From top: The PSC card; Minister for Employment and Social Protect Regina Doherty
Minister for Employment and Social Protect Regina Doherty spoke to Bryan Dobson on RTÉ’s Morning Ireland.
It followed the release of her joint statement with the Minister for Public Expenditure and Reform Paschal Donohoe last night – stating that it would be “inappropriate, and potentially unlawful, to withdraw or modify the use of the Public Services Card or the data processes that underpin it”.
This is despite the Data Protection Commissioner Helen Dixon’s findings on the card following a two-year investigation.
Contrary to the DPC’s report, the Government also said “the processing of personal data related to the PSC does in fact have a strong legal basis, the retention of data is lawful and that the information provided to users does satisfy the requirements of transparency”.
They said they came to this conclusion on foot of advice from the Attorney General’s Office.
Ms Doherty also said the PSC “has not seen any mission creep”.
In this morning’s interview, asked how much a legal challenge to Ms Dixon’s report would cost the State, Ms Doherty said “it would be in the Circuit Court so it probably wouldn’t be very expensive”.
At the outset of the interview, Mr Dobson asked Ms Doherty for her reaction to the DPC report.
Regina Doherty: “So Bryan, first of all, at the outset, I’d like to say that we, in the department and Government, have the highest respect for the office of the Data Protection Commission and the important work that they do.
“But, however, as a minister, I have to take my own responsibilities for Government policy with equal measure of respect and we have taken an awfully long time in the last two and a half weeks to really carefully and methodically consider and reflect on the final report from the commission and we’ve taken both our own legal advice from the Attorney General’s office and external counsel advice.
“And unfortunately, we don’t accept the findings in the report and will challenge them.
“And, to that affect, we wrote to the commission yesterday, seeking at the earliest opportunity, an opportunity to meet with the commission to discuss the findings and to outline exactly what it is that we find is the legal basis and it’s a very strong legal basis, as far back as 1998 when the conception of the idea of cross Government services, across any Government platform was conceived by that Government. But successive Governments since then have changed the legislation to allow and to anticipate the sharing of the data.
“So that Irish citizens can do their business and identify themselves just once and then be able to access services in an efficient manner.”
Bryan Dobson: “But just on a couple of specifics here. Her requirement that you stop processing data in those areas where she [Helen Dixon] says there’s no legal basis for the card, are you going to do that or are you going to continue processing data?”
Doherty: “What we’re going to do is to continue acting on the basis of the legislation as it would have passed in 2005….”
Dobson: “In defiance of her finding?”
Doherty: “In our basis, gives a very clear and legal underpinning of what it is that we’re doing and so at the very early…”
Dobson: “She says you don’t have that legal basis, it’s not there.”
Doherty: “Well, to be respectful, where we 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 and…”
Dobson: “Minister, she spent two years investigating this and her conclusion is that you don’t have the legal basis. She’s the person who’s charged. It’s her responsibility to protect the public interest, to protect all of our privacy and our data. And she says you don’t have the legal right to do this.”
Doherty: “And again, not to labour the point, Bryan, we believe that we do have the legal rights and the legislation to underpin exactly what we’ve anticipated from 2005 and the legislation and that’s why we’d like to sit down with the commission and discuss her concerns and to see if there’s any way we can overcome her concerns that she has with regard to the findings that she’s issued.”
Dobson: “Will you publish your legal advice so we can see what it is?”
Doherty: “I certainly won’t publish the legal advice but what I absolutely intend to publish is the commission’s report and our response to it. But, again, what I would rather do, rather than prejudice a meeting that I would really like to have with the commission, I would wait until the commissioner responds to me at some stage today or tomorrow before publishing. But I have absolutely intentions to publish the report and our response to it.”
Dobson: “Is it likely this will end up in court? Are you prepared to take it to court?”
Doherty: “Depending on where we go from here. At the moment, I don’t have a legal basis to take it because the report wasn’t issued under the legislation, the Data Protection Act…”
Dobson: “But if she takes enforcement proceedings – you’ll fight that? Will you?”
Doherty: “In my letter yesterday, I have given notice that, yes, we would intend to challenge within the courts, yeah.”
Dobson: “So you’re prepared to use public money to confront somebody who’s responsible for defending the public interest?”
Doherty: “I think the way the Oireachtas established the Data Protection Commission was exactly allowing for differences of views and differences of opinion and this certainly is not the first time that a regulator has been challenged by a Government body and I’m probably quite sure it won’t be the last.
“But what I absolutely have a responsibility to do is to make sure that I deliver public services to the people that we serve, that I serve, in the most efficient manner…”
Doherty: “…we really believe that we have a very, very strong legal basis to do exactly what we have done and it would actually be illegal for us to change…”
Dobson: “And you’ll defend that all the way? In terms of legal action, you’d go all the way in defending that?”
Doherty: “I think that’s my role and responsibility…”
Dobson: “What would that cost Minister in legal fees?”
Doherty: “I don’t know but again it would be in the Circuit Court so it probably wouldn’t be very expensive. But what would be absolutely enormously expensive, Bryan, is that if we decided to act illegally and change Government policy and services delivery without having a serious conversation around the difference of opinion of the interoperation of the law.”
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Yesterday: Put It On The Card
Elizabeth Farries, Information Rights Programme Manager for the Irish Council for Civil Liberties, also spoke with Mr Dobson this morning.
During her interview, they had this exchange:
Bryan Dobson: “I’m wondering what’s your problem here? Do you have an objection in principle to this kind of card which can be applied across a whole range of Government services, it seems, on the face of it, something that might be very, might be welcomed, improve efficiency and productivity, in the provision of public services. Do you have an objection in principle or is it the way it’s being done?”
Elizabeth Farries: “ICCL and other experts have been opposed to the card from the start. We are opposed to it in principle and we’re opposed to it for good reasons. It’s illegal, the Data Protection Commissioner has said that and we’ve been saying that for years.
“It doesn’t respect privacy rights which are fundamental rights which we should all take extra care of in our technological age.
“And it targets the poor.
“And so crucially now the DPC is saying these same things. There are significant data security risks attached to the card and we have a group of privacy experts from all over the world right now with the international network of civil liberties organisations and they’re dealing with very similar problems in their countries.
“And they’ve seen devastating consequences of cards like this. In India, we have someone from the Human Rights Law Network talking about the Aadhaar card and the massive breach that happened there – they’re exposing important information of a billion people. You’ve got…”
Dobson: “I’m just wondering if the legal safeguards, if the legal foundation was put in place, if the safeguards were put in place, if the transparency, which the data commissioner says isn’t there, if that was put in place. If those safeguards were put in place and people had assurances that their data would be treated properly and be protected, should the card have a future?”
Farries: “There are no legal safeguards, as it stands, to protect from the security risks attached to the card in its current form. It’s absolutely unnecessary to collect very sensitive data, including biometric data used through facial recognition.”
Dobson: “That wasn’t a finding of the data commissioner, I think.”
Farries: “This is certainly our position.”
Farries: “It has been a finding of the data commissioner that it’s unnecessary to collect the huge amount of information without adequately …”
Dobson: “But, biometric data, she didn’t rule on that question.”
Farries: “We understand that she’s going to follow up on that question. Because it’s such an individually important question that it requires and investigation of its own.”
Dobson: “Very good.”
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