Freedom of Information (Amendment) Bill 2003: Second Stage.

Tuesday, 4 March 2003

Seanad Eireann Debate
Vol. 171 No. 14

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Question proposed: “That the Bill be now read a Second Time.”

Minister for Finance (Mr. McCreevy): Information on Charlie McCreevy  Zoom on Charlie McCreevy  I am pleased to introduce the Freedom of Information (Amendment) Bill 2003 to the House. I am conscious that the Freedom of Information Act began its life as a Seanad Bill and that this House played an important role in shaping that legislation. It is essential that citizens have confidence and trust in Government and public administration. The Government is firmly committed to this principle, as was its predecessor. That is the reason we significantly extended the Freedom of Information Act from just 67 bodies when it came into force in April 1998 to include 370 or so today.

At regular intervals, beginning in October 1998, the Government has made significant extensions to the remit of the original Act, first, by extending it to local authorities and health boards, then to voluntary hospitals and subsequently to numerous other State agencies, bodies and institutions, including those in the enterprise, broadcasting and third level education sectors. By extending FOI throughout the public service, the Government has ensured it has become a permanent and valuable feature of public administration.

The Government has committed itself to a continuing programme of extensions with the aim that by the end of 2005 all bodies, organisations and groups appropriate for inclusion will be covered. It has also expanded the scope of the Act through secondary legislation. For example, regulations have been made to allow for the release of records to the parents and guardians of minors and persons with a disability and to the relatives and representatives of the deceased.

Usage of the FOI Act bears out its important role in public life today. Since April 1998 tens of thousands of requests have been made to public bodies, of which the large majority have been granted in full or in part. However, the success of FOI cannot be judged solely by such statistics. It was anticipated before FOI was introduced that it would serve to encourage the release, on an informal administrative basis, of information [1133][1134]which would previously not have been readily available. A recent example of this can be seen in the move by universities and other third level education institutions to release students' examination scripts without requiring students to invoke the Act formally. A further example is available from the health boards, where, I understand, some three quarters of requests for personal records are dealt with informally, with requesters not being required to go through the formal FOI process.

In these and other ways FOI has served to improve public administration and heighten public confidence in the institutions of State. By significantly extending FOI and introducing a range of other measures such as the Standards in Public Office Act, the Prevention of Corruption (Amendment) Bill and the Local Government Act, which established a comprehensive ethics framework for local authority members and officials, the Government has shown it is firmly committed to the maintenance of standards and improved accountability in public life.

The Government is also committed to effective government. While freedom of information is important, it cannot be the major determinant of how the Government conducts its business. All organisations have the right to decide how to organise their business and the Government is no different. Our work is complex. In reaching decisions on important economic and social issues the Government has to look at different alternatives and approaches, debate these freely and then reach a joint decision on behalf of the community. The framers of the original Act recognised this when they enshrined in the Act key protections for Government records which would last five years. It was also recognised that these records had to be protected.

It is becoming increasingly clear, however, that five years is not an adequate period for this purpose. As the high level group established by the Government to review the operation of the Act stated: “.as experience is gained in the operation of the Freedom of Information Act, it is evident that a five year moratorium on the release of Cabinet records is too short. It does not give Ministers the assurance that they require to commit views freely to the record if those views are to be divulged in such a relatively short space of time”. I have no hesitation, therefore, in recommending to the House that the restriction of five years for Government records should be raised to ten. A ten year limit still leaves Ireland with a liberal regime. In other jurisdictions, such limits range from ten to 30 years. Canada, for example, operates a blanket restriction for 20 years on a wide range of records under the general heading of “Cabinet confidences”.

Another change contained in the Bill to the exemption for records of the Government relates to inter-ministerial communications where such communications deal with a matter already on the Government agenda, on which a submission to Government is proposed or relate to an issue [1135]delegated by the Government for resolution between Ministers. Specific protection for such records was recognised as being necessary by the high level group as they are an extension and in direct support of the exercise of collective responsibility.

There is also a measure to provide for exemption of records of a committee of officials set up specifically to assist Cabinet deliberations on matters before it, where that committee is mandated to report directly to the Cabinet. In order to ensure that such protection is only afforded to records which genuinely fall within the categorisations mentioned, the Bill provides that the Secretary General to the Government must certify that the committee concerned meets the relevant requirements. The focus of the new Bill is, therefore, on the business of Government. This was also the focus of the work of the high level group which looked very carefully at the working of the existing Act and made a number of recommendations.

While there has been a particular focus on Cabinet records – including the extension of the period of protection for such records from five to ten years – the high level group also recommended a number of other important measures, including the introduction of up-front fees. Such fees are long overdue. The cost of administering FOI is not reflected in any meaningful way in the existing fee provisions. While mandatory, these provisions have not operated as was originally intended. The original Act clearly states that a fee must be charged for an FOI request unless the request is for personal information or in cases where exceptional circumstances apply. In practice, the opposite has been happening with charges being the exception rather than the rule.

One requester asked a couple of years ago for access to the diaries of a number of civil servants and Ministers. There were hundreds of records. Every diary and thousands of pages of documentation had to be read through, assessed and considered for release and personal or sensitive material deleted. The cost of processing that request was probably well over €10,000, but the cost to the requester, including photocopying, amounted to around €600. I understand those charges were appealed.

The cost of servicing democracy through FOI, therefore, does not come cheap. A single FOI request can take many hours to process. This involves the basics of acknowledging the request, discussing the matter with the requester to ensure the request is adequately focused and understood, estimating the search and retrieval time required, locating relevant records, examining each record line by line for any exempt matter and considering public interest arguments for and against release. Where third party information is involved, the process can be even more onerous, particularly in light of the requirements to locate and contact third parties, issue formal consul[1136]tation letters, consider submissions and notify appeal rights. The Oireachtas recognised that a fee should be imposed for FOI requests as a reflection of this burden.

The difficulty is that the fees have not always been charged. The true cost of FOI is not recognised. The Bill, therefore, contains a provision that will permit the Minister for Finance to prescribe fees for requests for access to records and for applications for reviews of decisions, which must be paid before anything else happens. Contrary to some reports in the media, the level of such fees has not been decided. I will be giving careful consideration to the setting of these fees and, in doing so, will be careful to strike a balance between the burden and cost of administering the legislation – which is unquestionably significant – and the need to allow people to continue to have access to information. I should stress that the Government does not favour the charging of an up-front fee for personal information and the Bill explicitly precludes this possibility.

A number of other measures in the Bill provide an enhanced degree of protection in key areas of Government and parliamentary activity. These include enhanced protection for records relating to ongoing deliberations, particularly the deliberations of Departments of State.

The extent of a deliberative process can be difficult to define. Accordingly, a measure is proposed whereby a Secretary General will be able to certify when a deliberative process has concluded. This should provide greater certainty in relation to the level of protection available for records related to the ongoing deliberations of Departments of State. At the end of the deliberative process, the Secretary General must revoke the certificate and the records will then be considered for release.

There is also a proposal to enhance the protection available for certain sensitive records related to international relations, security and defence. While the existing Act appears to provide, in subsection 24(2), a high level of protection for diplomatic communications and other records, the high level group identified difficulties in the interpretation of this section which have given rise to concern. The Government has, in turn, decided that certainty is needed to protect certain sensitive material so that Ireland's ability to function effectively at international level is not restricted by a lack of confidence about, for example, our ability to protect sensitive exchanges with other countries or international organisations.

Other notable measures in the Bill will provide greater clarity and enhanced protection in relation to the work of tribunals and public inquiries and protection for parliamentary briefing papers. I look forward to elaborating on each of these areas as the Bill progresses through the Houses and to the contributions of Senators.

The Bill contains a series of technical measures to improve the operation of the Act. These include a strengthening of the administrative protections available to public bodies against mani[1137]festly unreasonable or vexatious requests. Senators may recall a case that came to light within the first year of FOI where a single individual made 466 requests, and was responsible for 101 internal review applications and 35 appeals to the Information Commissioner. Of these requests, 194 were made to a single public body. As the authors of a technical report on the Act noted in relation to this case “neither those who campaigned for FOI nor the majority of requesters who make reasonable use of the Act would have expected that a single individual would, through extreme usage of the Act, cost the taxpayer well in excess of £100,000 or €127,000 in an eight month period following its introduction.” While it must be emphasised that the vast majority of requesters act responsibly and make good use of the Act, I am satisfied that measures must be taken to provide an enhanced degree of protection against those few individuals who choose to use FOI in a vexatious way.

Other technical measures in the Bill include a new provision clarifying that protection is available for records whose release could endanger the life or health of persons, the removal of the restriction on an appeal to the Supreme Court from a decision of the High Court and an extension of the basis on which a public body is empowered to refuse to confirm or deny the existence of records. The Bill also provides for an extension of the period that the Information Commissioner has to complete a review under section 34 of the Principal Act from three to four months. Experience to date indicates that the three month deadline envisaged by the Act is not achieved in many cases.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  The Minister will not give them enough money.

Mr. McCreevy: Information on Charlie McCreevy  Zoom on Charlie McCreevy  In extending this timeframe to four months, it is reasonable to expect that the vast majority of reviews will be closed within that period.

The various technical measures in the Bill draw from a review conducted by the Civil Service users network in 1999, from discussions and interactions with the Office of the Information Commissioner and from experience gained since the Act came into force.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  That is a travesty.

Mr. McCreevy: Information on Charlie McCreevy  Zoom on Charlie McCreevy  As Senators will be aware, we have an elaborate system for supporting the implementation of FOI and for involving the various stakeholders and users of the legislation in dialogue on its operation. Within my Department, the FOI central policy unit chairs an interdepartmental working group and a public service users network with representatives from all sectors of the civil and public service covered by the legislation. Below these two umbrella groups, networks such as those in Government Departments and offices, local authorities, health boards and [1138]universities meet regularly to consider issues of common concern and to share learning and experience. All of these networks and groups and the other arrangements underpinning FOI have ensured that the Act has been kept under continuous review since it came into force in 1998 and that a considerable amount of experience has been built up within public bodies.

The Freedom of Information Amendment Bill is based on this experience. It has been prepared on foot of the Government's consideration of the high level group report, which looked at various sources, including the annual reports of the Information Commissioner and his report in July 2001 on compliance by public bodies, the Civil Service users' network report in 1999 and the views of the FOI central policy unit of the Department of Finance, which, as I have said, monitors the implementation of the Act on an ongoing basis.

The views of practitioners in the wider FOI community, such as academics, journalists and frequent users of the legislation, have also been available to the unit on an ongoing basis, through the print and other media and through various conferences hosted and attended by the unit. Included in the latter is the recent FOI annual conference, which was attended by representatives from across public bodies, the media and academia.

The Bill has been informed by a wide range of experience and views over the past five years. It contains sensible, practical measures designed to allow the Government and public administration to work effectively. I commend it to the House.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  The manner in which the Opposition earlier indicated its total revulsion for the Bill exemplified the general public revulsion at the announcement of its publication, which came like a bolt from the blue last Friday. It had been signalled in advance that the Government intended to tamper with the Freedom of Information Act because it penetrated too deeply into what was happening behind closed doors at Government and official level.

Nobody in their wildest dreams could have foreseen the extent of the amendments proposed by the Government in the Freedom of Information (Amendment) Bill 2003. This Bill effectively is not amending legislation; it is a repeal of the Freedom of Information Act 1997. It turns on its head the main and pivotal functions and thrust of that Act. It literally castrates the Act from the point of view of making available information to which individuals, the general public and the media have an absolute right. It will rank as one of the most arrogant, negative, sinister, subversive and heavy-handed pieces of legislation ever brought before the Oireachtas.

Senators:  Hear, hear.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  I am surprised that ordinary elected Members of either of the Government parties would countenance supporting the [1139]measure before the House. Not alone are the rights of ordinary citizens, organisations and the media being trampled on and interfered with, but the rights of ordinary Members of the Houses of the Oireachtas are also being trammelled and trampled upon. If ever there was an opportunity for ordinary Senators and backbench Deputies to take a stand – they have recently done so forcefully on issues such as the dual mandate and achieved concessions – and to indicate that they are not prepared to act as puppets or pawns and not to be dictated to by their colleagues in Cabinet, then surely this is the opportunity. Judging by the manner in which the issue has been dealt with thus far in the House, people are not prepared to take a stand. They should do so because the Bill is wrong and it is a bad day's work.

The utter contempt being shown for people's intelligence by attempting to portray the measure as being “in the public interest” is matched only by the manner in which the Bill has been brought before the Seanad today. As has been said repeatedly on the Order of Business, the Cabinet took a decision to go ahead and publish the Bill at last Tuesday's meeting, yet it was not published immediately or put into the possession of Members or the public. It was not published until Friday when neither the Dáil nor Seanad was sitting. Those of us who reside outside Dublin did not receive our copy of the Bill until yesterday and some on this side have still not received a copy. Yet the Second Stage debate is listed for this afternoon, a mere 24 hours after most people received the Bill in the post.

Irrespective of how the Leader is trying to defend what is happening, this ramrodding of legislation is wrong. It shows complete contempt for Parliament. Legislation should be rushed through Parliament only if there is an imminent threat to the security of the State and then only where there is clear and overwhelming support from all sides of the House.

When I was Government Chief Whip we had an agreement in relation to legislation coming before the Dáil that a minimum of two weeks should expire before the Bill would be taken at Second Stage. A further gap of two weeks would expire after the passing of Second Stage before the matter went to Committee Stage. The same agreement pertained when I was Opposition Chief Whip. That was a protocol that was breached only in the rarest of circumstances. In my time in the Dáil I can only remember two or three occasions when we agreed among ourselves – and there was agreement – to rush legislation through. One was the Bill to regularise, regulate and save Larry Goodman's empire, the beef industry and our beef exports.

The Leader of the House has indicated that the Bill is not being guillotined. Effectively, it is being guillotined because the House is prepared to sit until any hour, into tomorrow morning if necessary, to see this legislation through. There is a de facto guillotine operating here. It means that by [1140]2 a.m. or 3 a.m. every Member who wishes to do so will have contributed because of the time restriction of 20 minutes. Effectively it is a guillotine by stealth.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  It is a short guillotine.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  The Leader of the House has also indicated that Committee Stage is to be taken next week. I ask the Leader and her Government colleagues to insist on a moratorium of at least two to three weeks to enable Members on all sides to consult and enter into dialogue with interested parties in regard to tabling substantial amendments. I ask that no attempt whatsoever be made to introduce the guillotine on Committee Stage deliberations, which must be open-ended. I assure the House we will table many substantial amendments, not vexatious or frivolous amendments as stated in regard to some of the requests under the FOI legislation, to protect what is a fundamental right and freedom.

Senators:  Hear, hear.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  I would go further and ask whether the Bill is constitutional. Can one take away a right that has already been established in law by legislation when there is no compelling reason for doing so? It would be interesting to see if the provisions of this repealing legislation will be challenged by somebody outside the precincts of this House—

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  Deputy Michael Ring, perhaps.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  —in order to check its constitutionality.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Senator Higgins wants to change every Bill.

An Leas-Chathaoirleach:  Senator Higgins, without interruption.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  I would imagine in the case of Deputy Ring there will be many bodies willing to throw in their few euro to build up a fund to challenge this sinister legislation.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Sinister?

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  One has to ask what the Government is up to. What is the reason for all the urgency and panic? What is the Government afraid of that it publishes draconian legislation at such short notice and proposes to bulldoze it through in such an unseemly fashion?

As I said when tabling an amendment to the Order of Business, this legislation is sinister, subversive and dangerous and should never have been published. It reeks of suspicion and is shrouded in secrecy. It is the work of a select group of civil servants working behind closed doors who consulted with nobody. Why was the Ombudsman and information commissioner, Mr. [1141]Kevin Murphy, not consulted about this legislation? This person is a former civil servant and in his present capacity has statutory responsibility for ensuring that the terms of reference of the Freedom of Information Act 1997 are implemented. He has hands-on knowledge and experience of the workings of the Freedom of Information Act 1997, yet he was not consulted or asked for his views by his former Civil Service colleagues. Realising that he would not be afforded an opportunity to put forward his views, he contacted the Government and the committee with a view to having his views heard, only to be ignored and to get the thumbs down. Why is it that an expert in such a pivotal position and obviously with helpful and constructive insights in relation to this legislation was disregarded? Surely the proper and responsible approach to drafting this legislation should have been to have as widespread a dialogue and consultation process with as broad a spectrum of interested parties as possible.

Any far-reaching changes to the 1997 Act, which is acknowledged as the key instrument in achieving long overdue and long sought after openness and transparency, should not even have been contemplated without a process involving all the political parties, the media and the National Union of Journalists. If one considers the statistics, journalists have not abused their right of access to information under the 1997 Act and have done the State a considerable service by establishing certain information, which has led to fairly wide-ranging changes. They have also put high profile issues that needed to be exposed into the public domain.

Why was the Irish Council for Civil Liberties not consulted about the legislation? A raft of interested, legitimate organisations, which have a right to have their views heard, were not consulted. Nobody was consulted. It is hard to expect these interested parties, including ourselves, to be consulted when the Information Commissioner – a former high-ranking civil servant – who is the final arbiter in deciding whether a claim for access to information is legitimate, was not even consulted. There should have been a process of dialogue and consultation. This should have happened within the precincts of the Oireachtas Joint Committee on Finance and the Public Service, but there was no consultation. What we have instead is a dangerous measure which is sinister, anti-information and anti-people in nature. It is a measure designed blatantly and exclusively to protect the internal secret machinations of the Civil Service and its temporary political masters.

In its promotion of the legislation, the Government is trampling on people's right to information. It is attempting to row back rights already established under the 1997 Act, which could give rise to constitutional issues. It is a blunt denial of people's entitlement to get at the truth. The Bill is littered with the fingerprints of collective Civil Service paranoia and reflects the Civil Service mentality which never liked its [1142]actions or modus operandi being publicly questioned.

At a time when the thrust of Government and Parliament should be towards far greater openness, transparency, access, accountability and inclusiveness in order to give people a greater sense of trust and insight, this legislation goes in the oppose direction. If passed, it will further heighten the sense of exclusion among the public. It will fuel cynicism and increase people's suspicion in relation to the nature of the process of Government. People are already sufficiently alienated from politics and politicians. For politicians to introduce this legislation and dress it up as being in the public interest is one sop the public will not, under any circumstances, swallow.

It is this public suspicion, mistrust and cynicism of politics and politicians which has led to such a dramatic fall in the number of people who vote in elections. If this repeal of the right of the public to know how Government decisions are arrived at is passed – there is a determination on the part of the Government that, irrespective of any public disdain or revulsion or the legitimate expressions of the Opposition, the measure will go through – we will damage an already badly fractured democratic process.

The restrictive nature of these new proposals is serious. They represent a crude assault on the spirit of openness and transparency that underpinned the original legislation. The Bill will create particular classes of information which will be automatically withheld from the Opposition parties, the media, legitimate interested or concerned organisations and members of the public. For example, briefing notes from civil servants to Ministers, including those relating to replies to parliamentary questions, will be restricted. I am at a loss to know why a briefing note in relation to a parliamentary question to a Minister should be restricted.

The Leader of the House spent most of her parliamentary life in Cabinet whereas I sat at the Cabinet table for a mere two and half years. From 1995 to 1997, I answered questions when I was for a brief period Minister of State at the Department of Finance with responsibility for the Office of Public Works. I also answered parliamentary questions in my capacity as Minister of State at the Department of the Taoiseach, Government Chief Whip and Minister of State at the Department of Defence. On occasion I substituted for other Ministers of State who were unable to be present during Question Time. I can genuinely say that I do not remember any occasion on which I answered a parliamentary question when there was reason for the briefing notes accompanying the question to be withheld from public access. I imagine the Leader of the House could probably testify that the same applied to her. The briefing notes with which one is presented essentially provide information on how the content of the question should be relayed. There is nothing sinister about such notes and [1143]why these should be included as part of the new restrictions is beyond me.

As somebody who sat at Cabinet and dealt with Government memoranda, etc., I see no valid reason that the period of release in respect of Government memoranda should be extended from five to ten years. The making available of such advice is good. It gives people the opportunity to see how the process of forming legislation comes about. It lets people into the process, etc., and is an enlightening exercise from the point of view of establishing how the dialogue at Cabinet meetings develops and how consensus is eventually achieved.

What the Government and the Civil Service, in particular, propose to do is to vest themselves with new restrictive powers. If this Bill passes into law, the Secretary General of a Department could decide to withhold requested information if he or she decides that – this is a jewel or a peach of an expression – the “deliberative process” surrounding the issue is ongoing. The use of the term “deliberative process” is intriguing. It is so wide in its possible interpretation that one must arrive at the conclusion that the only reason it is included is as a deliberate barrier to block access to information. In other words, those in authority will be able to claim that information cannot be released because the deliberative process – I presume this means that people will still be raking over the issue in their minds or talking to others about it – is ongoing. This is deliberately being included as an excuse or a blocking instrument to stop information which the Civil Service or the Government do not want to get into the public domain. On one hand, the Bill will curtail the role of the statutorily independent information officer while, on the other, it will grant quite extraordinary additional powers to senior civil servants.

The main reason for the rush to get this legislation through – and what has triggered the urgency and panic on the part of the Government and the public service – is the date of 21 April 2003. Under the 1997 legislation, Cabinet memoranda and documents dating from 21 April 1998 are due for release. The attempt to extend the period raises the question of whether information contained in these Government memoranda and papers is so damaging or explosive that it must be locked up and kept away from public scrutiny for another five years.

Section 12 of the Bill, which seeks to revoke the five year provision and replace it with a ten year restriction, will be opposed tooth and nail by this side of the House. On Committee Stage we will bring forward a series of amendment to ensure this component of the Bill is retained in the legislation. We will argue the case for doing so comprehensively, cogently and convincingly. There is no excuse for extending the period from five to ten years.

I listened over the weekend to people trying to justify this on various political programmes. What the Minister for Justice, Equality and Law [1144]Reform, Deputy McDowell, said on “Saturday View” has already been quoted in the House. He did not bring forward a single valid argument for this extension. I listened to the Tánaiste on Today FM on Sunday morning and, again, no valid argument was forthcoming to justify this. They advanced not a single syllable of sense in relation to this measure.

The argument is that if documents can be released after five years, the Government to which they relate might still be in office. That is no defence. The maximum constitutional term of office for a Government is five years from the date of the formation of that Government and no Government in the history of the State, not even the last Government which ran to within six weeks of its full term of office, has lasted the full 1,825 days. There is, therefore, no basis for saying documents could be revealed while a Government was still in office. Even if Cabinet papers were released within the term of office of a Government, what great fissures, ruptures or earthquakes would be caused by making Cabinet memoranda public while a Government was still in office? There are differences of opinion between Cabinet members, just as there are between people in other organisations.

Mr. Cummins: Information on Maurice Cummins  Zoom on Maurice Cummins  Not any more.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  What would be wrong with having these revealed? Is it not the most natural thing in the world that in any organisation, Government or otherwise, individuals will hold opinions that differ, often widely? Is it not in the public interest to enable people to see the different perspectives from which individual members of Cabinet come and to have such differences ultimately resolved in a process known as collective Cabinet responsibility?

I listened to the argument made in the Dáil by the Taoiseach last week and his assertion that the five year rule was impractical and dangerous since it would lead to the release of the Belfast Agreement negotiating papers. Nothing could be further from the truth. Has the Taoiseach been wrongly briefed by civil servants or does he not realise the extent of the current legislation, which makes it clear that the 1997 Act contains a specific exclusion in relation to the Good Friday Agreement and the negotiations leading up to it? This is simply a spin and nothing more.

This is a bad day's work for Parliament. It is a cynical and hypocritical move by the Government, a smash and grab raid on a key pillar of accountability and transparency of Government. The Government is saying the potential embarrassment to it is more important than people's right to information, that papers held by public bodies belong to the bodies and Ministers, not to the people, and that the people will have to pay to see them. This will be yet another stealth tax. The Government is saying Ministers do not have the courage to tell their Cabinet colleagues in writing what they believe. The refusal of the [1145]Government to engage in any meaningful consultation with interested parties before the Bill was drafted was cynical, wrong and hypocritical.

The ultimate insult in the Bill is the Government's proposal that it be ten years before Cabinet papers are released. That is being very conveniently used as a key argument when it is no argument. By ramming this measure through the Oireachtas, the Government is being totally and grossly irresponsible. It is showing contempt for Parliament but particularly for the public which has an established right to have access to information. It is recognised that the legislation introduced in 1997 was far reaching. It was an example to other jurisdictions and has been held up by other jurisdictions as an example of what could be achieved in allowing people responsible access to information. By rowing back on this, the Government is doing irreparable damage. I again implore the Leader of the House not to go ahead next week until we have had an adequate opportunity to fill in the gaps and voids in terms of the deliberative dialogue that should have taken place with interested parties outside the House. I ask her to postpone Committee Stage until such time as we have had an opportunity to debate the matter with interested parties and hear the views of the general public and then, in no circumstances whatsoever, to attempt a restrictive debate or a guillotine on Committee Stage. That would be the ultimate injustice and insult.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  I wish to share my time with the Leader of the House. I would be grateful if you could inform me when my 15 minutes are up.

An Leas-Chathaoirleach:  Is that agreed? Agreed.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  Senator Higgins can never be accused of understating his case. His speech went out with a bang. I welcomed the Minister, and now the Minister of State, to the House. This is an important Bill and it is a compliment to the House, not an insult, that it is being taken soon after publication. I do not know how often the case is made here that we should debate matters immediately, if not the day before yesterday. We are debating something at a time when it is highly topical and being discussed in the newspapers. That is a compliment to the Seanad, not an insult.

I do not accept the merit of the arguments about alleged lack of consultation. Political parties are consulted in Parliament. They are being consulted here today and will be consulted in committee and the Dáil. Sometimes on social partnership, parties opposite complain that Government spends too much energy consulting other parties, the social partners and so on outside the House rather than coming to Parliament. This is a case where we are coming to Parliament and Parliament is giving its view. Interested parties will convey their views to us, as is perfectly appropriate in a parliamentary process. I am sure many of us have had calls from representatives of [1146]the media, for example. It is very clear from the Minister's speech that there has been constant consultation and discussion with interested parties at conferences and with the Information Commissioner. It is open to the Information Commissioner to write a letter or speak to the Minister for Finance at any time that he chooses during the course of this Bill and make any points he wishes to make. I am very much in favour of freedom of information.

If we cast our minds back about 30 years, no records were available. History stopped in December 1921. At that time there was a 50 year rule in place, which, following the introduction of the archives legislation, was replaced with a 30 year rule.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Some people burnt the archives down.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  Next, there was a move to freedom of information. I recall that, on the day he was elected leader of Fianna Fáil, Mr. Albert Reynolds used a phrase about letting in the light. As an adviser to Mr. Reynolds, I recall encouraging him to make a commitment to freedom of information legislation. He did so and it was subsequently incorporated in the programme for Government of the Fianna Fáil-Labour Party Administration. The original legislation was quite long and complex and, as a result, was in gestation for some years. However, we got there and a progressive Bill was the result. As the Minister pointed out, its range of applications has been considerably extended since it came into operation in April 1998.

The process was experimental in the sense that we were entering new territory. Freedom of information had not been part of our administrative system, which tended to be somewhat secretive and authoritarian. I am glad there has been a move to a more open culture, but it is inevitable that legislation of this kind, particularly in terms of its operation, needs to be reviewed.

I am unconvinced by the argument that the Bill is being introduced for essentially political reasons. I do not see any political advantage for the Government in introducing the legislation because, to put it mildly, it is not particularly popular. In the past five years of the operation of legislation, it does not appear that freedom of information did any harm to the Government. There was, of course, occasional embarrassment and a nuisance factor involved. However, the political argument is not valid as a motive for this legislation or as a justification for it.

The sole justification for the Bill's introduction is whether it contributes to better Government, which is different from political interests. Better Government includes the keeping of better records. It is unfortunate that the advent of the freedom of information legislation substantially altered the habits of civil servants. I might have taken – as perhaps the Minister did in the past – the Duke of Wellington's attitude, “Publish [1147]and be damned”. However, not many people adopt this attitude. Written advice to Government and to Ministers was inhibited, as was the way meetings were recorded, because there was consciousness of the operation of freedom of information. This may be regrettable, but it has happened.

Oral advice is not generally as systematic as written advice and it cannot be reviewed afterwards. One cannot take oral advice home and people's memories are fallible. Written advice needs to be set out in a logical, reasoned form and it can be reviewed. Some of that has fallen by the wayside under the operation of freedom of information legislation.

I agree with Senator Higgins that debate before decision-making is absolutely essential. There is nothing scandalous about the Minister for Finance writing about or challenging proposals from the Ministers for Health and Children or Transport. Healthy debate before decision-making is exactly how Government should operate.

I have been a historian in my spare time. I am concerned, as are some members of Government, that the historical record will be impaired by people not writing as frankly as they once did. I know of one committee which, after the arrival of freedom of information, kept its minutes only as decisions taken instead of, as it had done previously, recording debates.

Northern Ireland is excluded from the operation of the Bill. As a result, in 30 years there will be a full, comprehensive record for historians of what happened and why which will perhaps not be available in respect of other areas of Government. I see that Senator O'Meara does not agree.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  The Bill is not for historians.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  I have been there and have observed this. I know what I am talking about. The history of a country is as important to it as the contemporary record. I accept that it is the fashion to say that only newspapers and television matter, but I do not agree; considered history also matters.

I do not like the aspersions cast in the House on civil servants. In that context, we may yet hear more about secret machinations, paranoia, etc. Civil servants are also patriots and Members would do well to remember that. The Bill has been drawn up by distinguished civil servants.

The only person I have met resembling a character from “Yes, Minister” is somebody who either is or was the head of a university. I will not be more specific than that. I recall a Cabinet Secretary whom I affectionately sometimes thought of as Polonius, but not as Sir Humphrey. I also remember a civil servant telling me when our esteemed leader – I am not referring to Senator O'Rourke – was absent, that politics was too important for politicians. However, the difference between Sir Humphrey and the senior civil servants behind this Bill is that the former [1148]wanted to stop things being done. In my experience, most civil servants want to see things done and get enormous satisfaction from this. The vast majority of senior civil servants should not be portrayed as Sir Humphreys, or the female equivalent, because they are no such thing.

The operation of freedom of information has imposed a considerable administrative burden and there may be a justification for some charge. In the case of the unemployed, pensioners, the unwaged and students – particularly students of journalism – a reduced rate should be considered. It is a pity that the legislation has been used for relatively trivial purposes and I refer to a number of ongoing debates in this regard. If one wants to travel by air in luxury and comfort, one flies first class on a commercial plane and not by Government jet. Some ministerial offices, and a number in Leinster House, are as spartan and austere as could be imagined. Most of them do not even have sofas.

I have great sympathy with the legal case Senator Higgins and Deputy Howlin are taking. That goes to show that they need some secrecy and confidentiality to get their job done, which is true of all organisations. It is easy to say there should be total freedom of information with regard to the Government, but not to let it apply to anyone else. I would love to see some of the internal minutes of newspapers when, for example, a proprietor rings an editor about a particular matter. However, despite the fact that newspapers are in the public sphere, nobody gets to see these.

We must be realistic and accept that a certain degree of confidentiality is needed to conduct business efficiently. The main change in the Bill is the move from five years to ten years with regard to Government communications. I hope that if Fianna Fáil is part of the next Government, it will not introduce a Bill in the next Dáil to extend it to 15 years. The ten year provision should be adhered to and no further extension should be contemplated.

There is a case to be made for the Bill in terms of efficient and good Government. It should not be dismissed.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  The designation of the term “high level group” to those charged with responsibility for reviewing the Freedom of Information Act is unfortunate. Those involved are eminent people and I agree with Senator Mansergh's description of them as patriots. They work all hours for the good of the country –pro patria. The term “high level group” immediately raises hackles and suggests elitism. Those involved would not consider themselves to be part of such a group and it would be more readily understood if they were referred to as a group of Secretaries General. I know the five of them. They are eminent, proper people and full of probity. They are headed by the Secretary General in the Department of the Taoiseach.

[1149]In friendship, I must remind Senator Higgins that while he was a very good Minister of State at the Department of Defence and Chief Whip in the rainbow coalition Government, he was not in Government when the Freedom of Information Act was implemented, commencing in April 1998. The Senator spoke blithely about some aspects of the Bill. He may think differently when he returns to Government. I hope that is his aspiration.

The number of groupings or bodies covered by the Act have increased from 67 to 370, which is proper. The range and extent of those included indicates that nothing has been stifled. As Minister for Public Enterprise, I introduced a number of Bills which, when enacted, were to brought under the terms of the Act. Doubtless other Ministers introduced legislation subject to similar provisions.

The requirement that Secretaries General must certify the release of information is the proper way to proceed. The former Minister of State at the Department of Finance, Eithne Fitzgerald, worked long and hard on the original Bill, as did those advising her. The Act provides for a range of fees for the recovery of information, but these have not been implemented. Any fee paying system, such as water charges, should have an appeals and waiver system and in this regard I strongly advocate that the Bill provide considerable scope for waivers in respect of those seeking information who may not be able to afford the fees, such as students engaged in research or those seeking personal records.

The Bill also proposes to remove the restriction on appeals to the Supreme Court of decisions by the High Court. The Act allows that appeals may only be made as far as the High Court. It is easy to elaborate on what is wrong in the Bill, but this approach sometimes overlooks the positive aspects. Allowing for appeals from the High Court to the Supreme Court will be a very useful provision.

There is no panic about the introduction of the Bill. Every week I am subjected to pressure by Senators to introduce legislation. In proper pursuit of his duties, Senator Ryan must have asked me on at least 20 occasions when this Bill would be published and if it would be initiated in this House.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  He did not.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  If I did not introduce legislation the House would have no business to conduct. Our main purpose is to deal with legislation.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  Our problem is with the way the Leader has dealt with this Bill.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  The Bill should be given six weeks of consideration.

An Leas-Chathaoirleach:  Senator O'Rourke, without interruption.

[1150]Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Members on the other side of the House complain about the lack of legislation, yet when I introduce a Bill they protest that they need time to consult. The consultation process on this Bill took place last weekend and I was grateful for it. I do not know why Members want to postpone Committee Stage for more than a week. It could not take them that long to consult. They must have very busy lives that they cannot consult widely within a week, be it by telephone or in meetings.

The Fine Gael Party members appear to be set on challenging the constitutionality of every Bill. They are probably fired up by Deputy Ring. He has that capacity. He is full of fire.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  We know.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  We could do with him in this House. It is interesting to see how he does not pause between sentences. He is a wonderful practitioner of the art of speaking for 40 sentences without an intake of breath.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  He would get a second wind in this House.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  It was reported to me that he told somebody the Senators from the Mayo constituency may stay here. He does not want them returning to the open warfare of constituency politics.

I welcome this debate. The constitutionality of the Bill may be challenged – that is up to any citizen. The fee structure should be examined and there should be much greater consideration of amelioration for those who cannot afford to pay.

Debate adjourned.


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