Data Protection Commission’s PSC enforcement appealed
Following the Data Protection Commissioner (DPC) ruling that the Government had no legal basis to operate the Public Services Card (PSC) as widely as they had been, the Department of Employment Affairs and Social Protection has lodged an appeal against DPC enforcement measures placed on the scheme.
The DPC launched proceedings against the Department of Employment Affairs and Social Protection after it concluded that the expansion of the PSC programme had no legal basis and that while the Department was free to continue to require the use of the card for some of the services it provides directly, other departments could not do so.
In challenging the formal enforcement measure that came as a result of these findings, Minister for Employment Affairs and Social Protection Regina Doherty, now operating in an acting capacity after losing her seat in February’s General Election, said that her department had “strong legal advice that the existing social welfare legislation provides a robust legal basis for my department to issue PSCs for use by a number of bodies across the public sector”.
The widespread use of the PSC is now free to continue unabated while the appeal is being considered. The Department only took the decision to legally challenge the DPC following the issuing of the enforcement notice, which came in December 2019 after the three month judicial appeal period, where the Department could have challenged the findings of the DPC’s initial report published in August 2019, elapsed.
The PSC had been required for people seeking to avail of a wide range of government services such as taking the written driver’s test, applying for citizenship or obtaining a first passport. The DPC report stated that there were “obvious and significant deficits in terms of logic and consistency” in the use of the programme. It also reported serious issues with transparency surrounding the PSC and required changes in how the operation was carried out, but did allow for the continued use of the PSC in social protection operations. While the Government challenges the enforcement measure, it has been reported that both the Department of Employment Affairs and Social Protection and the Department of Public Expenditure and Reform, two of the PSC’s most prevalent users, have shelved their usage of the cards in line with the DPC’s findings.
It is not the DPC’s findings that the Government is challenging, but rather the legality of the formal enforcement notice. There is a possible loophole that would allow the Department to avoid complying with the notice given that the DPC’s investigation into the usage of the PSC began before the implementation of GDPR worldwide. It is thought that it could be argued by the Department that the notice has therefore retrospectively applied the standards of a post-GDPR world to a pre-GDPR programme.
Taking the appeal to the Circuit Court also means that any subsequent appeal will be heard in the High Court, rather than the Supreme Court, which has shown particular interest in privacy cases in recent times. For now, the PSC continues as it had before the DPC’s findings were published.
