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THE GOVERNMENT COULD be set for a legal showdown with the Data Protection Commission as both sides refuse to move from their positions on the Public Services Card (PSC).
The commission, whose long-awaited report about the PSC was made public yesterday evening, has suggested it will issue an enforcement order against the government if it continues to process data in relation to the controversial card.
And the standoff could even see criminal proceedings initiated against the Minister for Employment Affairs and Social Protection, currently Regina Doherty, if the government continues to ignore the findings of the report.
The commission’s findings, first revealed last month, include a ruling that there is no legal basis for a person to be required to get a PSC for anything other than social welfare payments and benefits.
Data Protection Commissioner Helen Dixon also ordered the government to immediately stop processing the data of citizens for services outside of the department’s remit.
In a statement to TheJournal.ie, a spokesman for the commission also said it was preparing to issue a so-called enforcement notice to the department, which would order it to comply with data protection laws and to protect the rights of citizens.
But the Minister said last night that she was satisfied that the government’s processing of data for services aside from social welfare payments is legal, citing advice from Attorney General Séamus Woulfe.
In a statement accompanying the publication of the report, Doherty said:
While we respect the office of the DPC, in this instance based on strong legal advice, we cannot agree with the findings contained within this report.
We have 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.
Criminal proceedings
Fred Logue, a solicitor who specialises in data protection law, explains that if the government continues to ignore orders from the Data Protection Commission, it would open the department up to legal proceedings.
“If an enforcement notice is issued by the Data Protection Commission, that’s an order for the department – as a data controller – to take steps to comply with the Data Protection Act,” he tells TheJournal.ie.
“And if they don’t take steps to comply with the Act, it’s a criminal offence, dealt with in the criminal courts.”
And because the department doesn’t have a separate legal identity, that outcome could mean that criminal proceedings are launched against the Minister, as head of the Department, herself.
According to the Data Protection Act, data controllers who are found guilty of failing to comply with enforcement notices face a fine – which Logue suggests could be up to €100,000 – or imprisonment of up to 12 months.
However, it is unlikely that Doherty would face a criminal trial, as the commission would likely seek to resolve the issue outside court through an amicable resolution instead.
Alternatively, the government could take a judicial review of a court’s decision if there is a finding against the Minister, meaning that a prosecution is unlikely.
Private setting
But Logue also points to another outcome of the commission’s report that could be problematic for the government: the ability for an individual to take a case against the department or other agencies based on its findings.
In its report, the commission noted how the department’s website indicates that the PSC will soon be required to make an appeal to the Department of Education in relation to the provision of access to school transport scheme, despite there being no legal basis for this.
It’s cases like this, Logue suggests, that could land the government in hot water.
“The outcome of the commission’s investigation is a legally binding finding,” he says.
“The report is a finding on the law, so whatever way you look at it, it’s something people can rely on if there are breaches of their rights under the Data Protection Act.
“There’s not even a requirement for commissioner to issue an enforcement notice; people can rely on the report to have its findings enforced in a private, civil setting if they want to.”
This outcome becomes more likely if the government continues processing data related to the PSC, as it has suggested it will, because it has already been told not to do so.
As well as school transport schemes, the PSC is already being used for other services outside the department’s remit, including passport applications “in certain circumstances” (such as first-time applications by those over 18) and Irish Naturalisation and Immigration Services.
For its part, the government has already said that it will appeal the findings of the report, although is is unclear on what basis it will do so.
Following the report of the publication last night, the department said it would not comment further, saying that to do so would be inappropriate given the possibility of impending court proceedings.
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Not enough socialism, apparently.
@P.J. Nolan: essential ingredients of successful durable socialism is a brutally heavy handed military government, fake elections and an elite oligarchy. It never works without those pillars.
@alphanautica: you mean like norway, sweden or finland? Awful kips huh? Thank god we live here.
@Fake Avast: Yeah it was the USA that made Venezuela into an ungovernable socialist hellhole and not the policies of Hugo Chavez as he rots in the ground
Venezuela is AAA-PBP-SF’s role model economy.
This article is clearly as cheap shot at undermining their economic expertise.
@alphanautica: #pearseknowsbest
@Honeybadger197: Corbyn should head over on a mission. Give him a good PA system on the main square, they’d all settle down quite quickly once the hear what he has to say.
@alphanautica: There is virtually no policy in Jeremy Corbyn’s manifesto that isn’t already followed in the Nordic states. Try playing another record, the Venezuela analogies are looking every bit as threadbare as Lynton Crosby’s IRA smear campaign.
@Harry Whitehead: you might want to get on to Corbyn so: ‘Chavez showed us that there is a different and a better way of doing things’ are his own words coming out of his own megaphone.
All those Corbyn cultists from earlier on should take note that this is his vision of a country that “got socialism right”.
How did we accept austerity so easily? Was it because it mainly dehumanised the poorest & sickest citizens especially Labour and FGs extremely regressive 5 budgets from hell.
Labour you are Still 4-6% in the polls cos u lied to the most vulnerable and caused homelessness ti become the norm for the badly off and people are years now waiting in agony on hospital waiting lists.
No matter what happened in Venezuela it wasn’t these young people’s fault more the fault of older people. If it was my child I’d want them where they were safe which is here.
The Journal goes straight for the click-bait kill as usual. A man wasn’t set alight, he was beating an abandoned state-owned motorbike with a stick, the petrol tank exploded and his clothes caught fire. It was a horrific event, but please don’t resort to lazy journalism for the sake of dramatic headlines
…oh, the unending joys of socialism!
Hopefully Venezuela has an Enda Kenny rising up through the political ranks who can rescue their country from the brink.
As happened in Ireland, we barely escaped the deathly clutches of the hard left, those naive self-convinced loons beset on suffocating economic improvement through hard work and instead wanting to suck an economy dry with their inert socialist begging bowl.
Perhaps there will be Enda Kenny tshirts circulating soon in Venezuela, modelled on Che Guevara, another proud Irishman of principle.
He’s not asking anyone to pay his tuition, the chap was robbed by his government like all the other students who have been robbed of life savings who came here to study. He is highlighting a situation that a lot of Venezuela’s who are here are in. Venezuela is in a dire place and the people are being killed in the streets everyday. They are being starved and robbed. How you can make light of that is beyond me.
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