Niamh Smyth
Cavan-Monaghan · Fianna Fáil · Ireland
“I thank Senator Higgins for speaking to this amendment and Senator Stephenson for putting it forward. I fully agree on the importance of co-operation and co-ordination between competent authorities in the implementation and enforcement of the AI Act.”
“63 would reduce the current period of 14 working days to a period of no more than seven days. The purpose of section 49 is to balance regulatory intervention with fair procedures.”
“I am going to take time after this debate to look at the Instagram account the Deputy raised today to see for myself. I do not disbelieve the Deputy. It upsets me so much to see that is allowed. Where is the monitoring of it?”
“These are: prohibited practices under Article 5; serious incidents reported under Article 73; high-risk AI systems referred to in annexe III in accordance with Article 49(5); and any other AI-related incidents or notifications required to be reported under the regulation.”
“The Government will continue to benefit from the expertise of the office in the deployment and implementation of AI-related policy and regulation.”
“I know that when you go to public meetings like those in question, there are tough stories from parents and you may feel a little inadequate sometimes in being able to deal with these things as quickly as possible. I am glad the Deputies used their time here today to make the presentation and to campaign for the parents.”
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“I thank the Senator. It may be argued that the provision allows a regulator to disregard the work of an independent adjudicator and creates unnecessary additional steps to the enforcement process. The provision does not permit arbitrary disregard of an adjudicator's work. Rather, it recognises the adjudicator and the market surveillance authority perform distinct functions within the statutory scheme. The adjudicator independently determines the facts and makes the findings while the authority remains responsible for the ultimate enforcement decision. The Bill intentionally separates those functions and section 102 gives effect to that structure.”
“If subsection (4) were removed, the Bill would no longer specify what happens where an adjudicator finds no infringement or where the authority declines to adopt a positive finding. That would create uncertainty for both the authority and the person concerned and would leave a significant procedural gap within the adjudication process.”
“79, which proposes the deletion of section 102(4), I do not accept it. Section 102(4) provides the procedural consequences where the applicable market surveillance authority declines to adopt a finding under section 102(1)(b), or where the adjudicator finds that no infringement has occurred and that finding is adopted under section 102(2). In such circumstances, the authority is required to notify the adjudication subject and take no further action against the person in relation to the matter. This provision is an important element of legal certainty and fair procedures. It ensures that, where enforcement action is not being pursued, the person concerned receives formal notification of that fact and the matter is brought to a conclusion.”
“I consider that the provision reflects the fact that the adjudicator's role is to make findings and recommendations, while the final regulatory decision remains with the statutory authority charged with enforcement responsibility. Similar decision-making structures exist in a number of Irish regulatory bodies where investigative, adjudicative and enforcement functions are separated. The provision, therefore, forms part of the overall constitutional and administrative architecture of Part 6. The amendment would remove that safeguard and would effectively make the adoption of an adjudicator's findings mandatory in every case where an infringement is found, irrespective of the views of the responsible market surveillance authority. The Government does not consider that such an approach would be appropriate. As regards amendment No.”
“I oppose amendments Nos. 78 and 79. Section 102 establishes an important safeguard within the adjudication framework. While the adjudicator is responsible for independently determining the facts of the case and making findings under sections 99 and 100, the applicable market surveillance authority remains the statutory authority responsible for enforcement of the AI Act within the system. Accordingly, section 102(1)(b) permits the applicable market surveillance authority, in limited circumstances, to decline to adopt a finding that an infringement has occurred where it is not satisfied that a breach of the AI Act has been established.”
“In addition, Article 87 of the AI Act provides that Directive (EU) 2019/1937, the EU whistleblowing directive, applies to the reporting of infringements of the AI regulation and the protection of people who report them. I believe a bespoke AI-specific report on enhanced protections would not improve that. For that reason, I am not in a position to accept the amendment.”
“I thank Senator Conway very much. I appreciate the amendment. I recognise and share the Senator's underlying concern to ensure people who expose wrongdoing in AI systems are properly protected. I do not accept that this amendment is necessary to achieve that, though. Section 62 already applies the full Protected Disclosures Act 2014 framework, as strengthened by the 2022 Act, to the reporting of AI regulation infringements, in direct implementation of Article 87 of the regulation. That framework already offers broad personal scope, tiered reporting channels, a reverse burden of proof, interim relief, confidentiality and criminal sanctions for retaliation.”
“It would be the relevant market surveillance authority and it would depend on the AI system or the sector. Therefore, the individual market surveillance authorities would take the Senator's complaint. I will come back to her with further detail but on this occasion, I cannot accept the amendment.”
“The answer is "No". The Government supports the principle that individuals could appropriately be protected where AI systems are used in decision-making, however, rights relating to explanation, transparency and human oversight are already addressed through the AI Act and, where applicable, the GDPR. The proposed amendment would create a parallel national regime and uncertain interaction with existing EU laws rights and would extend beyond the approach adopted by the AI Act. For those reasons, the amendment cannot be accepted.”
“In addition, the Bill is primarily concerned with governance, supervision and enforcement of the AI Act. It is not intended to establish a parallel national framework of substantive individual rights beyond those provided for under the regulation itself. I consider that introducing additional rights of human intervention and review in this manner could create inconsistency between national law and a harmonised EU framework grammar.”
“I would be concerned that the amendment would create a separate national rights regime that differs from and potentially overlaps with the rights and obligations already established under directly applicable EU law. This could create legal uncertainty regarding the category of AI systems covered, the relationship between the proposed right and Article 86 of the AI Act, the relationship between the proposed right and existing GDPR protections and finally the scope of the term "essential public service provider", which is not defined in the Bill. The amendment would also apply to any automated decision-making system whereas the AI Act adopts a more targeted and carefully calibrated approach that focuses on specified categories of high-risk AI systems and decisions producing legal or similarly significant effects.”
“In particular, Article 86 of the AI Act provides a right for affected persons to obtain clear and meaningful explanations of decisions taken on the basis of the output of certain high-risk AI systems where those decisions produce legal effects or significant effects that are considered by the individual to adversely affect his or her health, safety or fundamental rights. Furthermore, the GDPR already contains protections in relation to certain forms of automated decision-making involving personal data, including safeguards relating to human involvement and the ability to contest decisions in circumstances falling within Article 22 of the GDPR. These protections continue to apply alongside the AI Act where relevant.”
“As part of the setting up of the office, the complaints procedure will be put in place and aligned with the code of practice for the governance of State bodies and the Ombudsman guidance on complaints handling, as well as relevant legislation. As with other the statutory bodies, if individuals are not satisfied with the management of their complaint, they can make a complaint to the Ombudsman. The objective underlying amendment No. 72 is already substantially addressed through an existing provision in EU law, including the AI Act and where personal data is involved, the general data protection regulation.”
“I recognise the objective underlying amendment No. 71, namely, to ensure that complaints concerning the office are assessed in an independent and impartial manner. I fully agree with the importance of maintaining public confidence in the integrity of the complaints process. However, I do not consider that this amendment is necessary. The proposed amendment would introduce a specific statutory requirement that in a particular category of cases, an assessment must be conducted by an independent person appointed by the board. This represents a departure from the established approach, which is to ensure independence at an institutional level rather than through the creation of bespoke procedure arrangements for individual cases.”
“I am satisfied that the existing framework already ensures that providers are required to proceed with conformity assessment procedures in accordance with their obligations under EU law. Accordingly, I do not consider the amendment necessary and do not propose to accept it.”
“Importantly, the regulation already provides that the completion of those conformity assessment procedures must be undertaken without undue delay, taking into account the exceptional circumstances justifying the derogation. Where an authorisation is granted under this section, the provider remains subject to all relevant obligations under the AI Act, including any requirements relating to conformity assessment and compliance. Introducing an additional requirement in the Bill that such procedures are completed without undue delay would not materially alter those obligations. The wording is also potentially open to interpretation and could create uncertainty as to whether a separate or additional legal standard is intended to apply beyond that already provided for under the AI Act.”
“Section 55 of the Bill gives effect to Article 46 of the EU AI Act which establishes a carefully calibrated mechanism by which, in limited and exceptional circumstances, a relevant market surveillance authority may authorise the placing on the market or putting into service specific high-risk systems in advance of completion of a conformity assessment. Article 46.1 makes clear that such derogations are only permitted in narrowly defined situations, including for reasons of public security, the protection of life and health, environmental protection or the protection of key industrial and infrastructural assets. It further provides that any such authorisation shall be time-limited and subject to appropriate conditions, including that necessary conformity assessment procedures are to be carried out.”
“I will respond in relation to amendments Nos. 68 and 69. The purpose of amendment No. 68 is to place an expressed statutory obligation on the provider to complete any outstanding conformity assessment procedures as quickly as possible following the granting of an authorisation. I fully agree with the objective that any necessary conformity assessment procedures should be completed as soon as practicable where an authorisation has been granted under this section. However, the provisions of the AI Act already establish detailed requirements regarding conformity assessment procedures and the obligations that apply to providers of AI systems.”
“The GDPR already contains protections in relation to certain forms of automated decision-making involving personal data, including safeguards related to human involvement and the ability to contest decisions in circumstances falling under Article 22 of the GDPR. These protections continue to apply alongside the AI Act where relevant.”
“It could be interpreted as imposing a new statutory duty on the market surveillance authorities beyond those contemplated by the regulation. I am aware that Article 86 was included in the AI Act specifically to strengthen transparency and accountability in relation to high-risk AI systems. It provides a direct right for affected persons and applies independently of the enforcement arrangements established by member states. The Bill does not remove or limit the right in any way. Similarly, the objective underlying amendment No. 72 is already substantially addressed by the existing framework of the general data protection regulation, GDPR.”
“Replicating Article 86 in domestic legislation could create uncertainty if the national texts were interpreted differently from the regulation or if future amendments to the regulation were not reflected in domestic provision. In addition, the amendment would replace an obligation on the relevant market surveillance authorities to ensure that a person can obtain such explanations. However, Article 86 places the underlying obligation on the deployer, not on the market surveillance authority. The deployer is the entity responsible for providing explanations to affected persons, while market surveillance authorities have a distinct supervisory and enforcement role under the AI Act. The amendment therefore risks blurring the allocation of responsibilities established by the AI Act.”
“The obligation falls on the deployer of the system and it is intended to provide meaningful transparency regarding the role played by AI in the decision-making process. Article 86 grants any affected person the right to obtain from a deployer clear and meaningful explanations on the role of a high-risk AI system in the decision-making process and maintain elements of the decision taken where the decision produces legal effects and similarly significant effects on that person. As the right arises directly under the AI Act, it is not necessary to recreate or restate that right in national legislation. The Government has generally sought to avoid unnecessary duplication of directly applicable provisions of EU law throughout the Bill.”
“I will respond to amendment Nos. 67 and 72. The rights set out in these amendments are already provided for directly by Article 86 of the AI Act. Article 86 is one of the principal individual rights created by the AI Act. It was introduced to address concerns that individuals may be significantly affected by decisions based on high-risk AI systems without understanding how those systems contribute to the outcome. The provision applies where a decision is taken on the basis of an output of a high-risk AI system listed in Annex III; the decision produces legal effects and similarly significant effects; or the person considers that the decision adversely affects their health, safety or their fundamental rights.”
“A new, one-off ministerial report on policy coherence, as proposed, alongside the well-developed provisions related to the offices accountability and functions in the Bill, which are already designed to support the coherent enforcement across the competent authorities, would not add any substantial value to what is already provided for in the Bill. This amendment is also rather vague and lacks legal clarity on the meaning of policy coherence, the Departments it would cover, the criteria the report would assess and the words that would count as compliance. On this occasion, I have to oppose the amendment.”
“In addition, section 43 establishes a co-operation forum specifically to enable co-operation, co-ordination and information exchange among the competent authorities in order that there is consistent implementation of the AI act in the State by the competent authorities. Many of the regulators are long-standing market surveillance authorities, MSAs, in their sector and are accustomed to working together on matters that need consideration and co-operation between the relevant authorities. The AI office unit is working with those regulators to leverage their experience and existing practice to inform an approach in the context of the regulation of AI.”
“I thank the Senator for her amendment. I recognise the objective behind the amendment but I cannot accept it. Under sections 38 and 40 of the Bill, the office is already required to prepare a strategy statement every three years setting out its key objectives as well as a review of its work, annual report and performance of its functions. Moreover, these sections are well developed and clearly specify who is consulted, the form and the manner in which the Minister may direct and what the statement or report may contain. The Bill also provides that both reports must be laid before Houses of the Oireachtas and published.”
“63 would reduce the current period of 14 working days to a period of no more than seven days. The purpose of section 49 is to balance regulatory intervention with fair procedures. The existing framework allows authorities to suspend, modify or terminate testing where concerns arise, while ensuring affected parties have an opportunity to make representations. The current 14-day period forms part of a coherent procedural framework and provides legal certainty for all parties involved. Replacing it with a shorter and less certain timeframe could reduce the opportunity for affected parties to respond, create uncertainty regarding implementation dates and be particularly challenging where complex, high-risk AI systems are involved. I consider that the 14-day period strikes an appropriate balance between responsiveness and procedural fairness.”
“I consider that the existing real-world safeguards and oversight mechanisms provide meaningful protection. Accordingly, I cannot accept amendment No. 60. Amendments Nos. 61, 62, 64 and 65 would introduce the concept of a proposal taking provisional effect immediately and then no longer coming into full effect. The existing provision sets out a clear statutory process and provides certainty as to when decisions take legal effect. Introducing concepts such as provisional effect and full effect risks creating uncertainty regarding the legal status of testing and the applicable safeguards at various stages of the process. The current framework already provides clarity, certainty and appropriate regulatory oversight. Accordingly, I cannot accept amendments Nos. 61, 62, 64 and 65. Amendment No.”
“Article 60 itself contains extensive safeguards, while Articles 61 and 62 provide additional protections relating to informed consent and participant protection. In addition, the AI Act contains formal review and elevation provisions at EU level. Under Article 112, the European Commission is required to assess the operation and effectiveness of the regulation and to report on its implementation. This provides an existing mechanism through which the functioning of the AI Act, including its real-world testing framework, can be reviewed and evaluated over time. The amendment also introduces the concept of ethical review without defining its scope, the standards that should be applied, who should conduct it or how it should interact with the existing regulatory framework.”
“That could create uncertainty regarding the basis upon which authorisations should be granted or refused, the scope of the authority's assessment, how such impacts can be measured and how those considerations relate to the conditions already set out in Article 60. For those reasons, I cannot accept amendment No. 59. Amendment No. 60 would require the Minister to undertake and publish an annual ethical review of the operation of section 48. Real-world testing should be undertaken responsibly and ethically. However, a separate statutory annual ethical review is not necessary. The ethical and fundamental rights considerations identified by the amendment are already integrated directly into the AI Act framework.”
“However, as I outlined earlier, section 48 gives effect to Article 60 of the AI Act, which establishes a harmonised framework for authorising real-world testing. The role of the market surveillance authority is to assess whether the conditions specified within Article 60 have been met. While the AI Act recognises environmental protection as a broader objective, Article 60 does not require separate assessments of climate and biodiversity impacts or compliance with the Paris Agreement when determining whether testing may proceed. This amendment, therefore, would introduce additional national authorisation criteria that do not form part of the harmonised EU framework.”
“Introducing an additional national statutory requirement risks creating overlap and uncertainty as to whether a different threshold is intended to apply in Ireland from that provided for in the AI Act. I am satisfied that the protection of fundamental rights, including the protection of vulnerable persons, is already fully embedded within Article 60 of the framework. Accordingly, I cannot accept amendments Nos. 57 and 58. Amendment No. 59 would require market surveillance authorities, when deciding whether to authorise real-world testing, to have regard to climate, environmental protection, biodiversity and obligations under the Paris Agreement. I fully recognise the importance of environmental protection, biodiversity and climate action.”
“Article 60 forms part of a wider framework of safeguards within the AI Act. In particular, the regulation contains extensive provisions relating to risk management, human oversight, informed consent, participant protection and fundamental rights. Real-world testing under Article 60 must operate within the broader regulatory framework. Accordingly, market surveillance authorities are not assessing real-world testing in a legal vacuum. Article 60 already contains detailed safeguards that must be applied in the context of the wider protections contained throughout the AI Act, including those related to participant protection and fundamental rights.”
“Decisions to authorise or refuse testing should continue to be determined by reference to the criteria specified in Article 60. Accordingly, I cannot accept amendment No. 56. Amendments Nos. 57 and 58 concern fundamental rights considerations. The amendments would require a market surveillance authority to have explicit regard to the impact of testing on fundamental rights and, in the case of amendment No. 58, the rights of vulnerable persons. I fully agree with the protection of fundamental rights as a central objective of the AI Act. However, these considerations are already embedded throughout that Act and specifically within the framework governing real-world testing. Article 60 requires testing to take place under a controlled and supervised framework, with appropriate safeguards in place.”
“Introducing additional national requirements risks creating uncertainty regarding the relationship between national law and the harmonised framework established by EU law. Accordingly, I cannot accept amendment No. 55. Amendment No. 56 would require an application for real-world testing to be refused when the applicant has not clearly established how Article 9 risk management systems will be implemented. Again, I fully recognise the importance of risk management. However, Article 60 already sets out the conditions that must be met before testing may be authorised, including safeguards relating to risk management, oversight and participant protection. This amendment would, in effect, create a new mandatory ground for refusal beyond those provided for in the AI Act.”
“Against that backdrop, I will address the individual amendments. Amendment No. 55 would require an applicant seeking authorisation for real-world testing to clearly establish how the risk management system referred to in Article 9 will be implemented. I fully agree that effective risk management is a critical element of the AI Act framework. However, Article 60 already establishes a detailed and harmonised set of conditions governing real-world testing of high-risk AI systems. Those conditions must be assessed by relevant market surveillance authorities before authorisation may be granted. The amendment would introduce an additional national authorisation criterion beyond those contained in Article 60. Authorisation decisions must continue to be assessed against the harmonised criteria set out in the AI Act itself.”
“Those conditions already require, among other things: a documented testing plan; appropriate risk management measures; human oversight arrangements; safeguards for health, safety and fundamental rights; compliance with applicable union law; regulatory supervision and oversight; record keeping and documentation requirements; and powers for authorities to suspend, modify or terminate testing where concerns arise. In addition, Articles 61 and 62 provide specific protections for natural persons participating in or affected by real world testing, including informed consent requirements and safeguards for participants. The AI Act therefore embeds risk management, participant protection and fundamental rights safeguards directly into the authorisation and operation of real world testing.”
“I thank both Senators for speaking to these amendments. I will cover amendments Nos. 55 to 65, inclusive, with the indulgence of the Acting Chairperson. Before addressing individual amendments, it may be helpful to briefly outline the framework that already applies in real world testing of high-risk AI systems. Under Article 60 of the AI Act, real world testing is not unrestricted. It is one of the most heavily regulated aspects of the AI Act. Testing may only take place where permission has been granted under the relevant market surveillance authority and where the detailed conditions set out in Article 60 are satisfied.”
“The Department has concluded that consultation and I am satisfied the personal data provisions in the Bill are well developed and in line with requirements set out under the GDPR.”
“Article 59 of the AI regulation, faithfully transposed by section 47, confines this process to a narrow, closed set of public interest purposes subject to isolation, no adverse decision, deletion and continuous monitoring conditions, with the Data Protection Commission statutorily embedded in oversight under section 47(2). The GDPR, including child-specific protections under Article 8 and Recital 38, and the enhanced domestic threshold in section 31 of the Data Protection Act 2018, continues to apply over and above all of that, undiminished. The Department is required to consult with the Data Protection Commission pursuant to Article 36(4) of the GDPR and section 84(12) of the Data Protection Act 2018 with respect to the personal data provisions in the Bill.”
“A sandbox participant processing any personal data must identify a lawful basis, satisfy data minimisation and purpose limitation, and conduct a data protection impact assessment, where required, and is directly answerable to the Data Protection Commission, as provided in section 47(2) of the Bill. The amendment, therefore, does not add a protection that is missing; it duplicates protections that already bind every controller in the State. While I share the underlying objective of ensuring children's data is never processed carelessly in an AI sandbox, I do not accept that the amendment is necessary to achieving that.”
“The GDPR provides that children merit specific protections because they may be less aware of the risks involved. That principle runs through the regulation. Where consent is the basis relied upon for an information society service, Article 8 of the GDPR requires parental consent below the relevant age threshold, which section 31 of the Data Protection Act 2018 sets at 16 in this jurisdiction. The Data Protection Commission's published guidance on children's data goes further, requiring controllers to treat the best interests of the child as a primary consideration, and takes the view that profiling or automated decision-making in respect of children will rarely be justifiable. None of this is disturbed by section 47.”
“Article 59 of the AI Act expands on the use of personal data in the sandbox framework. Section 47 of the Bill gives effect to Article 59, which permits personal data, lawfully collected for one purpose, to be further processed solely within an AI regulatory sandbox and for the purpose of developing, training and testing certain AI systems. Article 59 provides a robust safeguard in terms of processing sensitive personal data in the sandbox. Those conditions include, among others, that the AI system is being developed to safeguard a substantial public interest such as public health, safety or the environment, and that the processing of personal data would require consent from the data subject in certain circumstances. Article 59 does not disapply the general data protection regulation; it operates within it.”
“I thank the Senator for her comprehensive arguments on each of those amendments. As regards the use of personal data, including children's personal data, within the sandbox, I understand and support the underlying concerns motivating the amendment. Nobody in the House disputes that children's personal data warrants the highest standard of protection, including in the context of AI. Article 57 of the AI Act requires member states to establish an AI regulatory sandbox. The purpose of the sandbox is to promote AI innovation, support the development of compliant AI systems and facilitate regulatory learning across the AI ecosystem. Article 57 also mandates that the national competent authorities must involve national data protection authorities in the establishment and operation of AI regulatory sandboxes.”
“I am also conscious that aspects of the amendment overlap with co-operation obligations and institutional arrangements already provided for under the AI Act itself. Accordingly, I am satisfied that the existing provisions within the Bill provide an appropriate framework for co-operation and co-ordination and I do not propose to accept the amendment.”
“The amendment would establish a highly prescriptive statutory forum, including requirements relating to membership, meeting frequency, agenda items and dispute resolution processes between authorities. While these matters may be useful operational arrangements, I do not consider that they require specific provision within primary legislation. The Bill already provides the office with co-ordination and co-operation functions and enables it to support engagement between competent authorities and other relevant bodies. In practice, co-operation arrangements may need to evolve over time as the AI regulatory system develops and it is preferable the office has the flexibility to determine the most effective structures for achieving that objective.”
“I thank Senator Higgins for speaking to this amendment and Senator Stephenson for putting it forward. I fully agree on the importance of co-operation and co-ordination between competent authorities in the implementation and enforcement of the AI Act. Indeed, one of the central purposes of the office is to facilitate co-operation, co-ordination and information sharing among the various authorities with responsibilities under the AI regulatory framework. However, I do not consider it necessary or appropriate to prescribe in primary legislation the detailed structures or operational arrangements proposed in the amendment. The AI Act is a substantial and evolving regulatory framework and it is important that the office retains sufficient flexibility to develop co-operation mechanisms that respond to operational experiences and emerging needs.”
“I want to say one other thing. It is a correction. Maybe it was me; I am not sure. It relates to section 60(2)(c) rather than section 62(c). I may have said it wrong, or maybe the Senator did. I just wanted to clarify that.”
“I am happy to sit down with the Senator and my very smart, bright and intelligent officials here to see what more we can do to copperfasten and give her and the public absolute confidence. The Senator is absolutely right. Our 27 member states need to be able to look to Ireland and see that these companies have reached the benchmark for empowering people and are not infringing their fundamental rights. While I agree with the Senator and on this occasion I cannot accept her amendment, my door will always be open.”
“I thank the Senator. I feel, as I am sure everyone in the room feels, the Senator's passion about this. I am of the same mindset and I know we have a real opportunity here. Unfortunately, I cannot accept the amendment because I have a deadline. I know the Senator will say deadlines are not good enough but I am concerned about the prohibitive practices piece and how AI is impacting all of society. I am equally concerned that the fundamental rights of people trump everything here. While I cannot accept the amendment, I will give the Senator a commitment that, following this, even over the summer duration or into the autumn when we are coming back to this, my door is always open.”