Some forthcoming legislation on the administration of justice, cybercrime, education, intellectual property, and privacy

Government Buildings by night, via Wikipedia

Government Buildings,
Merrion Square, Dublin.
Image via wikipedia
Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer. It is also likely to cover incoming requests from overseas to access to data held in Ireland. It may also include preparatory work for the response to the investigations being carried out by retired Chief Justice John Murray and retired Supreme Court judge Nial Fennelly. However, at present, this is just speculation, so we shall have to wait and see what the Department has in mind.

As to the administration of justice, priority legislation to be published by the Department of Justice and Equality this session includes a Bill to make provision for periodic payment orders to replace lump sum damages, and a (hastily-promoted?) Bill to establish the long-awaited Judicial Council. Indeed, that Bill is expected to undergo pre-legislative scrutiny this session, as is a Bill to replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission – indeed, the cabinet agreed yesterday to bring forward the heads of such a Bill by November. All of these developments are very welcome – provided that the Appointments Bill permits legal academics to apply for appointment to be bench, especially at appellate level. It would not be difficult to draft the necessary legislative provisions, and there is no reason in principle not to do so.

As to cybercrime, first, the busy Department of Justice and Equality is promoting the Criminal Justice (Offences Relating to Information Systems) Bill 2016, to implement Directive 2013/40/EU on attacks against information systems. It is on the Dáil Order Paper, awaiting Second Stage. Second, in the ‘I’ll believe it when (if) I see it’ category is the long-promised and almost long-forgotten Cybercrime Bill to give effect to the Council of Europe Convention on Cybercrime 2001. Yes, you read that right, it’s a 2001 Convention. It is 15 years old, which is a lifetime online.

As to education, legislation envisaged at some stage from the Department of Education, but probably not in this session, includes the Higher Education (Reform) Bill and the longer-threatened Universities (Amendment) Bill (critiqued here, here, here, and here). And the Technological Universities Bill 2015 remains on the Dáil Order Paper, awaiting Committee stage.

As to intellectual property, pre-legislative scrutiny is expected shortly on the Knowledge Development Box (Certification of Inventions) Bill. Heads of a Bill to amend Article 29 of the Constitution to recognise the Agreement on a Unified Patent Court were approved on 23 July 2014, though, in the light of Brexit, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Jobs, Enterprise and Innovation to the Oireachtas. Finally, the Copyright and Related Rights (Amendment) (Miscellaneous Provisions) Bill has been “referred to committee” pre-legislative scrutiny. This is presumably the Joint Committee on Jobs, Enterprise and Innovation. However, the Bill is not in the pre-legislative scrutiny list for this session, so we probably won’t see it in committee before Christmas.

As to privacy, the most important piece of legislation mentioned in the Programme is the Data Protection Bill, to transpose the EU Directive 2016/680 and give full effect to the General Data Protection Regulation (Regulation 2016/679). Heads are expected before the end of 2016 (but I’m not holding my breath). A Data Sharing and Governance Bill will be published and sent for pre-legislative scrutiny, to mandate and facilitate lawful data-sharing and data-linking for all public bodies, and a Health Information and Patient Safety Bill go further in the context of health information. In both cases, the drafting will be tricky, not least because the Bills will have to be compliant with the decision of the Court of Justice of the European Union in Case C?201/14 Bara. The Criminal Records Information System Bill and the Passenger Name Record Bill implement EU obligations. However, in the case of the latter, since there is a challenge before the CJEU in respect of a related measure, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Justice and Equality to the Oireachtas.

Finally, it is heartening to see that work has commenced on a Bill to remove blasphemy from the Constitution, and interesting to see active proposals to establish an Electoral Commission and to amend the transfer of records in the National Archives from 30 years to 20 years.

Here are some highlights from the Programme:

Priority Legislation for Publication This Session

Title Purpose Pre-Legislative Scrutiny (PLS)

Department of Jobs, Enterprise and Innovation

Knowledge Development Box (Certification of Inventions) Bill To provide for a certification scheme in respect of intellectual property for small companies to enable those companies obtain a tax benefit under the Knowledge Development Box and to amend the Patents Act 1992 to reintroduce substantive examination for patent applications PLS expected shortly

Department of Justice and Equality

Civil Liability (Amendment) Bill To give much needed financial security to those who have been catastrophically injured and who require life long care and attention by empowering the courts to make periodic payment orders PLS took place in September 2015
Judicial Council Bill To promote excellence in the exercise by judges of their judicial functions and to provide effective remedies for complaints about judicial misconduct including lay participation in the investigation of complaints PLS expected in November 2016

Department of Public Expenditure and Reform

Data Sharing and Governance Bill To mandate greater data-sharing and data-linking in the public service, to provide a legal mechanism to facilitate lawful data-sharing and data-linking for all public bodies, and to define standards for data governance and security to be followed in any data sharing-or data-linking activities PLS expected this session


Bills that are expected to undergo PLS This Session

Title Purpose Pre-Legislative Scrutiny (PLS)

Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs

National Archives (Amendment) Bill To amend the transfer of records rule under the National Archives Acts from 30 years to 20 years November 2016

Department of Health

Health Information and Patient Safety Bill To provide a legislative framework for the better governance of health information and initiatives including data matching and health information resources for use in the health service and support for clinical audit and patient safety notifications. It will also provide for the extension of HIQA’s remit to private health service providers Referred to Committee for PLS

Department of Justice and Equality

Judicial Appointments Bill To replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission November 2016
Judicial Council Bill To promote excellence in the exercise by judges of their judicial functions and to provide effective remedies for complaints about judicial misconduct including lay participation in the investigation of complaints November 2016

Department of Public Expenditure and Reform

Data Sharing and Governance Bill To mandate greater data-sharing and data-linking in the public service, to provide a legal mechanism to facilitate lawful data-sharing and data-linking for all public bodies, and to define standards for data governance and security to be followed in any data sharing-or data-linking activities This Session


All Other Legislation

Title Purpose Status

Department of Education and Skills

Higher Education (Reform) Bill To modernise the legislative framework underpinning the governance and functions of the Higher Education Authority and the governance structures of the universities Heads are currently being drafted
Universities (Amendment) Bill To ensure compliance with government guidelines on remuneration, allowances, pensions and staffing numbers in the University sector Heads approved in October 2012. Drafting underway

Department of Housing, Planning, Community and Local Government

Electoral Commission Bill To provide for the establishment of an Electoral Commission Committee engaged in an extensive consultation in 2015 and reported to Minister

Department of Jobs, Enterprise and Innovation

Amendment of the Constitution (Unified Patent Court) Bill To amend Article 29 of the Constitution to recognise the International Agreement on a Unified Patent Court Heads approved on 23 July 2014
Copyright and Related Rights (Amendment) (Miscellaneous Provisions) Bill To adopt certain recommendations made by the Copyright Review Committee to modernise the Irish copyright and related
rights regime, and provide for other necessary changes identified across the range of intellectual property issues
Heads approved July 2016, referred to committee for PLS

Department of Justice and Equality

Amendment of the Constitution (Removal of Blasphemy) Bill To provide for a referendum on removing the crime of blasphemy from the Constitution Preliminary work has commenced
Criminal Records Information System Bill To implement 2 EU Council Decisions that provide for exchange of criminal records information between EU member states Replacement EU measures under negotiation
Cybercrime Bill To give effect to those provisions of the Council of Europe Convention on Cybercrime 2001 not already provided for in national law in order to enable ratification of the Convention Preparatory Work underway
Data Protection Bill To transpose the EU Directive 2016/680 and give full effect to the Regulation 2016/679 Heads expected end 2016
Interception of Postal Packets and Telecommun-ications Messages (Regulation) (Amendment) Bill To amend various pieces of legislation in respect of electronic communications Work is underway
Passenger Name Record Bill To give effect to the Passenger Name Record Directive which must be transposed into law by May 2018. The Directive is a counter terrorist measure which obliges air carriers to provide member states’ authorities with PNR data for flights entering or departing from the EU Heads have yet to be prepared
4 Comments

Add a Comment

Your email address will not be published. Required fields are marked *