George Lawlor: Welcomes AI Bill but warns of constitutional risk

Go raibh maith agat, lasgaon cóile. Minister, we in the Labour Party welcome the intent of this Bill. We are far, as you know, from the first to say it, but the emergence of artificial intelligence could be the most significant societal and economic change we will see in our lifetimes. AI is already reshaping how decisions are made that affect people's lives. Decisions about credit, employment, healthcare, policing. It's reshaping our economy, our jobs market, the way we work and fundamentally how we live our lives. The pace of change is only set to pick up and sadly we see almost on a daily basis AI attacking jobs, particularly in the tech centre. Governments around the world need to recognise the scale of the change and the challenge here and respond. It's not enough to leave this transformative change in the hands of the tech joints whose sole priority will be the power and profits that they hope to reap from this transformation. Regulation is essential. Democratic guardrails are essential. Governments are facing a choice, not between AI or no AI, but between AI that serves the people or AI that serves the tech billionaires. The false dichotomy that some powerful interests would paint between regulation of AI on the one hand and innovation on the other needs to be rejected. AI has the potential to deliver so much good in healthcare, in how we deliver services, in productivity, but to unlock any of those benefits requires public trust and securing that public trust requires effective regulation. That's why the EU AI Act was such an important world first in beginning to put regulatory guardrails on how we use and develop artificial intelligence. It was pushed forward by socialists and democrats in Europe who recognised that in the face of a new industrial revolution we need to put the safety and wellbeing of citizens first. We need to keep humanity at the centre of AI policy. The EU AI Act isn't perfect. There are issues around companies effectively self-designating as high risk or otherwise and around how it fails to effectively safeguard copyright protections for creatives to name but two. There are gaps in its definition of high risk AI uses such as chatbots used by children. But it was nonetheless a hugely important step for Europe to take. The Bill aims to implement some of the requirements on Member States arising from that legislation as they relate to Ireland. That indeed is a welcome aim and the establishment of Uí Ffíg an drápta hÉireann is to be welcomed. But we need to make sure that this legislation is watertight. The regulation we put in place needs to be effective and workable. So it's in that light that while I support the ambition of the Bill, I want to raise a fundamental concern about one specific part of it. The Bill creates a system of very large financial penalties. Fines that in some cases could run to tens of millions of euro or a percentage of a company's global turnover. And it provides that these fines are to be determined not by a court but by a person called an adjudicator who is appointed under the Bill and who operates within the regulatory system. The role of the courts comes late. By the time the courts are involved, the critical decisions have already been made. In Ireland we have had systems of administrative fines in financial regulation, in competition law, in data protection for many, many years. This Bill pushes the model further than it has been pushed before. At some point the model breaks, not as a matter of legal technicality, but as a matter of basic constitutional principle. Our constitution is built on a separation of powers as you know. The judicial function is reserved to the courts by Article 34 of the constitution. It cannot be handed over to a civil servant, a regulator or an adjudicator, however well qualified and however independently they act. The reasons that the independence of the courts and the procedural protections of court proceedings are structural guarantees that protect the citizen from the power of the state. They are not formalities. With that background in mind, let me set out the four concerns we have. The first concern is the nature of the penalties themselves. Our courts recognise that not everything attracting a financial penalty is a criminal matter in the constitutional sense. A fine imposed by revenue for late filing of a tax return is not a criminal conviction. A penalty imposed by the central bank on a institutional institution for a regulatory breach is not the same as a criminal prosecution. The courts have drawn a distinction, in broad terms, between penalties that are genuinely regulatory in character, aimed at securing compliance with a scheme that the regulated party has voluntarily entered, and penalties that are, in substance, punitive, aimed at identifying, denouncing and punishing wrongdoing. These punishment cases require the full protection of a criminal trial before an independent court. The difficulty with this bill is that the fines it contemplates do not sit comfortably in the regulatory category. They can be absolutely enormous. The AI Act provides that for fines of up to €35m are 7% of a company's total worldwide annual turnover for the most serious of violations. 7% of global turnover for a large technology company could be billions of euro. No court in Ireland has ever had to decide whether a penalty of that magnitude can be described as regulatory rather than punitive. I am advised that when you are looking at a fine that could put a company out of business entirely, the word regulatory starts to lose its meaning, and the constitutional protections that attach to criminal proceedings start to apply. There is also a difficulty with the consent argument that sometimes justifies administrative penalties in other regulated sectors. For banking and financial services, there is at least an argument that companies entering a licensed sector applied for a licence and knew what they were signing up for. That argument simply does not work here. The AI Act applies to anyone who develops, deploys or uses certain types of AI system. There is no licence to apply for. The consent justification, which is some logic in the banking context, is not available here. I should also address directly the argument that because this Bill gives domestic effect to an EU regulation, our domestic constitutional concerns do not apply. That argument does not work in this case. The EU AI Act requires Ireland to have a penalty regime but it does not prescribe how that regime must be structured. The choice to use an adjudicator model with a court confirmation mechanism is an Irish choice made by the Irish government and it falls to be assessed against the Irish constitution. We cannot borrow the authority of EU law to excuse a domestic structural choice that EU law did not require us to make. The second concern goes deeper and it does not depend on the penalties being characterised as criminal. Even if one accepted that these are purely administrative rather than criminal penalties, the process of imposing them may still amount to what the constitution calls an administration of justice and the constitution permits only limited functions of a judicial nature to be exercised by non-judicial bodies. Our courts addressed this question directly in a case called Ray Hockey in 1971. That case arose from proceedings before a Dáil committee. The Supreme Court held that the label attached to a proceeding does not determine its character. What matters is the substance. Is a body making findings of fact about a named individual with legal consequences adverse to that individual? If so, the proceeding has the character of an administration of justice. Then the constitutional rules that govern the administration of justice, regardless of whether the body is called a court, a committee, a tribunal or, I would add, an adjudicator. Applied to this bill, the argument is straightforward. An adjudicator under Part 6 makes finding of fact did this company breach the AI Act and on the basis of those findings imposes financial consequences of enormous severity on a named legal person. That is, in substance, an administration of justice. The adjudicator is not merely advising, not merely investigating, not merely recommending. The adjudicator is determining. And I am advised that a body that determines justiciable controversies with serious consequences for individual rights is administering justice, whatever it is called. And again, by looking to the size of the available penalties, it is very hard to see how this could be classed as a limited exercise of a judicial function. The third concern arises directly from what the Supreme Court said in Ray Hathi about the mechanism used in that case to involve the courts. The Dáil committee in that case could certify a person for contempt to the High Court, which then had jurisdiction to punish. The argument was made that this saved the constitutional position. The committee investigated and certified that the court punished. So the judicial function was exercised by the court after all. The Supreme Court, however, rejected that argument. It said that what was being sent to the High Court was not a case to be tried. The trial, such as it was, had already taken place. What was being sent was effectively a person to be sentenced and a sentencing hearing before a court that had not itself tried the matter is not an administration of justice. The court was being used as a rubber stamp, not as a decision maker. Now compare that with the confirmation mechanism in this bill. Under sections 110 to 114, when a fine is imposed by an adjudicator is not appealed, the market surveillance authority must apply to the High Court to confirm it. The High Court must confirm unless, quoting from the bill, there is a fundamental and manifest error of law or the fine is clearly excessive or disproportionate. The evidence available to the High Court is limited to what was before the adjudicator and the adjudicator's findings are binding. The High Court does not rehear the case. It does not make its own findings of fact. It reviews on the deferential standard a determination already made by someone else. The parallel with Rae Haughey is exact. The adjudicator tries and the High Court merely confirms. The findings of fact are not revisited. The evidence is not re-examined. That is a sentencing hearing, not a trial. I am also advised that it is open to precisely the same constitutional objective that the Supreme Court held in Rae Haughey. The Court has been given a jurisdiction to endorse a determination made elsewhere, not a jurisdiction to determine anything itself. And if the process before the adjudicator is constitutionally infirm for that reason, nothing the High Court does at the confirmation stage can cure it. A flawed process does not become constitutionally valid because a court subsequently endorses it. The fourth and final concern is that constitutionally it is for the Court and the Court alone to make findings of fact in proceedings with serious consequences. A statute that requires a Court to accept as established a fact found by someone who was not a judge in proceedings that were not a trial is removing the fact-finding function from the Court. And that, the Supreme Court said, is unconstitutional. I am advised that the confirmation mechanism in this Bill is open to precisely this objection. The High Court at the confirmation stage is bound to accept the adjudicator's finding of fact. It cannot go behind them. It cannot hear fresh evidence that contradicts them. It must treat those findings as established and proceed to confirm the fine on that basis, unless the error is fundamental and manifest. The facts have been found elsewhere by a non-judicial body and the Court is required to accept them. The High Court cannot be given a jurisdiction that presupposes the facts have already been found. Taken together, these four concerns point in the same direction. The confirmation mechanism is not a genuine exercise of the judicial function. It is a review of a determination made elsewhere on a deferential standard, with a closed evidential record in respect of the findings of fact that the Court is not permitted to revisit. That is not what the Constitution means by the administration of justice. And I am also advised that a Court exercising that kind of jurisdiction is not curing whatever constitutional deficiency existed in the adjudication process. It is merely adding a judicial gloss to a process that remains, in substance, non-judicial. I want to invite the Minister in her response today to engage with the constitutional question directly. These are not peripheral concerns. They go to the central mechanism by which this Bill proposes to enforce the AI Act in Ireland. I appreciate the Bill has been carefully prepared, but careful preparation and constitutional validity are not always the same thing. And on this particular point, I think the Bill as drafted is on genuinely uncertain ground. We absolutely need to get this right. AI, as we all know, is rapidly changing the world around us. Regulation is vital to ensure that ordinary people are protected and there are proper guardrails in place. That idea isn't in conflict with innovation or adoption. It is essential to it. Europe has led the way globally on this. When we are now looking to implement those regulatory guardrails in our own state, we need to be certain that we are on firm ground. It is too important to get wrong. Minister, as I said at the outset, we in Labour welcome the intent of the Bill, but we simply need to get it absolutely watertight and right. It is far too important that we don't. I look forward to your own response and I commend the principle of the Bill to this House. Thank you.