Mr. Simon McGarr:

It is a very significant step for the commissioner to have taken and it is valuable to see it in the context of what happened. The commissioner passed a series of questions to the Department. Her office was looking for clarification about things which had previously been asserted by the Department in respect of legality and so forth. She came back with 57 extremely detailed questions as to exactly what was meant by various items. The answers to those questions were produced and published publicly as the guide to the legal provisions associated with the public services card. The Department provided the commissioner with the answers. I read them at the same time the commissioner was reading them. I do not know what the commissioner thought of them except that, having read them, she commenced her investigation. That was the context. I know what I thought. Having read them I did not think the Department had answered the questions she had put to it and such answers as the Department had given would not give anybody who knew about the live issues in terms of data protection any comfort that the matter was being run in accordance with EU law and data protection law.

The commissioner's investigation is ongoing and there are very significant constraints as to what she may do. She must be independent in the performance of her duties so there are significant constraints in how she could comment on it. I recognise those constraints. Nonetheless, this investigation was started on foot of the legal basis provided by the Department. The Department said that this was its best foot forward and in response to that the commissioner opened the investigation. As Mr. Herrick pointed out, to my knowledge the commissioner has never used her section 10 power, which is the power to commence an inquiry without a requirement for a complaint but on foot of the commissioner's belief that an inquiry is necessary in respect of a State agency's or body's project.