Departing Scylla, destination: Charybdis

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No easy ride for the Government lately, and that’s without looking across the pond

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6 September 2019 | 0

This week has been a particularly eventful one across the water in the UK houses of parliament. Not only has new Prime Minister Boris Johnson made history by losing the first three votes of his premiership in less days, but he was also rocked by the resignation of a junior minster who also announced his intention to leave politics, his brother Jo Johnson.

We watch from not so far away in fascination as what happens there has so much to do with what happens here, but there is also a grim joy in the halls of power here, I would argue, for the spectacle that is Brexit because it deflects from what would otherwise be calamitous events here.

” The DPC cannot be seen to be soft on these things, as the implications for organisations for whom the Irish DPC is their primary jurisdiction are extreme. The DPC cannot lose face in this.”

Firstly, a date has been set for the European General Court hearings of the appeal by the Government and Apple of the EU Commission ruling that Apple was given unfair preferment in its tax arrangements. September 17 and 18 will see the next steps in that debacle. But as if that were not enough, there is set another showdown, which affects much of the same cast of characters, and that is between the Data Protection Commission and the Government.

This latter debacle is, of course, over the now infamous Public Services Card (PSC).

DPC report

A major investigation by the DPC found that certain aspects of the use of the PSC beyond the Department of Employment Affairs and Social Protection (DEASP) did not have a legal basis. Furthermore, information gathered for identity verification purposes was held without justification and should be deleted.

The Government disagrees and has signalled its intent to appeal the findings of the DPC report, while the DPC has now said it will press ahead with enforcement of same.

So, on the one hand, we have the PSC that has been championed and trumpeted by government ministers and top public service officials, not least of which was An Taoiseach, both in his time as Social Protection Minister and Health Minister, and on the other, we have the DPC that is not only tasked with keeping the Government on the data protection straight and narrow, but also many of the major multi-nationals to whom the implications of any decision regarding either tax or data protection is off the utmost concern.

Both institutions are now poised for a no-back-down situation where, reputationally, they face a bruising.

Taxing affairs

With regard to the tax ruling, it is hard to say what how it will go. If the government is to prove that it did not give unreasonably favourable tax conditions to Apple, it must prove it. But, how does one prove that without showing precedent? Will the tax examples of IBM, Microsoft, Xerox, Symantec, LinkedIn, Facebook, Google, and more, be shown as examples? What if the findings are adverse and other such multinationals get hit with similar bills as Apple?

And what if it is proved, then while there is the windfall that now sits in an escrow account, exactly what will the punitive measures be for the violation?

As regards the PSC, the positions of both the Government and the DPC appear entrenched.

The DPC cannot be seen to be soft on these things, as the implications for organisations for whom the Irish DPC is their primary jurisdiction are extreme. The DPC cannot lose face in this.

The Government cannot be seen to have made such a complete mess of the implementation of what has been one of their flagship digital service projects that was hoped to be the basis of so many other digital public services into the future.

Just last Tuesday (03/09/2019), the cabinet was briefed on this by the two primary ministers involved, Paschal Donohoe and Regina Doherty.

A release on the gov.ie site says of the briefing:

“Following very careful consideration of the report and having taken the advice of the Attorney General’s Office the Ministers informed Government that they are satisfied that the processing of personal data related to the PSC does in fact have a strong legal basis, the retention of data is lawful and that the information provided to users does satisfy the requirements of transparency.

“On this basis the Ministers believe that it would be inappropriate, and potentially unlawful, to withdraw or modify the use of the PSC or the data processes that underpin it as has been requested by the DPC.

“Accordingly it is intended, in line with decisions of successive Governments dating back to 1998, to continue to operate the PSC and the SAFE 2 identity authentication process on which it is based.”

Opening positions

And so the starting positions are set — diametrically opposed and without apparent resolution.

Anecdotally, many data privacy commentators are of the opinion that the DPC findings are indeed correct, and that the Government interpretation, even informed as it is by an opinion from the Attorney General, is weak to say the least.

I would call that the Government loses on the data retention call, but gets some sort of out on the legal basis, and rushes through some legislative amendment that shores things up.

Everyone wins, or rather no one loses — badly.

In the current world of new politics, that’s about as good as it gets.

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