‘Put Simply, There Is No Basis For The Blanket Issuance Of Cards To Citizens Looking To Access State Services’

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Ministers Paschal Donohoe and Regina Doherty; Public Services Card; Section 263, sub section 3 of the Social Welfare and Consolidation Act of 2005

Yesterday, Minister for Employment and Social Protection Regina Doherty went on RTÉ’s Morning Ireland to defend the Government’s position on the Public Services Card, despite findings about the card made by the Data Protection Commissioner Helen Dixon.

During the interview, Ms Doherty repeatedly said the Social Welfare and Consolidation Act of 2005 has allowed the Government to do what it has done in respect of the card and she said that that is the legal advice she’s received from the Attorney General’s Office – advice she will not publish

Ms Doherty  said:

“Where we [the Government and the DPC] have a difference here is in the interpretation of the Social Welfare and Consolidation Act of 2005. My legal advice is incredibly strong, that we have a clear and unambiguous legal basis to do exactly what we intended to do from 2005 and what successive governments have done since…”

She also said:

In the 2005 legislation in sub section 3 of that legislation, it very, very clearly sets out exactly what the anticipated use was for, what the legal right and the responsibility of the data controller is and that’s exactly what we’ve done and so we really believe that we have a very, very strong legal basis to do exactly what we have done…”

However.

This morning.

Ciannan Brennan, in The Irish Examiner, writes:

The minister referred to subsection three of that Act, and 23 words that the department and the DPC disagreed over.

Loose talk aside, there is only one section she could mean — subsection three of section 263 regarding a prospective Public Service Card.

Those words are: “A person shall produce his or her Public Service Card at the request of a specified body for the purposes of a transaction.”

That’s it. You’ll note that nowhere in that sentence are the words “mandatory” or “compulsory” to be found.

Put simply, there is no basis there for the blanket issuance of cards to citizens looking to access State services.”

Much more at stake than a little plastic card (Ciannan Brennan, The Irish Examiner)

Meanwhile…

Solicitor Simon McGarr has also tweeted his thoughts on the matter…

Yesterday: ‘It Would Be In The Circuit Court So It Probably Wouldn’t Be Very Expensive’

Rollingnews

35 thoughts on “‘Put Simply, There Is No Basis For The Blanket Issuance Of Cards To Citizens Looking To Access State Services’

    1. Robert

      I thought this, but contrast with McGarr’s opinion further down that it doesn’t really matter what the wording is if it conflicts with EU law … if you could circumvent EU leg by writing your own laws we wouldn’t have brexit .. or EU ..

      Perhaps this is interesting, as test-case to demonstrate the boundaries between local/EU law, because there is definitely a law of ambiguity here, and even so we see it flauted regularly in day to day business.

      Perhaps there’s an upside to all this, even if the conclusion is apparently foregone … to legal luminaries such as ourselves …

      1. Barry the Hatchet

        The relationship between national and EU law has been exceedingly well defined. In this instance, the GDPR prevails over anything in national legislation.

      2. class wario

        yeah, don’t disagree. probably a lot of other considerations to feed into this but extract from examiner article about there being no inclusion of ‘mandatory’ seemed a bit off.

    2. Man On Fire

      It’s about as legally sound as the much recently pomped “not exonerated” hogwash.

      In no legal brief has shall been introduced as to mean mandatory or compulsory.

  1. eoin

    Any sign of the 150-page report by the Data Protection Commissioner, the publication of which is statutorily being held up by the government and Regina in particular. When we have the full report, we can see the basis for the Commissioner, who is the decision making official in this year, for concluding the government is engaged in illegal mass surveillance of citizens.

        1. Cian

          I just know.

          I cant prove a negative. Why don’t you ask eoin for evidence – he made that original claim.

          But unless someone (cough eoin) can provide evidence that the minister must release the report I’ll keep believing it.

          1. V

            So it’s back to you E

            One of ye
            Confirm something

            And while ye”re sorting this one out
            Why don’t ye figure out who’s fault it is that the eFFers
            Who have insisted Brexit is the only reason for this C & S opposition deal haven’t had sight of the super secret No Deal Brexit document given to the Cabinet last Tuesday
            So super secret that they were not permitted retain a copy of it

            WTF is going on there lads
            WTF is ahead of us

    1. Cian

      AFAIK the current report is moot – it was drafted prior to GDPR and references the older Data Protection laws.

      The DPC will need draft a new report pertinent to GDPR, and issue a notice based on current law.

        1. Cian

          This bit:
          “the report delivered to the Department incorporating our findings also contains (non-binding) analysis capturing changes to the law as introduced by GDPR”

    1. Batty Brennan

      [2005 (SW&P) s26 & Sch 5]

      1. Each of the following shall be a specified body for the purposes of this Schedule and sections 262 to 270 :

      (1) a Minister of the Government,

      the Commission for Public Service Appointments,

      the Public Appointments Service,

      the Revenue Commissioners;

      (2) a local authority (for the purposes of the Local Government Act 2001 );

      (3) the Health Service Executive;

      (4) a body established by the Minister for Education and Science under section 54 of the Education Act 1998 ,

      An Foras Áiseanna Saothair,

      An Garda Síochána and the Defence Forces in respect of their own members,

      An Post,

      An tArd-Chláraitheoir,

      an tÚdáras un Ard-Oideachas,

      Coillte Teoranta,

      Enterprise Ireland,

      National Educational Welfare Board,

      the Central Applications Office,

      the Central Statistics Office,

      the Companies Registration Office,

      the General Medical Services (Payments) Board,

      the Legal Aid Board,

      the Mental Health Commission,

      the National Breast Screening Board,

      the National Cancer Registry Board,

      the Pensions Board,

      the Personal Injuries Assessment Board,

      the Private Residential Tenancies Board;

      (5) the following Voluntary Hospitals:

      Beaumont Hospital, Dublin,

      Cappagh National Orthopaedic Hospital, Dublin,

      Coombe Women’s Hospital, Dublin,

      Dublin Dental Hospital,

      Hume Street Hospital, Dublin,

      Incorporated Orthopaedic Hospital of Ireland, Clontarf, Dublin,

      Leopardstown Park Hospital,

      Mater Misericordiae University Hospital, Dublin,

      Mercy Hospital, Cork,

      National Maternity Hospital, Dublin,

      National Rehabilitation Hospital, Dun Laoghaire,

      Our Lady’s Hospice, Dublin,

      Our Lady’s Hospital for Sick Children, Crumlin, Dublin,

      Portiuncula Hospital, Ballinasloe, Co. Galway,

      Rotunda Hospital, Dublin,

      Royal Victoria Eye and Ear Hospital, Dublin,

      South Infirmary/Victoria Hospital, Cork,

      St. James’s Hospital, Dublin,

      St. John’s Hospital, Limerick,

      St. Luke’s Hospital, Dublin,

      St. Mary’s Hospital and Residential School, Baldoyle, Dublin,

      St. Michael’s Hospital, Dun Laoghaire,

      St. Vincent’s University Hospital, Elm Park, Dublin,

      St. Vincent’s Hospital, Fairview, Dublin,

      The Adelaide and Meath Hospital, Dublin incorporating the National Children’s Hospital,

      The Children’s Hospital, Temple Street, Dublin,

      The Royal Hospital, Donnybrook,

      University Dental School and Hospital, Cork.

      2. Each of the following shall be a specified body for the purposes of this Schedule and section 266 :

      a person who provides, organises or procures a programme of education or training,

      a recognised school or centre for education (within the meaning of section 2 of the Education Act 1998 ),

      a vocational education committee (within the meaning of section 7 of the Vocational Education Act 1930 ),

      a university to which the Universities Acts 1997 and 1999 apply,

      an educational institution to which the Regional Technical Colleges Acts 1992 to 2001 apply,

      the Dublin Institute of Technology,

      the Further Education and Training Awards Council,

      the Higher Education and Training Awards Council,

      the National Qualifications Authority of Ireland.

      3. The Minister may by regulations amend paragraph 1 or 2 by adding a specified body to, deleting a specified body from, or amending a reference to a specified body in, those paragraphs.

      1. V

        Some of those entities are also competing in the Private Sector market space
        ie An Post – (Bank, Direct marketing etc)
        Who not only have tax payer subvention they also the benefit of the PSC

        Would ya GTF

        others btw, because I know you like to climb into the cracks Cian
        How about the private wards and clinics in those Voluntary Hospitals – or some of those Third Levels selling Med as a Post Grad or to Full Fee paying students from outside the EU

        I most definitely have difficulty recognising the need for the Irish Pensions Board, Coillte and Enterprise Ireland to have this access

        Any chance my little enterprise could be added to the list

  2. Truth in the News

    Good Question…..but where is the legislative authority empowering the “specified
    bodies” to request production of the PSC to effect a “transaction” , has in fact the
    issuance of the card not being a data harvesting exercise by the State to pool
    all transactions and dealings by the card holder on a data base, and at later stage
    to deny the holder public service if he did not pay say a TV licence or any other
    tax scam they can dream up

    1. Cian

      Has this happened? Has a service been denied because someone didn’t pay a TV licence? Or are you making stuff up? Saying how it might be used at some future date?

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