38. (1) The processing of personal data shall be lawful to the extent that such processing is necessary and proportionate for—

(a) the performance of a function of a controller conferred by or under an enactment or by the Constitution, or

(b) the administration by or on behalf of a controller of any non-statutory scheme, programme or funds where the legal basis for such administration is a function of a controller conferred by or under an enactment or by the Constitution.

(2) Subject to subsection (3), the processing of personal data and disclosure of that data to a person for the purposes of preserving the Common Travel Area, or any part of that Area, shall be lawful where the controller is an Irish air carrier, an air carrier or a sea carrier.

(3) The Minister shall, following consultation with such other Minister of the Government as he or she considers appropriate and the Commission, make regulations for the purposes of subsection (2) specifying—

(a) the part of the Common Travel Area to which the regulations apply,

(b) the personal data that may be processed,

(c) the circumstances in which the personal data may be disclosed, including specifying the person to whom the data may be disclosed, and

(d) such other conditions (if any) as the Minister considers appropriate to impose on such processing.

(4) Subject to subsection (5), the processing of personal data which is necessary for the performance of a task carried out in the public interest by a controller or which is necessary in the exercise of official authority vested in a controller may be specified in regulations made—

(a) by the Minister following consultation with such other Minister of the Government as he or she considers appropriate, or

(b) by any other Minister of the Government following consultation with the Minister and such other Minister of the Government as he or she considers appropriate.

(5) The Minister or any other Minister of the Government shall consult with the Commission before making regulations under subsection (4).

(6) The Commission may, on being consulted under subsection (5), make observations in writing on any matter which is of significant concern to it in relation to the proposed regulations and, if the Minister or any other Minister of the Government proposes to proceed to make the regulations notwithstanding that concern, that Minister shall, before making the regulations, give a written explanation as to why he or she is so proceeding to—

(a) the Committee established jointly by Dáil Éireann and Seanad Éireann known as the Committee on Justice and Equality or any Committee established to replace that Committee, and

(b) any other Committee (within the meaning of section 19(1)) which that Minister considers appropriate having regard to the subject matter of the regulations.

(7) Regulations made under subsection (4) shall specify—

(a) the personal data that may be processed,

(b) the circumstances in which the personal data may be processed, including specifying the persons to whom the data may be disclosed, and

(c) such other conditions (if any) as the Minister or any other Minister of the Government, as the case may be, considers appropriate to impose on such processing.

(8) In this section—

“air carrier” means an undertaking established in the State that provides air services;

“air service” has the meaning it has in Regulation (EC) No. 1008/2008 of the European Parliament and of the Council of 24 September 2008⁷ on common rules for the operation of air services in the Community (Recast);

“Common Travel Area” means the State, the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man;

“Irish air carrier” means an undertaking with a valid operating licence, within the meaning of Regulation (EC) No. 1008/2008 of the European Parliament and of the Council of 24 September 2008⁸, granted by the Commission for Aviation Regulation;

“passenger” means a person carried by an air carrier on an aircraft, or as the case may be, a sea carrier in a passenger ship, other than a member of the crew of the aircraft or passenger ship concerned;

“passenger ship” means a sea-going ship that carries more than 12 passengers;

“sea carrier” means an undertaking established in the State that, for remuneration, carries passengers by sea in a passenger ship.