transfer is strictly necessary for the purpose of the prevention, detection, investigation and prosecution of a terrorist offence or serious crime in a Member State or the third country making the request, in respect of which offence or crime there is an objective link, whether of a direct or an indirect nature, with the carriage of passengers by air, and
(ii) having received the express written authorisation of the Director.
(3) An application under subsection (1) shall be in writing, submitted by electronic means, and shall contain a copy of the request referred to in that subsection.
(4) Following receipt of an application under subsection (1), the Independent Authority shall review the application and, as soon as practicable and in any event not later than 96 hours after receiving the application, shall—
(a) decide, on the basis of the application, whether to approve the transfer of the PNR data and, where applicable the result of the processing of such data, and
(b) notify the PIU of the decision of the Independent Authority and the reasons for that decision.
(5) Where, under subsection (4), the Independent Authority, approves the transfer of the data requested, the PIU shall, as soon as practicable after receipt of the notification under paragraph (b) of that subsection, transfer the data to the competent authority of the third country.
(6) For the purposes of subsection (2)(b), in exceptional circumstances, the PIU may, where PNR data is obtained by it from another Member State, permit the transfer of that data to a competent authority of a third country without the prior consent of the other Member State from which the PNR data were obtained, only if—
(a) the transfer is essential in order to respond to a specific and actual threat related to a terrorist offence or serious crime in a Member State or third country, and
(b) the prior consent of the Member State concerned cannot be obtained in good time.
(7) Where subsection (6) applies in respect of a transfer of data under subsection (5), the PIU shall, without delay, notify the PIU of the Member State from which the PNR data were originally obtained and make a record of the notification.
(8) Where the PIU is notified by a PIU of another Member State that there has been a transfer, by that PIU, to a third country of PNR data—
(a) that was originally obtained from the PIU, and (b) without the prior consent of the PIU, the PIU shall make a record of the notification and shall notify the data protection Officer for the purposes of section 76(5).
(9) PNR data shall be transferred under this section by the PIU to the competent authority of a third country only in accordance with the provisions of this Part and upon ascertaining that the use the recipients intend to make of the PNR data is consistent with the conditions and safeguards contained in this Part.
(10) In this section— “serious crime” means—
(a) where it relates to an offence in a Member State, an offence referred to in paragraph (b) of the definition of “serious crime”, and
(b) where it relates to an offence in a third country, an offence in the third country equivalent to that referred to in paragraph (a);
“terrorist offence” means—
(a) where it relates to an offence in a Member State, an offence referred to in paragraph (b) of the definition of “terrorist offence”, and
(b) where it relates to an offence in a third country, an offence in the third country equivalent to that referred to in paragraph (a).”.
Seanad amendment agreed to.
Seanad amendment No. 71:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Disclosure of PNR data in case of duly justified urgency
93.(1) Where—
(a) but for this section, the PIU would, in respect of a request under section 88(2), 89(1), 89(5), 89(8), 91(1) or 92(1), otherwise be satisfied to bring an application to the Independent Authority under the subsection concerned for approval to transfer data, and
(b) where the circumstances specified in subsection (2) apply in respect of the request,
the Director shall authorise the transfer of the data, or the result of the processing of such data, or both, which is the subject of that request, in accordance with this section.
(2) The circumstances referred to in subsection (1) are that the Director is satisfied, on the basis of the request, that it is likely that, before approval for the transfer of the data concerned could be obtained from the Independent Authority under the subsection concerned, the prevention, detection, investigation and prosecution of a terrorist offence or serious crime, to which the request relates, would be impeded.
(3) Where the Director authorises the transfer of PNR data under subsection (1), he or she shall, as soon as practicable, and in any event not later than 24 hours after he or she issues the authorisation, apply to the Independent Authority for review of the authorisation.
(4) An application under subsection (3) shall—
(a) be made in writing, and
(b) specify the grounds on which the authorisation under subsection (1) was issued.
(5) Following receipt of an application under subsection (3), the Independent Authority, as soon as practicable, and in any event not later than 72 hours after receiving the application shall—
(a) review the grounds for the authorisation issued under subsection (1) for the purpose of determining whether it was necessary for, and proportionate to, the purposes for which it was issued,
(b) determine, on the basis of the review carried out under paragraph (a), whether to affirm or revoke the authorisation, and
(c) notify the PIU of its decision and the reasons for that decision.
(6) Where the Independent Authority revokes an authorisation under subsection (5), the notice referred to in paragraph (c) of that subsection shall direct the Director to, without delay, notify the person specified in subsection (7) that—
(a) the data transferred pursuant to the authorisation should be deleted, and
(b) that the use or further use of that data by the person is prohibited.
(7) The person referred to in subsection (6) is—
(a) in the case of a transfer of data to a competent authority pursuant to a request under section 88(2), the competent authority concerned,
(b) in the case of a transfer of data to the PIU of another Member State pursuant to a request under section 89(1) or (8), or a competent authority of another Member State pursuant to a request under section 89(5), the PIU of the Member State or competent authority of the Member State concerned,
(c) in the case of a transfer of data to Europol pursuant to a request under section 91(1), Europol, and
(d) in the case of a transfer of data to a competent authority of a third country pursuant to a request under section 92, the competent authority of the third country that made the request under that section.
(8) Where the Independent Authority revokes an authorisation under subsection (4), the Authority may, where it considers it appropriate to do so, refer the matter to the Data Protection Commission.
Chapter 6
Retention of PNR data and documentation”.
Seanad amendment agreed to.
Seanad amendment No. 72:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Period of data retention and depersonalisation
94.(1) PNR data transferred by an air carrier or by the PIU of another Member State to the PIU may be retained in the PNR database—
(a) for an initial period of 6 months from the date of the transfer, and
(b) after the expiration of the period referred to in paragraph (a), for a further period not exceeding 4 years and 6 months, where—
(i) the PIU has determined, having processed the PNR data in accordance with this Part during that initial period of 6 months—
(I) that there exists, in respect of the data, objective evidence of a risk related to a terrorist offence or serious crime, and
(II) there is an objective link, whether of a direct or an indirect nature, between the offence or crime referred to in clause (I) and the carriage of passengers by air,
and
(ii) the data are depersonalised in accordance with subsection (3).
(2) Where the PIU does not make a determination referred to in subsection (1)(b)(i) during the period referred to in that provision in respect of PNR data, the PNR data concerned shall be deleted permanently.
(3) PNR data shall be depersonalised through masking out the following data elements which could serve to identify directly a passenger to whom the PNR data relates:
(a) passenger name or names, including the—
(i) names of other passengers on the passenger name record, and
(ii) number of passengers on the passenger name record travelling together;
(b) address and contact information;
(c) all forms of payment information, including billing address, to the extent that it contains any information which could serve to identify directly the passenger to whom the PNR data relate or any other persons;
(d) frequent flyer information;
(e) any general remarks relating to the PNR data to the extent that they contain any information which could serve to identify directly the passenger to whom the PNR data relate;
(f) any API data that have been collected.
(4) Where an assessment is carried out under section 86(1) and the result of that assessment is the identification of a person who requires further examination by a competent authority or a competent authority in another Member State (in this section referred to as a “positive match”), that result shall only be retained by the PIU for as long as is necessary to—
(a) transfer the PNR data relating to that person and, where applicable, the result of the processing of such data by the PIU, to the PIU of the Member State concerned under section 87(1), or
(b) transfer the PNR data relating to that person and, where applicable, the result of the processing of such data by the PIU, to the competent authority concerned under section 87(2).
(5) Where an assessment is carried out under section 86(1) by automated processing and results in a positive match, which, following an individual review by non-automated means in accordance with section 87(4), is proven not to be a positive match (in this section referred to as a “false positive match”), the result of the automated processing and the result of the review by non-automated means may be retained by the PIU, for the purpose of avoiding future false positive matches in respect of the person, for a period not exceeding 6 months from when the PNR data were received by the PIU.
(6) PNR data retained in accordance with subsection (1) shall be deleted permanently upon the expiration of the period of 5 years from the date they were transferred to the PIU.
(7) PNR data, or the result of the processing of such data, or both, that have been transferred to a competent authority by the PIU shall be deleted permanently by the competent authority—
(a) upon the expiration of a period of 5 years from the date they were transferred to the competent authority, or
(b) where the data were retained by the competent authority for the purpose of the prevention, detection, investigation and prosecution of a terrorist offence or serious crime and proceedings for such offence are brought against any person, on the day on which final judgment is given in the proceedings,
whichever occurs later.
(8) The Director shall ensure that all PNR data retained by the PIU in accordance with this section are kept securely and that only such persons as are authorised in writing by him or her shall be permitted to have access to such data.”.
Seanad amendment agreed to.
Seanad amendment No. 73:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Maintenance of documentation and retention of records
95.(1) The PIU shall maintain documentation relating to all of its systems and procedures relating to the processing of personal data under this Part, which documentation shall contain at a minimum—
(a) the name and contact details of members of staff of the PIU authorised to process PNR data and, where applicable, levels of access authorised to that data;
(b) details of the requests made to the PIU by competent authorities and PIUs of other Member States under this Part;
(c) details of all requests from, and transfers to, a competent authority of a third country of PNR data, or the result of the processing of such data by the PIU.
(2) The PIU shall keep records of the processing operations involving the collection, consultation, disclosure and erasure of PNR data.
(3) Records kept under subsection (2) in relation to the consultation and disclosure of PNR data shall include, in particular, details of—
(a) the purpose, date and time of the processing operation concerned, and
(b) in so far as is possible—
(i) the identity of the staff member of the PIU who consulted or disclosed the PNR data, and
(ii) in the case of data that is disclosed, the identity of the recipients of such data.
(4) Records kept under subsection (2) shall be—
(a) used by the PIU solely for the purposes of verification, self-monitoring, ensuring data integrity and security and auditing, and
(b) subject to subsection (5), kept for a period of 5 years.
(5) Where records kept under subsection (2) contain PNR data, that PNR data shall be retained in accordance with section 94.
(6) The PIU shall, on request of the Data Protection Commission, make available to the Commission all documentation and records required to be maintained under this section.
(7) The Director shall ensure that all documentation created by or on behalf of, and maintained by, the PIU in relation to processing systems and procedures, and all records kept by the PIU in accordance with this section, are kept securely and that only such persons as are authorised in writing by him or her shall be permitted to have access to such documentation or records.
Chapter 7
Transitional provisions: Regulations of 2018”.
Seanad amendment agreed to.
Seanad amendment No. 74:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Interpretation (Part 17, Chapter 7)
96.A reference in this Chapter to a numbered Regulation is a reference to that Regulation so numbered in the Regulations of 2018.”.
Seanad amendment agreed to.
Seanad amendment No. 75:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Transitional arrangements in relation to assessment of PNR data by PIU
97.(1) Where, before the date of coming into operation of section 71, the PIU has commenced but not completed an assessment referred to in Regulation 5(1)(a), the assessment shall, on or after that date, be completed under section 86 and the provisions of this Part shall apply accordingly to that assessment.
(2) Where—
(a) before the coming into operation of section 71, the PIU has carried out an assessment referred to in Regulation 5(1)(a) and has identified a person who requires further examination, and
(b) on that date, the PIU has not transmitted the PNR data or the result of the processing of such data in accordance with Regulation 6(1) or (2),
the assessment shall, on and after that date, be taken to be an assessment carried out under section 86(1) and the provisions of this Part shall apply accordingly.”.
Seanad amendment agreed to.
Seanad amendment No. 76:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Transitional provisions: transfers of PNR data to the PIU
98.(1) Where—
(a) before the date of coming into operation of section 71, an air carrier has transferred to the PIU—
(i) PNR data, in accordance with Regulation 10(1) or (2), or
(ii) API data, in accordance with Regulation 10(3),
and
(b) on that date, an assessment referred to in Regulation 5(1)(a) has not been commenced by the PIU, or has been commenced but has not been completed,
the transfer of the data by the air carrier to the PIU shall, on and after that date, be taken to be a transfer—
(i) in the case of PNR data referred to in subsection (1)(a)(i), section 85(1), and
(ii) in the case of API data referred to in subsection (1)(a)(ii), section 85(5),
and the provisions of this Part shall apply accordingly.
(2) Where—
(a) before the date of coming into operation of section 71, PNR data relating to a person, or the result of the processing of those data, have been transmitted to the PIU by the PIU of another Member State under Regulation 6(3), and
(b) on that date, the data have not been transmitted by the PIU to the relevant competent authority (within the meaning of the Regulations of 2018),
the data shall, on and after that date, be taken to be data received by the PIU under section 87(3) and the provisions of this Part shall apply accordingly.”.
Seanad amendment agreed to.
Seanad amendment No. 77:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Transitional provisions: requests to PIU for PNR data
99.(1) Where—
(a) before the date of coming into operation of section 71, a request is received by the PIU for PNR data, or the result of the processing of such data, from—
(i) the PIU of another Member State, under paragraph (1) of Regulation 7, or
(ii) a competent authority of another Member State under paragraph (4) of that Regulation,
and
(b) on that date, the PNR data, or the result of the processing of such data, have not been transmitted to the PIU of the other Member State, or the competent authority of the other Member State, as the case may be, on foot of the request,
the request shall, on and after that date, be taken to be—
(i) in the case of a request referred to in paragraph (a)(i), a request received under section 89(1), and
(ii) in the case of a request referred to in paragraph (a)(ii), a request submitted under section 89(5),
and the provisions of this Part shall apply accordingly.
(2) Where—
(a) before the date of coming into operation of section 71, a request is received by the PIU for PNR data, or the result of the processing of such data, from—
(i) a PIU of another Member State, under paragraph (2) of Regulation 7, or
(ii) a competent authority of another Member State, under paragraph (5) of that Regulation,
and
(b) on that date, an application has not been made to the District Court under paragraph (2) or paragraph (5), as the case may be, of that Regulation,
the request shall, on and after that date, be taken to be—
(i) in the case of a request referred to in paragraph (a)(i), a request received under section 89(1), and
(ii) in the case of a request referred to in paragraph (a)(ii), a request submitted under section 89(5),
and the provisions of this Part shall apply accordingly.
(3) Where before the date of coming into operation of section 71—
(a) a request is received by the PIU for PNR data, or the result of the processing of such data, from—
(i) a PIU of another Member State, under paragraph (2) of Regulation 7, or
(ii) a competent authority of another Member State, under paragraph (5) of that Regulation,
and
(b) an application has been made to the District Court under paragraph (2) or paragraph (5), as the case may be, of that Regulation, but has not been determined by that Court that date,
then on or after that date, that application shall be determined by the District Court in accordance with the Regulations of 2018 and, where the District Court approves the transmission of the data concerned, the PIU shall transfer the full data to the PIU of the other Member State, or the competent authority of the other Member State, as the case may be, in accordance with that Regulation.
(4) Where—
(a) before the date of coming into operation of section 71, the transmission of data has been approved by the District Court under paragraph (2) or (5) of Regulation 7, and
(b) on that date, the data have not been transferred under the paragraph concerned following such approval,
then on or after that date, the PIU shall transfer the full data to the PIU of the other Member State, or the competent authority of the other Member State, as the case may be, in accordance with that Regulation.
(5) Where—
(a) before the date of coming into operation of section 71, a request is received under paragraph (7) of Regulation 7 by the PIU from the PIU of another Member State to obtain PNR data from an air carrier, and
(b) on that date, the PIU has not requested the air carrier concerned to transfer the requested data to the PIU,
the request shall be taken to be a request under section 89(8) and the provisions of this Part shall apply accordingly.
(6) Where—
(a) before the date of coming into operation of section 71, a request is received under Regulation 8(1) by the PIU from Europol for PNR data, or the result of the processing of such data, and
(b) on that date, the data have not been transferred to Europol,
the request shall, on and after that date, be taken to be a request received by the PIU under section 91(1), and the provisions of this Part shall apply accordingly.
(7) Where—
(a) before the date of coming into operation of section 71, a request is received under paragraph (2) of Regulation 8 by the PIU from Europol for PNR data, or the result of the processing of such data, and
(b) on that date, an application has not been made to the District Court under that Regulation,
the request shall, on and after that date, be taken to be a request received by the PIU under section 91(1) and the provisions of this Part shall apply accordingly.
(8) Where—
(a) before the date of coming into operation of section 71, a request is received under paragraph (2) of Regulation 8 by the PIU from Europol for PNR data, or the result of the processing of such data, and
(b) on that date, an application has been made to the District Court under that Regulation but has not been determined by that Court,
then, on or after that date, that application shall be determined by the District Court in accordance with the Regulations of 2018, and where the District Court approves the transmission of the data concerned, the PIU shall transmit the full data to Europol in accordance with that Regulation.
(9) Where—
(a) before the date of coming into operation of section 71, the transmission of data has been approved by the District Court under paragraph (2) of Regulation 8, and
(b) on that date, the data have not been transmitted under that provision following such approval,
then, on or after that date, the PIU shall transmit the full data to Europol in accordance with that Regulation.
(10) Where—
(a) before the date of coming into operation of section 71, a request is received under paragraph (2) of Regulation 9 by the PIU from a competent authority for PNR data, or the result of the processing of such data, and
(b) on that date, an application has not been made to the District Court under that Regulation,
the request shall, on and after that date, be taken to be a request made under section 88(2) and the provisions of this Part shall apply accordingly.
(11) Where before the coming into operation of section 71—
(a) a request is received under paragraph (2) of Regulation 9 by the PIU from a competent authority for PNR data, or the result of the processing of such data, and
(b) an application has been made to the District Court under that Regulation but has not been determined by that Court,
then, on or after that date, that application shall be determined by the District Court in accordance with the Regulations of 2018, and where the District Court approves the transmission of the data concerned, disclosure of the full PNR data may be made in accordance with that Regulation.
(12) Where—
(a) before the date of coming into operation of section 71, the transmission of data has been approved by the District Court under paragraph (2) of Regulation 9, and
(b) on that date, the data have not been disclosed under that provision following such approval,
then, on or after that date, disclosure of the full PNR data may be made in accordance with that Regulation.
(13) Where—
(a) before the date of coming into operation of section 71, a request has been received by the PIU under paragraph (1) of Regulation 16 from a third country for PNR data, or the result of the processing of such data, and
(b) on that date, the PNR data, or the result of the processing of such data, have not been transmitted to the third country,
the request shall, on and after that date, be taken to be a request received by the PIU under section 92(1) and the provisions of this Part shall apply accordingly.
(14) Where—
(a) before the date of coming into operation of section 71, a request is received by the PIU under paragraph (2) of Regulation 16 from a third country for PNR data, or the result of the processing of such data, and
(b) on that date, an application has not been made to the District Court under that Regulation,
the request shall, on and after that date, be taken to be a request received by the PIU under section 92(1) and the provisions of this Part shall apply accordingly.
(15) Where—
(a) before the date of coming into operation of section 71, a request is received by the PIU under paragraph (2) of Regulation 16 from a third country for PNR data, or the result of the processing of such data, and
(b) on that date, an application has been made to the District Court under that Regulation but has not been determined by that Court,
then, on or after that date, that application shall be determined by the District Court in accordance with the Regulations of 2018, and where the District Court approves the transmission of the data concerned, the PIU shall transmit the full data to the third country concerned in accordance with that Regulation.
(16) Where—
(a) before the date of coming into operation of section 71, the transmission of data has been approved by the District Court under paragraph (2) of Regulation 16, and
(b) on that date, the data have not been transmitted under that provision following such approval,
then, on or after that date, the PIU shall transmit the full data to the third country concerned in accordance with that Regulation.
(17) Where—
(a) before the date of coming into operation of section 71, a transfer of PNR data to a third country has taken place pursuant to paragraph (3) of Regulation 16 without the prior consent of the Member State from which the PNR data were obtained, and
(b) on that date, the PIU has not informed the PIU of the Member State concerned of the transfer,
the PNR data shall, on and after that date, be taken to have been transferred in accordance with section 92(6), and the provisions of this Part shall apply accordingly.”.
Seanad amendment agreed to.
Seanad amendment No. 78:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Transitional provisions: requests by PIU for PNR data
100.(1) Where—
(a) before the date of coming into operation of section 71, a request is made by the PIU to the PIU of another Member State under paragraph (8) or (10) of Regulation 7, and
(b) on that date, the data requested have not been transferred to the PIU by the PIU of the other Member State concerned,
the request shall, on and after that date, be taken to be—
(i) in the case of a request under paragraph (8) of that Regulation, a request under section 90(1), and
(ii) in the case of a request under paragraph (10) of that Regulation, a request under section 90(4),
and the provisions of this Part shall apply accordingly.
(2) Where—
(a) before the date of coming into operation of section 71, a request is made by a competent authority to the PIU of another Member State under paragraph (9) of Regulation 7, and
(b) on that date, the PNR data requested have not been transferred to the competent authority by the PIU of the Member State concerned,
the request shall, on and after that date, be taken to be a request under section 90(3), and the provisions of this Part shall apply accordingly.”.
Seanad amendment agreed to.
Seanad amendment No. 79:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Transitional provisions: retention of PNR data
101.(1) PNR data that is, immediately before the date of coming into operation of section 71, lawfully retained in a database of the PIU, may, on the coming into operation of that section, continue to be retained under section 94, subject to the modifications that, in the case of data continued to be retained pursuant to this section—
(a) a reference in section 94(1)(a) to an initial period of 6 months from the date of the transfer shall be taken to be a reference to the balance of an initial period of 6 months from the date of the transfer of the PNR data concerned to the PIU under the Regulations of 2018, and
(b) a reference in section 94(1)(b) to a further period not exceeding 4 years and 6 months shall be taken to be a reference to the balance of a period, not exceeding 4 years and 6 months commencing on the date of the expiration of the initial period of 6 months from the date of the transfer of the PNR data under the Regulations of 2018.
(2) PNR data that is, immediately before the date of coming into operation of section 71, lawfully retained by a competent authority, in accordance with Regulation 11 shall, on the coming into operation of that section, continue to be retained by that competent authority under subsection (7) of section 94, subject to the modification that, in the case of data continued to be retained pursuant to this section, a reference in paragraph (a) of that subsection to a period of 5 years shall be taken to be a reference to the balance of the period of 5 years referred to in Regulation 11(3)(a).
(3) Where immediately before the date of coming into operation of section 71 the result of an assessment of passengers under Regulation 5(1)(a) has been retained for the purpose referred to in that provision, the PIU may, on and after that date, continue to retain that result under subsection (4) of section 94 for as long as is necessary for the purpose referred to in paragraphs (a) or (b), as the case may be, of that subsection.
(4) Where the result of automated processing has been proven to be negative as referred to in Regulation 11(6) and that result is, immediately before the coming into operation of section 71, retained by the PIU in accordance with that provision for a period of less than 6 months, that result may, on the coming into operation of that section, continue to be retained by the PIU under section 94(5)—
(a) for the balance of that 6 month period, and
(b) for the purposes referred to in that subsection.”.
Seanad amendment agreed to.
Seanad amendment No. 80:
Section 65: In page 55, between lines 5 and 6, to insert the following:
“Transitional provisions: retention of documentation and records
102.(1) Documentation maintained by the PIU under paragraph (1) of Regulation 12 immediately prior to the date of coming into operation of section 71 shall, on and after that date, continue to be maintained by the PIU in accordance with section 95.
(2) Records that are lawfully kept by the PIU under paragraph (2) of Regulation 12 immediately prior to the date of coming into operation of section 71 shall, on and after that date, be kept for the balance of the period of 5 years referred to in paragraph (4)(b) of that Regulation in accordance with section 95, subject to the modification that, in the case of records continued to be kept pursuant to this section, a reference in section 95(4) to a period of 5 years shall be taken to be a reference to the balance of the period of 5 years referred to in paragraph (4)(b) of Regulation 12.”.
Seanad amendment agreed to.
Seanad amendment No. 81:
Section 69: In page 56, to delete lines 13 and 14 and substitute the following:
(a) the substitution of “An Garda Síochána,” for “An Garda Síochána and the Defence Forces in respect of their own members,”, and
(b) the insertion, after “the Companies Registration Office,”, of the following:
“the Courts Service,
the Defence Forces in respect of its own members,
the Director of Public Prosecutions,”.”.
Seanad amendment agreed to.
Amendment No. 82 is to be discussed with amendments Nos. 83 and 92. They are related and will be discussed together.
Seanad amendment No. 82:
Section 65: In page 56, between lines 25 and 26, to insert the following:
(a) in section 11, by the substitution of the following subsection for subsection (3):
“(3) A direction under subsection (1) or (2) may include such ancillary or consequential directions as the court concerned considers appropriate.”,
(b) in section 20(2)—
(i) in paragraph (b), by the substitution of “in such manner as may be specified in the rules,” for “in such manner as may be specified in the rules, and”, and
(ii) by the insertion of the following paragraph after paragraph (b):
“(ba) in relation to the transmission of a document referred to in paragraph (b) or (c) of subsection (1), require that the identity of the person receiving such a document be verified, including by the provision of the personal public service number (also within the said meaning) issued to the person, in such manner as may be specified in the rules, and”,
and
(c) in section 26, by the substitution of the following subsection for subsection (3):
“(3) A direction under subsection (1) or (2) may include such ancillary or consequential directions as the court concerned considers appropriate.”.”.
Amendment No. 82 makes a number of technical amendments to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020. It also repeals two redundant provisions of the 2020 Act.
Amendment No. 83
amends the Criminal Justice (Perjury and Related Offences) Act 2021. It is a purely consequential amendment to take account of the proposed insertion in this Bill of a provision for statements of truth in criminal and international co-operation proceedings.
Amendment No. 92 amends the long title consequential on amendments Nos. 82 and 83.
Seanad amendment agreed to.
Seanad amendment No. 83:
Section 72: In page 56, between lines 25 and 26, to insert the following:
(a) in section 1—
(i) in subsection (1), by the insertion of the following definitions:
“ ‘Act of 2026’ means the Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Act 2026;
‘section 67 statement of truth’ has the same meaning as it has in section 67 of the Act of 2026;”,
and
(ii) in subsection (2), by the substitution of “Section 21(3) of the Act of 2020 and section 67(3) of the Act of 2026” for “Section 21(3) of the Act of 2020”,
(b) in section 2—
(i) in subsection (1)—
(I) in paragraph (b), by the deletion of “or”,
(II) in paragraph (c), by the substitution of “section 21 of the Act of 2020, or” for “section 21 of the Act of 2020”, and
(III) by the insertion of the following paragraph after paragraph (c):
“(d) in a section 67 statement of truth made in place of an affidavit in accordance with section 67 of the Act of 2026,”,
and
(ii) in subsection (2), by the substitution of “paragraph (a), (b), (c) or (d)” for “paragraph (a), (b) or (c)”,
and
(c) in section 6(1), by the insertion of the following paragraph after paragraph (b):
“(ba) a section 67 statement of truth made in place of a statutory declaration in accordance with section 67 of the Act of 2026;”.”.
Seanad amendment agreed to.
Seanad amendment No. 84:
Schedule: In page 62, after line 20, to insert the following:
“SCHEDULE 2
Passenger Name Record (PNR) data
1. PNR record locator
2. Date of reservation/issue of ticket
3. Date(s) of intended travel
4. Name(s)
5. Address and contact information (telephone number, email address
6. All forms of payment information, including billing address
7. Complete travel itinerary for specific PNR
8. Frequent flyer information
9. Travel agency/travel agent
10. Travel status of passenger, including confirmations, check in status, no-show or go-show information
11. Split/divided PNR information
12. General remarks (including all available information on unaccompanied minors under 18 years, such as name and gender of the minor, age, language(s) spoken, name and contact details of guardian on departure and relationship to the minor, name and contact details of guardian on arrival and relationship to the minor, departure and arrival agent
13. Ticketing field information, including ticket number, date of ticket, issuance and one-way tickets, automated ticket fare quote fields
14. Seat number and other seat information
15. Code share information
16. All baggage information
17. Number and other names of travellers on the PNR
18. Any advance passenger information (API) data collected (including the type, number, country of issuance and expiry date of any identity document, nationality, family name, given name, gender, date of birth, airline, flight number, departure date, arrival date, departure port, arrival port, departure time and arrival time)
19. All historical changes to the PNR data listed in numbers 1 to 18.”.
Seanad amendment agreed to.
Seanad amendment No. 85:
Schedule: In page 62, after line 20, to insert the following:
“SCHEDULE 3
Serious crime
1. General
An offence under—
sections 2(1), (2), (3), (4) and (6) of the Criminal Law (Jurisdiction) Act 1976 (No. 14 of 1976) to the extent that the offence in the Schedule of that Act related to the alleged offence is one listed in Schedule 3 of this Act
section 11 of the Criminal Justice (Terrorist Offences) Act 2005 (No. 2 of 2005) to the extent that the offence in Part 1 or Part 2 of Schedule 6 of that Act related to the alleged offence is one listed in Schedule 3 of this Act
section 71 of the Criminal Justice Act 2006 (No. 26 of 2006) to the extent that it relates to the alleged offence of conspiracy to commit an offence listed in Schedule 3 of this Act and the offence is one for which a person may be punished by imprisonment for a term of 3 years or more
2. Participation in a criminal organisation
An offence under—
section 21 or 21A of the Offences against the State Act 1939 (No. 13 of 1939)
section 6 of the Offences Against the State (Amendment) Act 1998 (No. 39 of 1998)
section 72 or 73 of the Criminal Justice Act 2006 (No. 26 of 2006)
3. Trafficking in human beings
An offence under—
section 9 of the Criminal Law (Sexual Offences) Act 1993 (No. 20 of 1993)
section 3 of the Child Trafficking and Pornography Act 1998 (No. 22 of 1998)
section 2, 4 or 5 of the Criminal Law (Human Trafficking) Act 2008 (No. 8 of 2008)
section 5 of the Criminal Justice (Public Order) Act 2011 (No. 5 of 2011)
section 38 of the Domestic Violence Act 2018 (No. 6 of 2018)
section 6, 7, 8 or 14 (other than subsection (8)(c) of that section) of the Criminal Justice (Smuggling of Persons) Act 2021 (No. 42 of 2021)
4. Sexual exploitation of children and child pornography
An offence under—
section 6 of the Criminal Law (Sexual Offences) Act 1993 (No. 20 of 1993)
section 2, 3, 4 or 5 of the Sexual Offences (Jurisdiction) Act 1996 (No. 38 of 1996) in so far as it relates to any offence specified in the Schedule of that Act that carries a maximum term of imprisonment of at least 3 years
section 3, 4, 4A, 5, 5A or 6 of the Child Trafficking and Pornography Act 1998 (No. 22 of 1998)
section 249(1) of the Children Act 2001 (No. 24 of 2001)
section 176(2) of the Criminal Justice Act 2006 (No. 26 of 2006)
section 2, 3 or 3A of the Criminal Law (Sexual Offences) Act 2006 (No. 15 of 2006)
section 3, 4, 5, 6, 7, 8 or 42 of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017)
5. Illicit trafficking in narcotic drugs and psychotropic substances
An offence under—
section 3 (other than in the case of a first or second offence as provided for by section 27(1)), 15, 15A, 15B, 17, 19 or 21 (in so far as it relates to any offence specified in section 27 of that Act that carries a maximum term of imprisonment of at least 3 years) of the Misuse of Drugs Act 1977 (No. 12 of 1977)
section 34 of the Criminal Justice Act 1994 (No. 15 of 1994)
section 3(1), 3(2), 4, 5(1), 8(6) or 10(8) of the Criminal Justice (Psychoactive Substances) Act 2010 (No. 22 of 2010)
section 14 of the Customs Act 2015 (No. 18 of 2015)
6. Illicit trafficking in weapons, munitions and explosives
An offence under—
section 4, 5, 31, 40, 43 or 81 of the Explosives Act 1875 (38 & 39 Vict.) c. 17
section 2, 3, 4(1) or 5 of the Explosive Substances Act 1883 (46 & 47 Vict.) c. 3
section 2, 15, 16 or 17 of the Firearms Act 1925 (No. 17 of 1925)
section 27A or 27B of the Firearms Act 1964 (No. 1 of 1964)
section 4 of the Firearms (Proofing) Act 1968 (No. 20 of 1968)
section 7, 8 or 12 of the Firearms and Offensive Weapons Act 1990 (No. 12 of 1990)
section 3 of the Chemical Weapons Act 1997 (No. 28 of 1997)
section 6 or 9 of the Cluster Munitions and Anti-Personnel Mines Act 2008 (No. 20 of 2008)
section 14 of the Customs Act 2015 (No. 18 of 2015)
7. Corruption
An offence under—
section 5, 6, 7, 9 or 10 of the Criminal Justice (Corruption Offences) Act 2018 (No. 9 of 2018)
section 42A of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
8. Fraud, including that against the financial interests of the European Union
Conspiracy to defraud
An offence under—
section 119 of the Registration of Title Act 1964 (No. 16 of 1964)
section 2 of the Criminal Damage Act 1991 (No. 31 of 1991)
section 1078 of the Taxes Consolidation Act 1997 (No. 39 of 1997)
section 102 (other than subsections (1) and (2) of that section) of the Finance Act 1999 (No. 2 of 1999)
section 4, 6, 7, 9, 10, 11, 25, 26, 27, 28, 29, 42, 42A, 42B(3), 45 (in so far as it relates to an offence under section 42, 42A or 42B(3)) or 51 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
section 119 of the Finance Act 2001 (No. 7 of 2001)
section 6 of the Competition Act 2002 (No. 14 of 2002) being an offence involving an agreement, decision or concerted practice to which section 8(1) applies
subsection (3) or (4) of section 78 and section 78A of the Finance Act 2005 (No. 5 of 2005)
section 251, 252 (other than an offence under section 252(1)(d)), 253, 254, 255, 262 or 262A of the Social Welfare Consolidation Act 2005 (No. 26 of 2005)
section 17 or 19 of the Criminal Justice Act 2011 (No. 22 of 2011)
section 82, 87(5), 101, 102(3), 102(5), 286, 294, 324, 330, 387, 388, 389, 406, 507, 716, 717, 718, 719, 720(1), 721, 722, 767(4), 776, 876, 877, 878, 1148, 1200 or 1260 of the Companies Act 2014 (No. 38 of 2014)
section 14 of the Customs Act 2015 (No. 18 of 2015)
section 15A of the Assisted Decision-Making (Capacity) Act 2015 (No. 64 of 2015)
section 5 of the Markets in Financial Instruments Act 2018 (No. 25 of 2018)
section 26(1) of the Garda Síochána (Compensation) Act 2022 (No. 33 of 2022)
9. Laundering of the proceeds of crime and counterfeiting of currency, including the euro
An offence under—
section 33, 34, 35, 36, 37 or 38 (in so far as it relates to an offence under section 33, 34, 35, 36 or 37) of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
section 7, 8, 9, 10, 30A, 30B, 33A(3), 36A, 38, 38A, 39, 40C, 54, 57, 57A, 59, 108A or 109A of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010)
10. Computer-related crime / cybercrime
An offence under—
section 2, 3 or 4 of the Criminal Damage Act 1991 (No. 31 of 1991)
section 9 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
section 2, 3, 4, 5 or 6 of the Criminal Justice (Offences Relating to Information Systems) Act 2017 (No. 11 of 2017)
section 8 of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017)
11. Environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties
An offence under—
section 3 or 4 of the Local Government (Water Pollution) Act 1977 (No. 1 of 1977)
section 32 (other than an offence under subsection (6) where the offence consists of a contravention of regulations under subsection (4) of that section) of the Waste Management Act 1996 (No. 10 of 1996)
section 71B of the Animal Health and Welfare Act 2013 (No. 15 of 2013)
12. Facilitation of unauthorised entry and residence
An offence under—
section 6, 7, 8 or 14 (other than subsection (8)(c) of that section) of the Criminal Justice (Smuggling of Persons) Act 2021 (No. 42 of 2021)
13. Murder, grievous bodily injury
Murder
Manslaughter
An offence under—
section 4, in relation to conspiracy to murder, of the Offences against the Person Act 1861 (24 & 25 Vict.) c.100
section 53 of the Road Traffic Act 1961 (No. 24 of 1961) where the alleged contravention of subsection (1) causes death or serious bodily harm to another person
section 4(a) and (b) of the Criminal Justice Act 1990 (No. 16 of 1990)
section 3A, 4, 4A, 5, 6, 7(1), 8, 12, 13, 13A or 14 of the Non-Fatal Offences against the Person Act 1997 (No. 26 of 1997)
section 2 or 3 of the Criminal Justice (United Nations Convention Against Torture) Act 2000 (No. 11 of 2000)
section 2, 3 or 4 of the Criminal Justice (Female Genital Mutilation) Act 2012 (No. 11 of 2012)
14. Illicit trade in human organs and tissue
An offence under section 2 or 4 of the Criminal Law (Human Trafficking) Act 2008 (No. 8 of 2008)
15. Kidnapping, illegal restraint and hostage-taking
An offence under—
section 15, 16 or 17 of the Non-Fatal Offences against the Person Act 1997 (No. 26 of 1997)
section 9 of the Criminal Justice (Terrorist Offences) Act 2005 (No. 2 of 2005)
section 38 of the Domestic Violence Act 2018 (No. 6 of 2018)
16. Organised and armed robbery
An offence under—
section 26 of the Firearms Act 1964 (No. 1 of 1964)
section 4, 12, 13, 14, 15, 17 or 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
section 71A, 72 or 73 of the Criminal Justice Act 2006 (No. 26 of 2006)
17. Illicit trafficking in cultural goods, including antiques and works of art
An offence under section 4, 12, 13, 14, 15, 17 or 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
18. Counterfeiting and piracy of products
An offence under—
section 92 of the Trade Marks Act 1996 (No. 6 of 1996)
section 140 or 141 of the Copyright and Related Rights Act 2000 (No. 28 of 2000)
section 33, 34, 35, 36, 37 or 38 (in so far as it relates to an offence under section 33, 34, 35, 36 or 37) of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
19. Forgery of administrative documents and trafficking therein
An offence under section 25, 26, 27, 28 or 29 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
20. Illicit trafficking in hormonal substances and other growth promoters
An offence under—
Regulation 34 of the European Communities (Control of Animal Remedies and their Residues) Regulations 2009 (S. I. No. 183 of 2009)
21. Illicit trafficking in nuclear or radioactive materials
An offence under—
section 38 of the Radiological Protection Act 1991 (No. 9 of 1991)
section 2 of the Biological Weapons Act 2011 (No. 13 of 2011)
22. Rape
An offence under—
section 2, 3 or 4 of the Criminal Law (Rape) (Amendment) Act 1990 (No. 32 of 1990)
section 22 of the Sex Offenders Act 2001 (No. 18 of 2001)
section 21 or 22 of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017)
23. Crimes within the jurisdiction of the International Criminal Court
An offence under section 7, 8 or 11 of the International Criminal Court Act 2006 (No. 30 of 2006)
24. Unlawful seizure of aircraft/ships
An offence under—
section 11 of the Air Navigation and Transport Act 1973 (No. 29 of 1973)
section 3 of the Air Navigation and Transport Act 1975 (No. 9 of 1975)
section 2 of the Maritime Security Act 2004 (No. 29 of 2004)
25. Sabotage
An offence under—
section 1 of the Treason Act 1939 (No. 10 of 1939)
section 2 of the Criminal Damage Act 1991 (No. 31 of 1991)
section 166, 167 or 168 of the Electoral Reform Act 2022 (No. 30 of 2022)
section 24, 25(8), 26(2) or 29(6) of the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 (No. 4 of 2023)
26. Trafficking in stolen vehicles
An offence under—
section 10 of the Criminal Law (Jurisdiction) Act 1976 (No. 14 of 1976)
section 4, 14, 17 or 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
27. Industrial espionage
An offence under—
section 4, 9, or 15 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001)
Seanad amendment agreed to.
Seanad amendment No. 86:
Schedule: In page 62, after line 20, to insert the following:
“SCHEDULE 4
Section 78(1)
Competent Authorities
Minister for Justice, Home Affairs and Migration
An Garda Síochána
Office of the Revenue Commissioners
Minister for Social Protection
Permanent Defence Force”.
Seanad amendment agreed to.
Seanad amendment No. 87:
Title: In page 7, line 10, after “peace;” to insert the following:
“to amend the Wireless Telegraphy Act 1926 to enable members of An Garda Síochána to use certain apparatus for wireless telegraphy to interfere with unmanned aircraft systems for the purposes of carrying out the function of An Garda Síochána;”.
Seanad amendment agreed to.
Seanad amendment No. 88:
Title: In page 7, line 20, after “amend” to insert “the Misuse of Drugs Act 1984,”.
Seanad amendment agreed to.
Seanad amendment No. 89:
Title: In page 7, line 21, after “proceedings;” to insert the following:
Seanad amendment agreed to.
Seanad amendment No. 90:
Title: In page 8, line 4, after “that” to insert “and another”.
Seanad amendment agreed to.
Seanad amendment No. 91:
Title: In page 8, line 13, after “activity;” to insert the following:
“to make provision for the use of electronic means, and the making of statements of truth, in certain proceedings; to give further effect to Directive (EU) 2016/681 on the use of passenger name record (“PNR”) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime; to provide for the continuation of the Passenger Information Unit and for the processing, including retention, of passenger name record data by that Unit and by competent authorities; to provide for the continued designation of intra-EU flights, and the designation of all extra-EU flights, for the purpose of the prevention, detection, investigation and prosecution of terrorist offences and serious crimes; to provide for the designation of an Independent Authority and the conferral of certain functions on that Authority, including the conduct of reviews of the process for the designation of intra-EU flights and the approval of applications for the transfer, to other Member States and third countries, of passenger name record data and for those purposes to provide for the revocation of the European Union (Passenger Name Record Data) Regulations 2018;”.
Seanad amendment agreed to.
Seanad amendment No. 92:
Title: In page 8, line 18, after “2015,” to insert the following:
Seanad amendment agreed to.
Seanad amendments reported.
The agreement to the Seanad amendments is reported to the House and a message will be sent to Seanad Éireann acquainting it accordingly.
