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'There's no get out jail free card on this': What next for the Public Services Card?

The findings by the Data Protection Commissioner open up the possibility of legal action from PSC holders, solicitors say.

Minister Paschal Donohoe with the card back in 2016
Minister Paschal Donohoe with the card back in 2016
Image: Leah Farrell/Rollingnews.ie

WHAT NOW FOR the Public Services Card (PSC)?

The Data Protection Commissioner (DPC) has delivered its report on the PSC to the Department of Employment Affairs and Social Protection. From the latter’s point of view, it makes for grim reading.

Not only is there no legal basis, according to the DPC, for a PSC to be required for anything other than welfare payments, the department’s retention of the data of millions of people also isn’t lawful and that information must now be destroyed. 

It’s a massive turnaround for the card the government had hoped every adult in Ireland would have in the future. For starters, to satisfy the data watchdog, it has just 21 days to drop the PSC as a requirement for people seeking Irish citizenship, or for adults getting a passport for the first time. 

And further questions are now being raised about where it goes from here.

Let’s take a look how we got here and what happens now.

Misplaced optimism

For years, the government had trumpeted the PSC and frequently extolled its virtues.

Minister Paschal Donohoe was certainly a fan.

In a press release issued when he signed up for a card himself in 2016, it said that the “end goal” was covering the entire population of the country aged 18 and over.

“We think the Public Services Card is the best way of making sure that the billions of euro that we spend in providing public services are made available to the people that need them,” he told RTÉ’s Today with Sean O’Rourke when, in the summer of 2017, controversy was beginning to build.

He also went out to bat with an opinion piece in the Irish Times in August 2017. “The use of the PSC has already driven fraud out of the welfare system,” he wrote. “It it will lead to a more efficient government and a better user-experience when using government services.”

Taoiseach Leo Varadkar previously said it’s something “that is actually of real benefit to citizens”. He echoed these sentiments yesterday, saying that while the legality of the PSC will have to be examined, “it’s still a good project notwithstanding the difficulties that have arisen”. 

The minister who runs the department which administers the card, Regina Doherty, has also been a long-time proponent of it. 

Doherty famously said in a radio interview that the card is not compulsory but mandatory to claim social welfare.

90423388_90423388 Minister Regina Doherty Source: Sam Boal/Rollingnews.ie

In May, Doherty told the Dáil: “The PSC is designed and intended to replace other cards within the public sector, such as the free travel pass and the social services card of this Department, and to make it easy for providers of public services to verify the identity of customers.”

The findings from the Data Protection Commissioner systematically tear down both the way the government communicated to the public on the issue and the legality of the card itself.

And Commissioner Helen Dixon has said it’s in the public interest to now publish that report in full.

Transparency

On Friday, TheJournal.ie reported the findings from the Data Protection Commissioner’s landmark investigation into the legality of the Public Services Card. 

It had three main conclusions:

  • There’s no lawful basis for a person to be told they must have a Public Services Card to access a State service, except for social welfare and benefits.
  • The Department of Employment Affairs and Social Protection has no lawful basis for keeping documents provided, such as utility bills, for the 3.2 million cards issued so far. That data must now be destroyed.
  • And the department also hasn’t been sufficiently transparent in terms of the personal data it processes in the context of the PSC.

Speaking to TheJournal.ie, Commissioner Helen Dixon said a debate around the card and its implications is long overdue.

psc

The opposition is now pressing the government to publish the report, and roll back on requirements such as needing a PSC for a passport immediately.

Fianna Fáil’s Willie O’Dea said it was example of the government’s “arrogance” while Sinn Féin’s John Brady said Minister Doherty has “serious questions to answer”. 

O’Dea also wants the Public Accounts Committee to examine the €60 million spent on the PSC to date. 

Solicitor and data protection expert Simon McGarr told TheJournal.ie that the “correct place” for questions to now be asked is in that committee.

“The thing the money was spent on was illegal,” he said. “The illegality involved privacy and data protection rights of a very large proportion of the entire country.”

McGarr said that, under the EU’s GDPR law, there may be a potential legal avenue for citizens who have a PSC to take, given that the department illegally retained their data.

“There’s an explicit right to take action and seek compensation for material and non-material loss,” he said. McGarr cited two precedent cases in Ireland and the UK – Collins vs FBD, and Vidal-Hall vs Google – where individuals were awarded around €15,000 each in data breach cases.

The solicitor said he’d warned of this possibility at an Oireachtas committee hearing on the controversial card.

I said I considered this to be the largest financial risk a government department has voluntarily taken on. Any number multiplied by €3 million becomes an extremely large number.

Solicitor Fred Logue also told TheJournal.ie there could be some possibility for legal action to be taken, but stressed that was contingent on seeing the full report published and the legal analysis therein understood.

“You’re entitled to under the new data protection legislation,” he said. “It’s not really clear to what extent you can compensated for unlawful, indefinite retention. Compensation levels would be small, but there could be a high liability coming from that.”

Logue, however, believes that since the majority of those in possession of a Public Services Card have one to access welfare, it won’t have a huge affect on the cards in the short-term. 

McGarr added that until the report is seen in full, it won’t be clear the effects that these findings have on someone seeking social welfare who doesn’t want to get a Public Services Card.

He also said that it was unlikely the government could rush through new laws to cover their bases in terms of the illegalities found by the Data Protection Commissioner.

“There’s not a get out of jail free card they can play on this,” he said.

Publication?

In a statement, the Department of Employment Affairs and Social Protection said: “DEASP confirms that it has received a copy of the final investigation report from the Data Protection Commission in relation to the Public Services Card.  The department is considering the report and will respond in due course.”

McGarr and Logue both joined the Data Protection Commissioner in calling for the report to be published.

Logue said: “How can it be in the gift of a body in respect an adverse finding has been found [to prevent publishing the report]? How can they say the report can’t be published? It’s just not possible in a democracy.”

With the pressure now firmly on the government over the issue, it’s clear that this response will be required sooner rather than later.

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About the author:

Sean Murray

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