Scrutiny by civil society on forthcoming legislation

Introduction

In the last months, civil society in Ireland has been active in following the legislative trail of a large amount of forthcoming legislation in several policy areas such as hate crimes, police oversight and safe access zones.

Association

Ireland to ratify OPCAT, policing bills under scrutiny

With the Inspection of Places of Detention Bill, Ireland is paving the way for the ratification of the Optional Protocol to the Convention against Torture (OPCAT). However, according to the Irish Council for Civil Liberties (ICCL), the Bill needs to be significantly amended to ensure it complies with the treaty, particularly in relation to the independence of the torture and ill-treatment preventive mechanisms that the bill will create. ICCL is particularly concerned about the role that the Minister of Justice will have in the governance and operations of the preventative mechanisms. It believes that the scope of the legislation also needs to be broadened to social and care settings in order to ensure that all locations and facilities where people are held involuntarily are subject to oversight.

The Irish Refugee Council (IRC) wrote to the Department of Children, Equality, Disability, Integration and Youth about the proposal, which gives the Health Information and Quality Authority (HIQA) the power to inspect direct provision centres where people seeking international protection are accommodated. According to the IRC, inspections should not be limited to permanent centres but should include emergency centres too as this is where the most difficult conditions occur.

Related to detention, ICCL is calling for amendments to the Garda Síochána (Powers) Bill to bring Irish legislation in line with the right to information in custody as enshrined in EU procedural law. In September 2022, the European Commission notified Ireland that it is breaching EU law due to the lack of sufficient guarantees on the right to information in custody.

While the Powers Bill seeks to codify police powers in legislation, ICCL has concerns that this Bill, together with the Recording Devices Bill, will expand the range of powers available to gardaí. In particular, the introduction of facial recognition technology (FRT) as a policing and law enforcement tool poses a risk of overly broad surveillance powers and has been proven to be discriminatory and unreliable. The European Union is also moving to ban the use of this technology. Four UN Special Rapporteurs have written to the Irish Minister of Justice in this regard to express their concerns on the Bill, including on the lack of pre-legislative scrutiny. In ICCL’s view, any plans for the use of FRT should be abandoned. The proposed broadening of the use of recording devices such as body cameras and CCTV is also worrying, especially in light of flawed data protection within the gardaí.

Another piece of legislation regarding law enforcement accountability has come under the scrutiny of civil society. The Policing Security and Community Safety Billestablishes a new Policing and Community Safety Authority, an Independent Examiner of national security legislation and a Garda Síochána Ombudsman. During the pre-legislative phase, ICCL made recommendations to strengthen Garda oversight bodies effectively, as well as to ensure that the new examiner of security legislation meets the best international standards in terms of real oversight.

Insufficient investment in human rights despite proposal to amend Charities Act

The Charities’ Act was introduced in 2009 to improve the regulation of the charities sector in Ireland, by ensuring better governance, transparency and accountability. However, human rights organisations have been excluded from this status due to lack of legal basis for their purpose. Recently, amendments to the Act have been proposed to include “the advancement of human rights” as a charitable purpose, which paves the way for human rights organisations to obtain the status of charities. While ICCL welcomed this advancement, they remain concerned about the continued limiting of political advocacy work of charities.

ICCL has also expressed disappointment that the government has chosen not to invest in areas that would help protect and guarantee human rights in its Budget 2023, such as allocating additional resources to coroners’ service for staffing and additional funding for the proposed expansion of the Inspectorate of Places of Detention. One particular budget proposal that has raised alarm at ICCL is the proposed allocation of €3 million for body cameras for police forces with no conclusive evidentiary base for their effectiveness and while the draft law that would provide for them has not yet been approved by the parliament.

Peaceful Assembly

Right to access abortion services reinforced

The ‘Bill on Termination of Pregnancy Safe Access Zone’ reached the joint committee stage on 19th October 2022. The Bill is seeking to protect the right to access early termination of pregnancy services safely with privacy and dignity, given that there are often anti-abortion groups staging protests outside clinics. To this end, the bill will establish exclusion zones, thus limiting protest rights in the vicinity of medical facilities. ICCL is recommending including in the Bill a national awareness programme to reduce and prevent harmful harassment occurring outside termination facilities without having to resort to criminal sanctions against protesters in the first instance. The organisation also explained that while it defends the right to protest, this right is not absolute and that restrictions should be necessary and proportionate.

“We consider that the introduction of safe access zones, when narrowly defined and in pursuit of the protection of the rights to privacy, safety, bodily integrity, including the right to mental and physical health, and the right to access healthcare without discrimination, can constitute a proportionate interference with the right to protest.”

Expression

‘LGBT Disregard’ to remove discriminatory convictions

The Minister of Justice opened a public consultation that will inform the development of a scheme to disregard historic convictions related to consensual sexual activity between men, as a part of the “LGBT Disregard” scheme.

The criminalisation of consensual sexual acts between men in Ireland came into effect prior to the foundation of the State and remained in place until its eventual decriminalisation in 1993. In 2018, the government announced plans to bring forward proposals for a scheme to enable the expungement (or disregard) of criminal records for qualifying offences, where the sexual acts involved would now be lawful. The public consultation seeks to engage affected persons and representative groups to get their views on some of the key questions related to the development of the disregard scheme.

Incitement to Violence or Hatred and Hate Offences Bill

The Incitement to Violence or Hatred and Hate Offences Bill was published on 28th October 2022. The new legislation will criminalise any intentional or reckless communication or behaviour that is likely to incite violence or hatred against a person or persons because they are associated with a protected characteristic. The penalty for this offence will be up to five years' imprisonment.

During pre-legislative scrutiny, ICCL expressed concern about the insufficient engagement with impacted communities so far, as well as insufficient scrutiny on the section of the legislation dealing with extreme hate speech. It said: “We fear now that not enough time will be allocated to properly analyse the bill, given its critical importance.” The issue of lack of sufficient time when adopting new legislation is recurring in Ireland (see previous update).

According to ICCL, amendments to the Bill are needed to protect freedom of expression, particularly by ensuring that any offence criminalising speech reaches sufficient threshold, in line with international human rights principles of freedom of expression. The defences provided for in the legislation currently also need to be clarified to avoid the risk of being misinterpreted and of acting as a shield to those who wish to cause harm but do so in the context of academic, political and the newly added reference to religious discourse.

Data of people cleared of criminal allegations unlawfully retained

On 19th October 2022, ICCL revealed that the police are unlawfully retaining files on people wrongly flagged as suspect sharers of child sexual abuse material (CSAM) after they were cleared of this suspicion. ICCL has asked the Data Protection Commission to examine the matter.

Big Tech companies use error-prone scanning technology to scan emails and messages for known Child Sexual Abuse Material. When this technology detects a ‘match’ between a known CSAM image and an image in an email or a message, the case is referred to the National Center for Missing and Exploited Children (NCMEC) in the US. In turn, NCMEC refers the cases on to law enforcement agencies around the world. However, this ‘matching’ technology can create false positives. The police have been receiving NCMEC referrals since 2010. ICCL has revealed that of the 4,192 referrals NCMEC sent to the police in 2020, 471 were false positives. These included innocent family pictures of children on a beach.

Despite clearing these 471 referrals in 2020 (and other false positives in other years) as not being CSAM, the police retain the personal data associated with these innocent cases instead of destroying that data.

In response to ICCL’s revelations, the police told media that one rationale for retaining this data is for "reference and intelligence material in respect of future investigations", which ICCL believes is deeply problematic for people’s rights to privacy, data protection and presumption of innocence.

GDPR enforcement lacking and Data Protection Commission reform

In July 2022, the Irish Government approved commencement of the process to appoint two additional Commissioners to support the Data Protection Commission (DPC), which is responsible for supervising big tech corporations.

In September 2022, the European Parliament LIBE Committee called on the Irish Government to launch an independent review of the Data Protection Commission as part of the monitoring of Ireland’s application of the GDPR.

ICCL has criticised the Government for failing to allocate budget for an independent review of the DPC.

Online Safety and Media Regulation Bill criticised

The Online Safety and Media Regulation Bill will, among other things, establish a new regulator, a multi-person Media Commission to which an Online Safety Commissioner will be appointed. The Media Commission will replace the Broadcasting Authority of Ireland and be responsible for overseeing updated regulations for broadcasting and video on-demand services and the new regulatory framework for online safety created by the Bill.

The Bill will also transpose the revised EU Audiovisual Media Services Directive into Irish law, including the regulation of video-sharing platform services as part of the regulatory framework for online safety.

ICCL is asking that the Bill is dropped altogether as it concentrates too many regulatory powers in one institution and introduces far-reaching criminal provisions that would disproportionately restrict free speech, including by criminalising certain types of speech and information that aren’t illegal in real life and make them illegal online.

RTÉ journalists assaulted

As reported by Mapping Media Freedom, several members of Ireland's national broadcaster RTÉ were verbally abused and physically assaulted by people protesting against the COVID-19 vaccine while working outside the Four Courts in Dublin's city centre on 16th September 2022. According to the report, one man shouted insults at a camera operator and attempted to knock down his equipment. "RTÉ is fake news", "It's not a vaccine it's a bio-weapon" and "RTÉ genocide" was heard from the crowd gathered outside the Four Courts, which then chanted "Fake news RTÉ".