Judge questions 'mandatory, but not compulsory' Public Services Card

The Department of Social Protection has challenged an assertion by the Data Protection Commission that the Public Services Card is illegal.

A court case concerning the alleged illegal nature of the Public Services Card has heard a judge question “how are people expected to understand” that the card could be ‘mandatory, but not compulsory’.

The Department of Social Protection has challenged an assertion by the Data Protection Commission that the card is illegal. This morning’s hearing at Dublin Circuit Court was to hear discussion of the Data Protection Commission’s responding affidavit.

However, that affidavit, sworn on July 16, was never heard, with the State’s counsel Conor Power SC instead arguing that the DPC’s response, at 175 pages in length, is overly “voluminous”.

The majority of the half-hour hearing devolved into a debate between Mr Power and Judge Jacqueline Linnane as to whether or not it is appropriate for the court to censure one side of the proceedings for the length of their affidavit.

“I’m not suggesting there is any hearsay or anything unlawful” in the affidavit, Mr Power said. “I am suggesting its overall length may fall foul of several rules.” 

He said his instructions are that the Department has “significant concern as to the nature of the responding affidavit”. 

“We would suggest the DPC withdraw it and put in something more suitable,” he said. 

Judge Linnane replied: “I can’t do that, it’s not for me to say what is relevant and what isn’t.”

Counsel for the DPC Catherine Donnelly SC said that while their own affidavit is indeed 175 pages long, it was in response to four sworn statements from staff within Social Protection which amounted to 118 pages in length, first filed on December 19 of last year in appeal of the DPC’s enforcement order regarding the alleged illegality of the PSC.

Mr Power said that his instructions were to file a motion that the Judge should consider the suitability of the length of the DPC’s statement, sworn by deputy commissioner Tony Delaney on July 16.

“We can’t have the pot calling the kettle black,” Judge Linnane said regarding the length of the State’s own affidavits. Regarding those 118 pages of statements, she said “maybe the other side was encouraged by your own length”.

“I call that concise,” she said of the DPC’s 175-page statement. 

They have replied to your four statements with one.

Mr Power replied that the DPC’s statement has twice the number of paragraphs as the Department’s.

“The DPC set out its stall in its initial report (from August 2019, which ruled the PSC to be illegal for all services other than that of Welfare), which was 172 pages of closely-typed text,” he said.

“To come back with a response that is twice the length” of the State’s affidavits is not appropriate, he said.

“This is the social protection card, isn’t it? The mandatory not obligatory card?” the Judge said, in reference to former Minister Regina Doherty’s comment in August 2017 that the card “is not compulsory, but it is mandatory for services”.

“How could people be expected to understand that something is mandatory but not obligatory?” 

Mr Power said: “I have not said that, it was used in the media.” The Minister has responded to questions regarding that “at length”, he said.

Mr Power said that he would need another six weeks to respond with his objection to the DPC’s statement.

“I am trying to save you costs, I don’t think the court will grant you that,” Judge Linnane said, adding that the approach is “rather novel”. Any court would be slow to “dictate to accomplished counsel” what they could put in their affidavits, she said.

“I understand, but I’m under instruction,” Mr Power responded. “I wouldn’t hold your breath,” the Judge replied, to which Mr Power said he would “fully relay those concerns” to the Department.

“By the time this case goes around I’m not going to still be around,” the Judge said.

“Do you see my difficulty?” she asked of Mr Power. “I am trying to save you a lot of time and money.” 

“I am gratified, but those are my instructions at the moment,” he replied.

Ms Donnelly said that she “fully endorsed” the comments made by the judge, describing the State’s approach as “an attempt to stifle the response of the DPC”. She added that the DPC had already offered to agree to a list of approved issues between itself and the Department.

The case has been put back to October 21, when the State is expected to indicate if it still intends to file a motion objecting to the DPC’s affidavit length.