From top: Joan Burton; Regina Doherty; Public Service card sample; TJ McIntyre

This morning.

TJ McIntyre, chairman of Digital Rights Ireland and former Minister for Social protection  Joan Burton appeared on RTÉ Radio One’s Today with Seán O’Rourke to discuss the Public Service Card.

Mr McIntrye believes the PSC is being rolled out as a national ID card by stealth while current social protection minister Regina Doherty described the card as “Mandatory not compulsory”.

Sean O’Rourke: “The Minister for Social Protection Regina Doherty has given assurances about the security and operation of the Public Services Card. Mrs Doherty said she wanted to encourage all users of public sector services to apply for the card and explained the benefits of having one.”

[plays recording of Regina Doherty]

“We want to make access to the services more efficient so that you don’t have to give all the information again to the HSE or the Department of Education or whoever else it is that you are providing your data to so that once you’ve authenticated who you are, that you are who you are, that you shouldn’t ever have to go through that process ever again.”

O’Rourke: “On the line now, TJ McIntyre from Digital Rights Ireland, and Labour TD for Dublin West Joan Burton herself a former Social Protection Minister and I think, Joan Burton, it was you as Minister for Social Protection who introduced this card in the first place?”

Burton: “Absolutely, Seán and it has actually been extremely successful, if you were to talk to a lot of pensioners who when they reached the age of 66 they can get a card and they use it for instance for the free travel, if people who are over 66 have a look at their card they can see a little “FT” and if they have a spouse who would also claim the free travel being with them they’ll see a little S beside it, so in fact the card, which is now held I think by 2.8 million people, has been enormously successful.

But, and there is a but, the government has to respect that this is people’s personal data and they have to be able to assure people that their data is being treated absolutely with respect and that it’s not unwittingly passed on to any other agency or any other organisation and really the government have to tell people about it.

When we were rolling it out, when I was rolling it out we wrote to everybody, we invited them to come in, I think if other departments are going to actually get involved they need to do the same and equally to train the civil servants that this is people’s personal private data and they must respect their privacy.”

O’Rourke: “There seems to be uncertainty, for instance, as to whether farmers applying for grants, particularly EU payments, will have to use this card. Should we be told, well I suppose we’ll be told eventually, is there any reason why they shouldn’t have to?”

Burton: “Well, you could say, the main reason nowadays if you think about the use, if people at home think about the use of their phones and their iPads and so on, there’s a great deal of exchange of information electronically, but the holding of information by the government or indeed by public bodies or by any other body of people’s personal private data has to be treated in a very respectful, very careful and very safe way.

Now already, in terms of the card for instance, its widely used and I think pretty popular among, for instance, people who have free travel, I think it’s also popular among the companies, you know, like CIE, the trains, the buses and the Luas because it allows them for instance to cut down on inappropriate use, where that might be happening, in a small number of cases.

We really actually also need to have to look at it very strongly from an individual’s, citizen’s rights point of view and, you know, civil servants, you know, can’t as it were just run away with themselves on it and say, look we will bring you better services which definitely is a product of using IT properly, but we need to tell people about it.

You’d be a bit concerned at the moment that the Government has gone for, if you like in principle, some expansion of the service, which is fine, but they have to bring the public and citizens along with this and explain it to them in detail. I know some people going for a driving licence, for instance, for the driver theory test, have been quite surprised as to why they have to give, have to have a card, now again, I think young people who are about to get a driver’s licence, they’ll be happy to get it, I don’t think there’s any difficulty about that, but it needs to be explained to them and what then it might be used for.”

O’Rourke: “Stay with us Joan Burton, because I want to go now to TJ McIntyre, as I say he’s Chair of Digital Rights Ireland also lecturer at the UCD Sutherland School of Law, good morning to you and thank you for joining us, what are your misgivings about this, I mean is it just a question of it being properly explained?”

McIntyre: “No, not at all, I mean most fundamentally the legal basis isn’t there for this type of widespread data sharing. You have to remember of course that an ID card isn’t just a card, it’s also about an underlying database. It’s about how information is shared within government, about how many civil servants, how many people in different agencies, all have access to your private information.

So in 2014, the outgoing Information Commissioner Billy Hawkes said about the Department of Social Protection in particular, that, he singled it out for criticism, that he was entirely unsatisfied with the arrangements in place for the oversight of personal data in that Department.

My problem initially is that I don’t think that things have necessarily improved since then. We have a massive unified database, which takes information from other State agencies, bringing it all within the reach of people in the Department of Social Protection, without any safeguards being in place.”

O’Rourke: “What kind of safeguards, and we should tell our listeners for instance, we’re speaking with you on Skype, there may be a slight delay in our exchanges, but what kind of safeguards should be introduced or built into the system in your view?”

McIntyre: “Well European law is very clear on this, if you want to take personal information from people if you want to share private information between government departments, there has to be a legal basis. There needs to be primary legislation passed by the Oireachtas, it needs to say what private information can be acquired, who can acquire this information.

The law as it stands doesn’t do this, the law as it stands deals solely with the social welfare context, it doesn’t say use of personal data, the use of an ID card is a requirement for sitting a driver theory test and the main problem I have with this is that de facto this has become a compulsory item, this is something you have to have to function in society.

Now Regina Doherty has said that this is mandatory but not compulsory which is a type of Jesuitical hairsplitting that is a credit to her understanding of philosophy, but I think for the rest of us it doesn’t reflect the reality of the situation which is that if you can’t recover your pension without it if you can’t get a driving licence without it, if you can’t get a passport without it it is effectively compulsory .

It is booming an national ID card without any legal basis sidestepping any oversight by the Oireachtas and we need to have a public debate about that.”

O’Rourke: “But isn’t there great merit in just having the convenience of being able to establish who you are with such a range of authorities who can dispense a service be it a passport or a pension or whatever what’s wrong with the idea if the necessary legislation is put in place.

TJ McIntyre: “I love the idea Seán but that’s not the reality. So you mentioned passports for instance, wouldn’t it be great if you could just show your public services card to get a passport. in fact the Department of Foreign Affairs even though it insists on you having a Public Services card to get a passport doesn’t trust a Public Services card, you have to go in front of the Garda and verify your identity on the old fashioned way.

What’s happened here is that the Public Services card has become a sort of window dressing layered on top of the existing process you still have to fill lout paper forms you still have to take the old fashioned passport photographs, you still have to go into the Garda Station there’s no streamlining here, it’s just an additional cost.

This is something which has cost 60 million Euros or thereabouts to date and we really haven’t seen a return on that investment in efficiency or in terms of for instance the prevention of fraud.”

O’Rourke: “And coming back I should say to you Joan Burton, this notion that there’s no legal basis for people taking, say the driver theory test, surely that is a hiatus or at least a legal oversight or something which should have been put through the Dail properly?”

Burton: “I think, Sean, that what TJ is saying makes an awful lot of sense in terms of the protection of citizens’ rights and citizens’ privacy and I certainly know that the Commissioner that he’s referring to, there have been and they have been widely publicised in the papers over the last decade,.

Maybe ten or so more years ago there were a number of cases which involved people using, in some cases the cases are in the public domain, the media, in some cases people like insurance investigators having wrong access to social welfare information and utilising that in addition  to adjudicating on instance claims.

Now any use like that is completely wrong and actually it’s also illegal and if that is what TJ is concerned about he’s right to be concerned about it because as Minister I was also concerned about it and when i was Minister for Social Protection there was a widespread system of training people in the significant importance of privacy of people’s personal data. Now to some extent this is to some degree a cultural change in Ireland, you’re giving your information as a citizen in order to allow the State to provide you services more quickly and more efficiently and an lawful lot of that has actually happened.

It doesn’t mean that there is no problem in people accessing services, far from it, but what I do accept is that if it is being rolled out more widely it would be wise of the current government to look further at having a further development of charters in relation to citizen’s rights, having a look at European law and seeing there if there is potential for Citizen’s Charters in Ireland but the corollary of that, and it’s just as important, is that the public servants who use the info must be trained and must be heavily penalised if they infringe on social data.”

O’Rourke: “What do you say Joan Burton, as a former Minister for Social Protection, about the case of an elderly woman as reported being denied her pension because she just wouldn’t, she wasn’t prepared to sign up for that card.”

Burton: “Well obviously, I think that particular case is a matter for the current minister and, I mean, it is for the Minister to address that but in all honesty…”

O’Rourke: “No, hold on, you were the Minister in office who brought in this card which this woman objects to…”

Burton: “Absolutely, and in fact we had nothing but co-operation from senior citizens by the way we also discovered and this is also important and I am sure TJ will agree with this, in the current development of IT, identity test is a very very serious….”

O’Rourke: “Hold on, you are going on a bit of a detour, can you deal with the woman who was refused her pension because she objected in principle to, wouldn’t sign up for, this card?”

Burton: “That’s for the Minister to address.”

O’Rourke: “Well, how would you have handled it?”

Burton: “First of all, I don’t know the background in particular to this…”

O’Rourke: “The woman wouldn’t sign up for the card. What would you do if you were the Minister?”

Burton: “I think you would have officials of the Department have a discussion with her, talk to her to see how the issues could be addressed, I don’t want to comment on the case because I don’t have the background detail but all I know from my experience as Minister for Social Protection is literally every case is different so I don’t want to make a general comment which could be in some way unfair to the Minister or unfair to the officials or indeed to the woman herself, they should sit down and talk to her…”

O’Rourke: “Yeah, but if she’s not prepared to do it you’re basically saying, make her do it…you seem to be taking a view that, look, you know, the civil servants will just find a way to make her sign up for it.”

Burton: “Not particularly, I think whatever issues the woman has need to be examined and addressed.”

O’Rourke: “How would you address them?”

Burton: “How? By literally finding out what the actual detailed situation was and what the facts in the case were.”

O’Rourke: “The situation is that she doesn’t want to sign up for one of these cards.”

Burton: “That’s for the woman herself to explain to the officials. I’m not going to make a judgment on it but what I would say is that a huge number of retired people have the card, they use it in particular in context of the free travel pass and it has been an enormous success.”

O’Rourke: “Just to explain one thing, does it effectively remove the need for the free travel pass or does it entitle you to get the pass?”

Burton: “The old pass is no longer required. If you have free travel the public service card has an “FT” on it, there’s an “S” beside that which indicates where the spouse has an entitlement as well, it’s used up and down the country all the time when I’m on the train or on buses and so on people refer to it and I’d say for the vast majority of people it’s intensely useful.

The Department of Social Protection, Sean, you know, has a huge number of transactions with people at different stages of their life in every single corner of the country you’ll appreciate if I said John Murphy, Joan Murphy or Siobhan Murphy, we have multiple similar names in Ireland so you have standing numbers being used in the old days for tax and social insurance and these numbers then form the basis of your access to services but you do want, any Minister for Social Protection wants, to make sure that the right money goes to the right person but the other side of this is that having this information you really need to protect people’s privacy.”

O’Rourke: “TJ McIntyre, is this a situation which may be fixed or to they need to scrap the card?”

TJ McIntyre: “Well maybe I can go back a bit and talk about that case of the pensioner because it really illustrates a very significant problem. There’s two real concerns here one is that the legislation doesn’t say public service cards are mandatory to get benefits including pensions, the legislation says the Minister may use them to verify identity but it doesn’t say it’s the only way in which you may verify someone’s identity.

So if an elderly woman is being bullied into getting a Public Services card where there are other equally good ways of authenticating identity such as passport that is fundamentally unlawful. The Minister can’t adopt a blank policy, can’t fetter her discretion in this way by saying I’m only going to take one form of identification.”

O’Rourke: “So you’re saying there is no legal basis for denying this lady in her 70s a pension on the basis of her refusal to sign up for the card?”

McIntyre: “Where a Minister is given a discretion such as a discretion to verify identity in one way that’s a discretion that has to be exercised reasonably and proportionately and lawfully, and where a Minister has a discretion to use a different means of authentication such as a passport they can’t fetter their discretion, they can’t adopt a blanket policy which says we’re only going to take this card. That’s the first problem.

The second problem is why have they adopted this blanket policy? The reason here, and I think we’re only seeing it come to light now, the Government has signed up to a deal with the providers of the cards where there’s a target of three million cards to be issued by the end of the year,

If the Government doesn’t get three million out the door the Government has to pay for 3 million cards regardless and it appears to me that there is a mad push on at the moment to get people to sign up for as many cards as possible to hit that target without regard to the questions of proportionality or indeed the legality of doing so.”

O’Rourke: “Joan Burton, would you accept the argument that there’s no legal basis for insisting that this is the only way in which people scan prove their eligibility for a pension?”

Burton: “No I would say first of all and I just want to come back to an earlier point that TJ made when he said it was an ID card, the Public Services card is not an ID card, it’s a card for the use of obtaining public services in the first instance and what I was involved with for the purposes of social welfare entitlements and also there’s a long integration of tax information with social insurance information as I think everybody is aware of going back into when the social welfare system in Ireland broadly started in the 1950s.

Coming back, though, to the discretion of the Minister, obviously any Minister has to be aware of the different circumstances of different individuals and seek to address those as well as they can within the law but the law does specifically provide for the Department of Social Protection sharing information where it’s governed by law with other government departments.

Now what I am concerned about at the moment is that the Government is clearly intent on embarking an expansion on the use of the card and for utilising people’s card and social insurance numbers. What I am saying is that if this is happening people have to be advised and told about this and if law is required then that legislation has to be put into effect.”

O’Rourke: “Right… a lot of confusion about this, TJ McIntyre, aside from the need for safeguards obviously to be built in, is there a need for fresh legislation if you say there is no legislative grounds for denying somebody a pension on the ground that he or she is refusing to sign up for one of these cards?”

McIntyre: “I think you are absolutely right in this regard. There is no legal basis for a blanket policy which says we are going to deny people certain types of benefits for example if they don’t sign up for the card, that’s not what legislation says.

Equally, there’s a a need under European law for specific legislation about sharing this information with other State agencies, with the private sector in some cases, again we don’t have that at the moment but in a wider sense I think it’s important to step back a little bit and ask where is the public debate about this issue generally.

The reason we’re concerned about this is that it’s taken on the status of what is effectively an ID card, it’s taken on the nature of being effectively compulsory for everyone living in Ireland if you want to engage in day to day activities but without any public debate on the basis of a creeping expansion.

bear in mind that when the card was introduced first it was a simple piece of plastic, no chip, no photograph, it’s gradually acquired all these characteristics since and I think most fundamentally we’re saying that, if this has to be done we need a proper public debate about it,.

We need to discuss the experience of ID cards in other countries and the safeguards they have put in place, and this is something that has to be done by our elected representatives in the Oireachtas, not as a series of creeping administrative measures.”

Listen back here