The Public Services Card

AN OIREACHTAS COMMITTEE has warned that the rollout of the controversial Public Services Card (PSC) both raises “significant human rights concerns” and may leave the State financially liable due to data protection breaches regarding EU law.

The Irish Council for Civil Liberties (ICCL) this morning went before the Joint Committee on Employment Affairs and Social Protection and said that the PSC should be discontinued in its current form as:

There is no clear legal basis for it (the fact that State interference with the privacy of an individual must be legal is a basic EU human rights law requirement)

The system is not proportionate to the card’s stated aim (that being the increased efficiency of government services and cracking down on welfare fraud), and

There is no dedicated watchdog for the database of citizens’ information that has been created

The council added that it is “gravely concerned” regarding the project as a whole.

The PSC was first introduced in 2012, and initially was used purely as a gateway for jobseekers’ benefit.

As of last summer its usage has been expanded to driver theory test and first-time passport applications, together with all services offered by the Department of Employment Affairs and Social Protection (DEASP) – with further expansion to many more services firmly in the pipeline.

Speaking this morning before the committee, executive director of the ICCL Liam Herrick lambasted the legislative developments regarding that PSC, and said that the project should be suspended until the Data Protection Commissioner (DPC) has completed an investigation into the scheme.

At today's committee hearing, l to r, Liam Herrick, Maeve O'Rourke, Simon McGarr Source: Oireachtas.ie

Consistent criticism

The legality or otherwise of the PSC project has been one of its most consistent criticisms, grouped with the suggestion that it is an attempt to create a national ID card by stealth.

“We have a number of lawyers working for us who have struggled to identify a clear picture as to where the social welfare acts currently stand,” he said.

The initial legislation used to establish the card was the Social Welfare Consolidation Act 2005. That has since been amended consistently, year on year, since 2010.

Herrick pointed out that the four sections of that act on which any grounds for expanding the PSC are based have been amended 74 times between them, and that no consolidated, standalone act has ever been drafted, a fact bemoaned by his colleague at the committee Maeve O’Rourke, who stated she had recently spent eight hours trying to negotiate the various acts seeking for a coherent statement of purpose, to no avail.

“The government has repeatedly cited the SAFE2 (Standard Authentication Framework Environment – which involves taking a citizen’s photo and signature, among other things) classification for identity authentications as opposed to the old SAFE1,” Herrick said.

To be clear, this is an internal departmental distinction, not any recognised international standard.

He bemoaned the lack of a “clearly defined independent supervisory authority” with responsibility for monitoring the management and security of the public’s data with regard to the PSC, “despite this being the norm of EU law where issues of surveillance and privacy are concerned”.

Minister for Employment Affairs and Social Protection Regina Doherty Source: Leah Farrell/Rollingnews.ie

Herrick also made what he said was an “important political point”, that the card “unfairly targets those dependent on welfare payments, the most vulnerable sections of society”, citing the example of a lady who had her State pension stopped late last year after refusing to register for a card.

“Ordinary people have asked the government what the legal basis for the card is and received no answer,” he said.

“There should have been an open democratic discussion before the project was initiated, and it is deeply regrettable that is not how the government has chosen to proceed.”

“The ICCL is not convinced that the PSC is necessary to achieve a legitimate aim, and believe is a disproportionate interference with privacy.”

There is an inquiry by the DPC into this scheme. We call on the committee to call on the government to suspend the scheme as it currently stands.

‘Major risk’

The PSC has never been discussed in a dedicated debate in Dáil Éireann. Over three million cards have been issued thus far, with the total project costing the State in the region of €60 million.

The card is currently subject to an investigation by the Data Protection Commissioner (DPC) Helen Dixon as to whether or not it complies with the law. It has also been highlighted by the Office of the Comptroller and Auditor General (C&AG) that no actual business case was ever prepared with regard to the card project.

Speaking on RTÉ Morning Ireland today DEASP Minister Regina Doherty reiterated that she has no plans to suspend the PSC.

“I won’t, no,” she said.

A week doesn’t go by without a case being prosecuted of social welfare fraud that was discovered by SAFE2.

She added that the decision to expand the card to other departments was “not my plan”.

That’s Public Expenditure and Reform. I only look after it in the guise of accessing social welfare.

Doherty said that, in justification of the movement to the SAFE2 system of identification, “times are changing, technology is changing, what used to be acceptable is no longer”. “SAFE2 is working. It’s a more thorough process, a more detailed process”.

Simon McGarr Source: Oireachtas.ie

Director of Data Compliance Europe Simon McGarr meanwhile said at today’s committee hearing that the Public Service Identity (PSI) database which underpins the card itself is “one of the major financial risks that the State has taken on” regarding data protection compliance.

He said that the when it comes to compliance with EU standards (not to mention the comprehensive General Data Protection Regulation which is set to take effect in May of this year) the “State is attempting to legislate away its own duties”, by for example making government bodies exempt from fines for data breaches.

“All Irish legislation lives under the shadow of European law,” he said. “Whatever laws are passed, and the State has passed all sorts on the data sharing front, they cannot surpass the requirements of the CJEU (Court of Justice of the European Union).”

I’m attempting to sound the alarm. This is not something beneficial to the state financially. So far the project has cost €60 million. The State says it has garnered somewhere between €1.7 million and €2 million in savings. It is costing the State money and there is a significant uncrystallised liability also.

McGarr suggested that a government decision of September 2013, which set in train the State’s increased emphasis on data sharing and the PSC expansion, had called for a review of the Personal Public Service Number (PPSN) and all the legislation surrounding same.

“As of October 2017 that review has never been started. It’s a missed opportunity.”

He conceded that the PSC issue is “not a one off – it has passed under the aegis of a number of different governments”, but said:

If one wishes to bring in a national ID card, you have to face up to the need to have a debate before bringing in the law. I wouldn’t agree with such an ID card. But if there’s a discussion at least I have the chance to win or lose that debate.

“When I hear that the department has issued three million cards that means, if I’m correct and the card is not in compliance with EU law, that we have a three million person contingent liability, because people have been told that they have to get the card,” he added.