Alice-Mary Higgins
National University of Ireland · Independent · Ireland
“We are signing up to be customers of liquefied natural gas - potentially fracked gas, potentially coming from a country that is busily fighting against climate action and trying to fast-track our route to destruction. We will be doing that every year in the budget and every day in the terminal.”
“We are not getting solid measures on those safeguards. The other safeguards we have, which are our planning laws and climate laws, are being either fast-tracked or suspended. We are suspending the existing safeguards and are not putting hard safeguards into this Bill, and we are being asked to go on faith.”
“Nonetheless, I have some practical questions. We need a little more on what the emergency is because it is not sufficient to say we will deal with it then. The emergency is the ground on which the Minister of State is asking for the normal planning process and the climate Act to be suspended. We need to know what the emergency is.”
“It should happen only after all relevant market-based measures have been implemented. Those market measures should include the demand-reduction strategies that are eligible under N-1, including demand reduction by large energy users, and should have been implemented, exhausted and proven insufficient.”
“Sure there is detail in it but the key issue is that what he is asking of the Oireachtas, which is to agree to it being built, is on the argument of there being an emergency. It should be very clear what the emergency is. I mentioned previously that the committee said our N-1 obligations could be met through demand management.”
“It comes from real places with real communities that are immediately and terribly impacted by fracking, as well as having an impact on the atmosphere that surrounds our beautiful planet, which we are destroying. As the Minister of State said, it impacts not just on business but on the liveability of large portions of this planet.”
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“It simply refers to "such class or classes of assistance as may be agreed". There are two Ministers who can say that the Army can be used for whatever classes of assistance they decide they want to use it for and that this will be subject to "such conditions as he or she may specify". The Minister for Defence may set out some conditions, but we will not know what they are. We will not even know what kind of conditions they are. I am sure we can come up with historical and projected future examples where there may be circumstances where the Army may be needed to support the civil power. Sinn Féin, which opposes the Bill completely, is not against that idea but would like it to teased out properly by the defence and justice committees.”
“The idea of saying that it is preposterous that the Dáil or Seanad would be involved is not true. In a time-bound situation, we can look to the kind of measures used in certain European legislation. It could be the case that in order for an exercise to continue beyond 48 hours or for there to be a time-limited action, that would be subject to review and approval for continuation by the Oireachtas. Many nuances can be put on that. The amendment is an attempt to have a structure of accountability regarding what is not currently even the subject of a discussion at Cabinet; it is the subject of a discussion between the Ministers for justice and Defence. The Bill does not categorise circumstances where this would be the only approach or where other measures might be looked.”
“What we are being asked to agree with here is a very wide categorisation of aid to the civil power that does not refer to extreme circumstances, provide caveats in service of democracy or state that we know only trucks will be sent. The Bill does not state any of those things. It simply states that the Minister for Defence, when asked to do so by the Minister for justice, can allow the deployment of the Defence Forces. In democracies internationally, there are always very careful safeguards in place between civilian authority and the use of military power. That is because, for many centuries, military power was predominant. There is a reason why, normally, there are extra safeguards. The Minister may not like the safeguard we have suggested in respect of a very simple matter. If he wanted to introduce a time limit, he could do so.”
“I will be brief. In the examples the former Minister described, the Army was deployed. This Bill did not exist, and the Army was deployed. We have had discussions about missing persons and other incidents. Let us have legislation on a statutory basis to address such incidents, including kidnapping and so forth. However, the Bill a very wide rather than a nuanced instrument in the context of such incidents. All of the examples mentioned were instances where the Army had already been deployed. There are circumstances where other mechanisms have been found to ensure the Army's deployment. There are many circumstances where that happens.”
“I think that as a minimum, there should at least be an opportunity for both Houses of the Oireachtas to have an input into that decision. That would be appropriate to the seriousness of such a decision.”
“This is obviously not declaring martial law; it is simply deploying the armed forces for particular instances but there are serious concerns attached that have not been properly scrutinised and that should be examined. Our amendment is actually very minimal compared to amendments Nos. 11 and 13, which I would also support. We simply say that as a basic bar, when this is happening the seriousness of it should be recognised by a requirement for a resolution passed by both Houses of the Oireachtas. Our amendment is perhaps too mild in this regard and in this context, given the potential seriousness of what happens when you place armed members of the Defence Forces on public streets in situations of civil unrest. Let us think about how that looks and feels.”
“Anybody who has served with the Organization for Security and Co-operation in Europe, OSCE, or worked on any of the other pieces sees that there is always a delicate balance internationally between armed forces and the civilian power. When you blur that line, you are creating a vulnerability in regard to the sense of democratic accountability within the state. We have seen in Korea a huge reaction against something that was obviously far more, but it was an attempt to bring martial power to bear. There was an extremely strong reaction from the public in Korea to those attempts by the political or civil powers to bring martial law to bear.”
“That is a really serious thing to do. At a minimum, that is why I would support amendment No. 11 from the Sinn Féin Senators. If the Minister is bringing this proposal forward, it is one that merits scrutiny not just by the justice committee but also by the defence committee. It should have the opportunity for pre-legislative scrutiny on the proposal for a very different kind of use of our armed forces, including the implications for the armed forces and their relationships with society as well. I would also support the idea that in each instance where this is deployed, we should be having a review and reporting in relation to it. Again, I hope it would be rare, but wherever it is occurring, it should be studied as part of very significant scrutiny. I say this in the context of looking internationally. We all know this.”
“When we talk about deployment of members of the armed forces, subsection (3) of the new section the Minister is going to introduce proposes that the members of the Defence Forces who are "deployed in aid of the civil power may use such force as is reasonable, proportionate and necessary". The force available to a member of the armed forces is considerably different. Even with the necessity and proportionality attachment, you are still talking about a level of potential force applied within situations that is far different from the level of potential force that is going to be applied within civil policing. You are talking about a significant change in circumstances when you have an issue of civil unrest and you are bringing in military-style responses with the military checks and balances rather than the civil checks and balances.”
“We are proposing amendment No. 12 in relation to this but I also want to indicate that amendments Nos. 11 and 13 have merit also. This is particularly the case as they would be added as a very serious component of the legislation before us, which was not subject to pre-legislative scrutiny and did not have the same examination. It is a very significant proposal that would allow for the armed forces - not just the armed force because, when you look to the Bill, it is clear that it refers to the armed forces with everything that brings - to be applied in civil situations. In situations where you have issues within civil society and the civil space, we will now be looking to the addition of the armed forces.”
“To clarify, these are additional Committee Stage amendments that are being added after the piece. We have not had sight of them before now. Can I confirm that we will have Report Stage of this legislation at a later date and that there will be no guillotine applied in respect of the Report Stage debate? Of course, we have not had the opportunity to look at and respond to these amendments, which we are only hearing about now.”
“I reiterate that the bar as set out in this Bill is too low, does not provide adequate safeguards and falls very short of what is envisaged in the AI Act. The Minister may speculate about how I would have liked that to be and say that I am giving out. Of course, I have strong opinions about the AI Act and about the omnibus that will seek to dilute that Act during Ireland's EU Presidency. I have strong views on these things, but I also recognise that a process is at play. I am concerned that said process is being somewhat disregarded in the context of this domestic legislation, which seems to plough its own furrow.”
“The AI Act refers to authorisation being requested within 48 hours. That would be satisfactory. I would be very happy with a different version of my amendment which did that in the case of missing persons and identifying those kinds of things. It is not simply the same to say that we are fighting crime and that crime is serious. We do not live in a world where it is only Batman and his sidekick involved, and if they both think it is worth doing, they can go ahead and do it. That is what the Bill sets out. We need to have safeguards. We have them in here because of the risks involved, including in the context of abuse, which the Minister rejected, as he did some of the safeguards around penalties put forward previously in relation to abuse. The Minister and I disagree on this.”
“The bar as he has it right now is extraordinarily low and highly at odds with what is envisaged under the use of - I will say it because this is the last time I will get an opportunity to do so - high-risk AI systems that are categorised as such. Very few areas of AI usage are categorised as high risk. We are talking about high-risk tools being used on the say-so of any two gardaí. The Minister rejected the idea of the courts. Previously, he rejected the idea of senior officers. He has not proposed any other mechanism regarding how sign-off will be achieved. The Minister used examples. We all want to see these examples. That is why I referenced the idea of doing it post facto . The latter is something I would be open to. It is what is in the AI Act in the context of biometric identification.”
“Nonetheless, there is a property or an individual, either way. What the Minister is talking about here refers to the searching and the mechanisms. This relates to that definition. It is disingenuous to say this Bill has nothing to do with biometric identification, which is coming later, because he put the definition of biometric identification into this Bill. If the Minister claims it has no relevance to what is in the Bill, why insert a definition that is at odds with what is happening elsewhere and that includes names? If the Minister does not like the Circuit Court idea, why reject the concept of having sign-off from a senior garda? He may think the bar I am suggesting is too high.”
“Are all gardaí in Ireland going to become experts in the appropriate uses of all AI technology? The Minister is not talking about designated gardaí or designated decision-making or a safety net within An Garda Síochána against which these decisions should be checked. It is literally one garda and any other garda. The Minister does not like the requirement around the Circuit Court, but in adversarial cases people look for search warrants all the time and get them quickly. They look for search warrants and arrest warrants and this is a similar mechanism.”
“There are search warrants and arrest warrants, there are safeguards. The Minister's picture of the police at work suggests that any delay, anything that gets in the way or any check and balance is intolerable. Let us have everybody into every house they wish to go into. This is what the Minister is describing. What the Minister has described is that a check and balance would be extraordinarily onerous, whether or not he likes this check and balance. He could say "I do not like the Circuit Court". Let us bear in mind that on Committee Stage he also rejected moderate requests that at least a senior officer would be reviewing it and signing off. At the moment, it requires two members of the Garda at any level. The Minister specifies trained individuals.”
“Why is the Minister introducing an extra hurdle for biometric identification to take place, and that it is only taking place when it is compared with a database of named individuals, given that names are not biometric? It will be his last opportunity to address that question if he wishes to.”
“On Committee Stage we talked about the second pair of eyes, and sadly there was strong rejection of amendments others had put forward to ensure the misuse would have particular offences attached to it. With absolute respect to the Minister, simply having the four eyes of two gardaí of any level on this and signing off on the use of a high-risk AI system without proper previous or after-the-fact systems in place comprised of the safeguards sought elsewhere is a serious concern. He might also answer the question about Article 71. Given that it will be his last opportunity to reply at this point, he may wish to address the issue of why he is only including databases of named individuals as biometric identification, when the AI Act is clear that it is biometric information.”
“It should ensure, "that no decision that produces an adverse legal effect on a person may be taken by the law enforcement authorities based solely on the output of such post-remote biometric identification systems". Article 26.8 also suggests that public authorities using high-risk AI systems will comply with registration obligations under Article 49 and only use systems that are registered within an EU database. Perhaps the Minister will clarify if the systems the Garda will be using will be registered on the database referenced in Article 71 of the EU AI Act. Or does the novel term "biometric analysis" mean that we will not be registering under that either?”
“Article 26.10 of the AI Act goes on to state that, "If the authorisation requested pursuant to the first subparagraph is rejected, the use of the post-remote biometric identification system linked to that ... authorisation shall be stopped" and the personal data would then be deleted. There are other obligations in Articles 26 and 27 that are just not present in this Bill. It is again notable from the code of conduct that Article 26.10 states "Each use shall be limited to what is strictly necessary for the investigation of a specific criminal offence." It goes on to state that "In no case shall such high-risk AI system [again, these are categorised as high-risk AI systems] for post-remote biometric identification be used for law enforcement purposes in an untargeted way".”
“It does not require senior gardaí or higher authorities. It does not require, either before the fact or after the fact, appropriate judicial permissions to be given. It is simply a second garda. Considering that the AI Act calls for judicial approval normally before a biometric identification system is used, or post facto in certain circumstances, this is a wildly out-of-step approach being proposed here. Our amendment would ensure that the results of biometric analysis would not be used without the court approval in instances relating to the investigations of offence. It would allow for the expedited use of biometric analysis in the case of searches for missing persons. We identify, as the Minister has, that those are issues where time is of the essence. It suggests there may be differing procedural protocols with regard to those uses.”
“without undue delay and no later than 48 hours, by a judicial authority or an administrative authority whose decision is binding and subject to judicial review, for the use of that system. This is an example of the nuance in the actual AI Act. If there are times when you have to engage in biometric identification at short notice, you have to move forward in identification of a person where there is clear risk but you make sure that within 48 hours, you get appropriate judicial approval. It recognises the urgency and the accountability. That is the balancing act and that is the piece missing from this legislation. The system outlined in the Bill allows for the results of biometric analysis to be used subject simply to approval from a second garda. If you have a garda and then you have any other garda, you are ready to go.”
“The Minister stated on Committee Stage that we had opted into the policing sections of the AI Act. However, it is difficult to see how that is going to work given legislation before us because the safeguards in the AI Act are detailed and extensive. Our amendments have consistently sought to better align this Bill with the protections and practices in the AI Act. Again, if we opt in to Article 26.10 we should be mindful of what that contains. It states: In the framework of an investigation for the targeted search of a person ... convicted of ... a criminal offence, the deployer of a high-risk AI system for post-remote biometric identification shall request an authorisation ...”
“I move amendment No. 9: In page 7, lines 18 to 20, to delete all words from and including “a principal” in line 18 down to and including line 20 and substitute the following: “the principal purposes outlined in section 43C(2)(a) and (b) unless the use of such results has been approved by a decision of the Circuit Court.”.”
“I move amendment No. 8: In page 7, between lines 16 and 17, to insert the following: “(7A) Where biometric analysis is carried out in accordance with section 43C(2)(a), such use shall be subject to a data protection impact assessment.”.”
“I guess the code of conduct is a proxy for regulations here because the Minister is placing it before the Houses of the Oireachtas. That is a good step, and I welcome it. However, I am concerned as to whether it is the Garda Commissioner's code of conduct, the State's code of conduct or the Minister's code of conduct. What happens if that code of conduct proves to be poorly drafted and not appropriate for the facts, challenges or issues that are arising? What is the mechanism for the annual reporting required and suggested under Article 26.10 of the AI Act? What does it look like after the code of conduct gets voted through by the Oireachtas? What happens next in terms of a data impact assessment and data protection? Also, where does the accountability ultimately sit? Is it with the Garda Commissioner or with the Minister?”
“The AI Act's drafters envisage that deployers - those who are doing this work - would be submitting annual reports to the relevant national data protection authorities on their use of these identification systems. They are not saying to consult with them when you set out the code of conduct at the beginning. I worry that so much has been placed on the Garda Commissioner. Ministerial accountability is important and of ongoing relevance as well. We know in other situations that individually you cannot just make a general rule. You either have to apply your data protection assessment individually as came up on the information and tracing Bill, or you have to look at creating clear regulations that meet necessity and proportionality.”
“Why is he choosing to introduce an extra layer of requirement that it will only be biometric identification when it is compared with the persons who we not only have pictures of but have their names? That is a choice. It is a choice that is at odds with the EU AI Act. That is why I have concerns about how it is going to be applied and what its implications will be for the necessary international co-operation we might need in all of the instances outlined. Returning to amendments Nos. 7 and 8, it is good that there will be a code of conduct. The problem is the idea that a data protection impact assessment is done at the very beginning, it inspires or influences the writing of the code of conduct, there is engagement on that and then it is left.”
“The document goes on to clarify further and gives the example of the kinds of databases where material is being compared, such as pictures or video footage generated by CCTV or private devices, and where those are generated before the use of the systems. This language of a reference database containing named individuals is an extraordinary narrowing of what is meant to be a comparator of biometric information with a biometric database or databases. The EU drafters make the greatest of efforts to be clear that they wish to be technology neutral in this regard. The Minister is saying it is only going to apply to databases of named individuals. That is an extraordinary choice. Why has the Minister narrowed it to named individuals versus a comparison of biometric data with a database of other biometric data?”
“'remote biometric identification system’ ... should be defined functionally, as an AI system intended for the identification of natural persons [which sounds very like the particular persons mentioned in the Minister's definition] without their active involvement, typically at a distance, through the comparison of a person’s biometric data with the biometric data contained in a reference database, irrespectively of the particular technology, processes or types of biometric data used. Even if the Minister were to argue that names are somehow biometric data, which they are not, is he willing to say that these names with photographs contain biometric data, too? The point is, recital 17 explicitly stated that it should not be narrowed.”
“I thank the Minister. He again sought to clarify between biometric analysis and biometric identification. That was one question we had, but the actual question I have been asking repeatedly is why he is choosing to narrow the definition of biometric identification that he proposed in this legislation. When the Minister spoke, he compared biometric information with a biometric database. That is not what the legislation states. The legislation states it is of named individuals. The Minister is proposing that biometric identification will only be deemed to be happening when the biometric information is compared with a specific database that contains names. That is a radically different and narrower definition of biometric identification than what we have in the EU AI Act. I will read recital 17 of the Act again for clarity. It states: ...”
“Under the AI Act, Article 27 states that deployers "shall perform an assessment of the impact on fundamental rights that the use of such systems may produce". Can the Minister tell us definitely that there has been, or will be, an impact assessment regarding the use of these systems?”
“There is a clear requirement to ensure a line of communication between the deployers of high-risk AI systems, like those employed for biometric analysis or identification, and the data protection authorities. That is outlined by the expectation of an annual report. If the Minister does not want to accept our amendments, which look for specific data impact assessments, will he outline the processes by which he will be ensuring, in an ongoing way, that the use of biometric analysis by authorities is continually and regularly - at least annually as outlined in the AI Act – in compliance with GDPR, given the scenarios the Minister used and those the data protection board described as being in breach of the data protection Act are very similar?”
“The European Data Protection Board was asked whether facial recognition technology could be used to examine biometric data in public spaces for identification purposes and it found that such use would constitute a disproportionate interference in the data subject’s rights under Articles 7 and 8 of the Charter of Fundamental Rights of the EU. Article 26.10 of the AI Act, which we will be discussing further when we come to amendment No. 9, is quite clear in this regard. It outlines that, "Deployers shall submit annual reports to the relevant market surveillance and national data protection authorities on their use of post-remote biometric identification systems". Post-remote identification systems use material, such as pictures or video footage, generated by CCTV or private devices in respect of natural persons.”
“When we talk about AI and computer-enabled processing of footage, photographs, videos, CCTV footage and the use of body cameras, we are talking about facial recognition. That is the kind of software and technology being used. The data protection board was asked to provide guidelines on the use of facial recognition technology in the area of law enforcement. It was asked to specify how those guidelines outline specific scenarios, examining the remote processing of biometric data in public spaces for identification purposes. Let us use the same exact scenario where the window gets broken and someone gets on a bus. That person may be seen later at a railway station or on another piece of CCTV. Maybe someone takes a photograph, but is it the same person? Is it the same particular individual as is described under the Minister’s definition?”
“Those same issues the Minister mentioned about proportionality, necessity and all of the other safeguards of GDPR still apply. That is why I suggest in amendment No. 7 that where biometric analysis is carried out in accordance with section 43C(2), it should be subject to a data protection impact assessment. Amendment No. 8 would also make biometric analysis carried out in accordance with section 43C(2)(a) subject to a data protection impact assessment. We discussed this issue on Committee Stage, but the Minister did not have the opportunity to come back in. Perhaps he will now. The European Data Protection Board has issued guidelines on the use of facial recognition technology.”
“Frankly, the narrowing of the definition of biometric identification to say it only applies when it is compared with a database of named individuals, when that is not how it is understood in the EU context or by others, is a big red flag. I will continue to say it. We still have not had a rationale for it. I know there has been certain grace given to Ireland within the EU AI Act because of Northern Ireland. There is this idea that Ireland will have flexibility when it comes to certain measures. That flexibility has been somewhat misused in this legislation, however. One area where we do not have flexibility is GDPR. There are clear requirements under GDPR. Ireland does not have a special carve-out, opt-out or anything else when it comes to data protection.”
“I begin by noting that the Minister has sadly again declined to answer my repeated question as to why he is choosing to narrow the definition of biometric identification to only include situations where it is being compared with a database of named individuals when that is not what the EU AI Act defines it as or applies it to. If the Minister recalls my previous intervention, I was clear on the importance of international co-operation. That is why it is important we co-operate with regard to international definitions. We should expect Ireland to seek to be aligned with other countries that are also engaging in biometric identification in order for us to be able to work and co-operate with them. I have asked the Minister this again and again. It is quite an anomaly.”
“I move amendment No. 7: In page 7, between lines 16 and 17, to insert the following: “(7A) Where biometric analysis is carried out in accordance with section 43C(2), such use shall be subject to a data protection impact assessment.”.”
“I would also like to know how the Minister envisages co-operating when we have put our own definition of biometric analysis, and many other countries will probably have biometric identification. In that context, it is hard to see how the co-operation is to be effective. I would appreciate answers on these. It is important.”
“How is that going to affect a like-with-like comparison when we are working with others across Europe on this? Will the Minister have his biometric analysis material brought into comparison with the biometric identification? Will he be expecting them to narrow their definition of biometric identification to only include comparison with named databases? This is what I mean when I say it is quite serious if we are not taking on a common definition when, as the Minister has rightly pointed out, these are areas where co-operation is needed. I would like an answer as to why the Minister is choosing to narrow biometric identification to only situations where it is with a database of named individuals.”
“The Minister might clarify. While I am of course in favour of international co-operation on these important issues, I am concerned because the Minister did not answer my question. Other countries may use different definitions of biometric identification. For example, other countries could use the definition that is in the EU AI Act, and other countries do not have a bespoke biometric analysis definition. This is what I mean by being quite serious. We talked about a thing that is of high risk in terms of how it is done, but that is not about not doing it, it is about doing it properly. If we have made up our own definition of biometric analysis and other countries do not have that because they have biometric identification under the EU AI Act, how is that going to affect our co-operation?”
“I move amendment No. 3: In page 6, to delete lines 1 to 5 and substitute the following: “ ‘biometric identification’ means the automated recognition of physical, physiological, behavioural, or psychological human features for the purpose of establishing the identity of a natural person by comparing biometric data of that individual to biometric data of individuals stored in a database;”.”
“I would like clarity on why the Minister is choosing to narrow biometric identification to only where it is being compared with databases of named individuals in absolute difference of approach to anything in the AI Act. Why is that choice being made? We can continue to use different terms in terms of biometric analysis, but I would like an answer in terms of that. Will the Minister accept that where biometric analysis is being compared, the databases can include CCTV and footage from a Garda recording device, for example? That is what I would like to clarify, that is, it is not narrowed to solely that category and it is quite serious.”
“There is an even greater concern that this Bill seeks to narrow the scope and change the important definition of biometric identification set out in the EU AI Act, again, set out, because it is identified as a high-risk AI system. It is categorised as high risk. For a security conscious Minister and a Minister concerned with justice, when something is categorised as high risk, surely we should not be trying to narrow and dilute its application. When something is categorised as high risk, we should not accept it is high risk but only use the safety net in this one instance of it, if it is comparing with the database of named individuals, even though safety nets are recommended across the board for the kinds of activity comparing biometric with biometric.”
“However this is flipped and spun, what the Minister is describing there - the particular individual appearing in different footage - is exactly what is being described as the comparison between footage generated by private devices, pictures and footage, and the language generated and looked at in terms of a natural person. The EU drafters are very explicit that that is irrespective of the technology processes or types of biometric data used. It is a concern that the safeguards that should be attached to the kinds of activity proposed in relation to biometric analysis are not being attached because of the renaming of it as biometric analysis.”
“That is how it is described by the drafters of the EU AI Act and that is exactly what the Minister has described under his biometric analysis, which is, in respect of an unidentified individual, the automated recognition and categorising of physical, physiological or behavioural human features by processing different documents in respect of other instances of "the particular" unidentified individual. The Minister is saying that we have identified this particular individual and now we will go and identify them in other instances in other forms of databases and other forms of footage.”
“The Minister went back to the suggestion of us comparing the photograph with our Interpol most wanted list or whatever we might want to do, but that would be comparing biometric information with relevant other information, which may include biometric but also includes names. It is a particular category. What is described in recital 17 to the Act and the example given is not that. This is an example described by the drafters of the EU AI Act as to what post-remote biometric identification might look like. They describe pictures, such as the photograph the Minister just mentioned, or video footage generated by closed circuit television cameras or private devices like a phone, and comparing the biometric information in one with the biometric information in the other. That is biometric identification.”
“That is only a matter of if you know their name, but the key point is the Minister is comparing the "physical, physiological or behavioural human features" with the goal of, as the Minister said, ruling persons in or out. Therefore, this is around saying that you think this person whom you see on the bus and this person whom you see in this photograph is the same person. That is part of that process of biometric identification. You are not looking at a searching or a gathering of the pure databases. You are looking for where you seek to find physiological, physical or behavioural feature A matching up with the same feature in database B. There is another point that I made that the Minister did not respond to, I am afraid.”