Ireland and the UN’s chief human rights official are at odds. A Covid-19 tracing app may lead to a new data protection issue, writes
The contretemps between the State and the UN’s chief human rights official over the public services card (PSC) is interesting for lots of reasons.
Firstly, the fact that the little plastic card has managed to draw the attention of the UN at all seems to give the lie to the idea that the dispute over the PSC is just a storm in a teacup.
Secondly, the fact the Government has chosen to smack Philip Alston’s intervention on the card down so aggressively suggests that, even in the time of Covid-19, the PSC is an issue over which many State officials have deep concerns.
Since the pandemic began, the PSC has only been mentioned once by the Government — when it announced that the requirement to have a card has been waived for the duration of the crisis in order that people may access welfare supports, including the pandemic unemployment payment.
But that doesn’t mean the issue has gone away.
To recap: Last August, Helen Dixon, the data protection commissioner (DPC), released the deeply critical findings of a two-year investigation into the card.
She ruled that the PSC is unlawful when applied to services outside its welfare origins, demanded that the Government delete the 3.2m historical records it held on cardholders, and sharply criticised the lack of transparency surrounding the project.
After taking a brief period of time to collect itself, the Government bit back. In the guise of the card’s chief custodian, the Department of Employment Affairs and Social Protection, it said the DPC, the independent regulator, had fundamentally misunderstood the law in coming to her conclusions.
It touted the by-now infamous “robust legal advice” received from the Attorney General insisting all was well with the card.
The situation dragged on for several months before the DPC officially enforced her findings legally.
The State appealed that notice to the Circuit Court, where the matter now resides, safely ‘kicked to touch’.
Quite a bit has changed in the interim however.
For one, an election was held, one in which Social Protection Minister Regina Doherty, the main political cheerleader for the project, lost her seat. She remains in office due to the Oireachtas’ inability to form a new Government. But that will soon change.
Meanwhile, the day after Ms Doherty learned of her political loss, the department quietly altered its privacy statement to acknowledge the biometric (i.e, that a cardholder could be identified by their photograph) nature of the PSC, something it had denied until it was blue in the face in the 30 months prior.
Which brings us to Prof Alston’s intervention via a 40-page letter addressed to the Irish mission in Geneva.
In that letter, the UN’s special rapporteur on extreme poverty and human rights savaged the PSC project as “confusing” and “de facto discriminatory” against those living in poverty, and suggested that, in waiving the requirement for a card during the pandemic, the lie has been given to the idea that it a necessary to run a functioning welfare system in the first place.
That letter was sent to the Government on April 14, and, per normal procedure, would have been published last Friday.
Accounts of what happened next vary depending on who you talk to.
The letter was delayed until Tuesday of this week after entreaties from Ireland’s Swiss ambassador to that end.
That either represented “significant Governmental pressure being brought to bear”, as the UN’s High Commission on Human Rights saw it, or a common-sense approach so that Ireland could get its ducks in a row in response, per Irish public service officials.
Either way, when the Government did respond, it wasn’t afraid to get nasty. Reference was made to Prof
Alston having never (officially) visited Ireland during his six-year tenure.
“As your mandate will conclude at the end of this month, we look forward to following up with your successor,” it read, while accusing Prof Alston of deriving his own arguments in large part from the DPC’s report.
While the letter bore Tánaiste Simon Coveney’s signature, as it should given his status as Ireland’s diplomat-in-chief, the fact it was drafted by officials from the Department of Social Protection would come as little surprise to seasoned PSC watchers.
To my knowledge, Coveney has not spoken in anger of the PSC since immediately after the commissioner’s report was first published, and even then he suggested that her findings would have to be actioned, while the language contained in the letter is all too reminiscent of the pugnacious tone of the Department of Employment Affairs and Social Protection.
What is of most significance, though, is that the fight is clearly far from gone out of Social Protection, and by extension the Government, when it comes to the card.
And that is problematic because a new data protection nightmare, in the form of the HSE’s nascent contact-tracing smartphone application, is marching in the direction of this conversation at double pace.
That really is a project that will require the public’s full buy-in in order to be successful. And such a commitment will not be easily acquired given the State’s seeming commitment to endless secrecy and ambivalence towards privacy rights.