Tuesday, 4 March 2003
Seanad Eireann Debate
The debate is important for the reasons I outlined earlier. It is amazing that in detailing their opposition, which they are entitled to do, Members on the other side of the House never mentioned the favourable elements that will be brought about by these amendments. I outlined these earlier and there is no point in rehearsing them.
A strong clause makes provision for moving from the High Court to the Supreme Court on appeal. I do not know who spancelled the former Minister of State, Ms Eithne Fitzgerald, on the previous occasion, but such a provision is not included in the existing Act. In regard to charging for information, I urge the Minister to examine the possibility of introducing a substantial waiver system because every payment to a State body can be the subject of a strong appeal. That must be done and I hope it will be because the system will otherwise too arbitrary.
There is a clear need for a tighter journalistic approach to freedom of information. I do not mind detailing with whom I had lunch or how many rows I had with the Minister for Finance in correspondence. The Department of Finance has a job to do which is, namely, to say “No” to everybody. The Department of Finance could not function if it did not adopt rigorous scrutiny of some of the expansive ideas which the heads of various Government Departments, as is their right, put forward. However, I thought it hilarious that, just before I left Government, there was a request under the Freedom of Information Act in connection with a luncheon I gave for the press. The person who requested the information was at the lunch and had a very good time.
One does not get to do anything that does not come under the provisions of the Freedom of Information Act and rightly so, particularly in light of the things that are happening. I felt like saying exactly what that person had to eat and imbibe and what a good time was had by all. However, I thought it absurd that this was the kind of information being requested. That is not to make a case against the Freedom of Information Act, rather it is to make the case for a stricter journalistic approach to the Act. I am sure journalists would see fit and would wish to adopt such an approach. I am not making a case for draconian measures in regard to what are only minor irritants, but the reporting of them is sometimes quite funny.
I recall some correspondence between the Minister for Finance, Deputy McCreevy, and me in which he wrote something and I replied in equally strong terms because I never take such letters as a put-down, but as part of an invigorating debate. However, what was reported was what he said to me and what I said to him. It was reported in a kind of breathless way that suggested we were about to stab one another, which was nonsense. Senator Higgins made that case this morning. We are not all clones of Dolly the sheep, bobbing our heads together and having the same thoughts and adopting the same points of view on everything. That would be patent nonsense.
Mr. Ross: I am instinctively opposed to the Bill, as are all people who are in Opposition or independent of the Government. There are good reasons for that. I do not oppose it with any great hysterical fervour because I understand perfectly well from my experience in this House how politicians behave when they are in Government. I understand even better how civil servants, who are permanently in Government, behave.
The Freedom of Information Act has worked in a fairly strange way. There are those who would say it has not worked. The moment it was introduced, ways were found to circumvent it. Ministers, civil servants and other people who felt they would be subject to this Act immediately decided not to put sensitive information in print. That is a sensible and realistic response, if one does not like being open. The experience of Governments here, despite what the Opposition said today, is that nobody really likes people knowing any more than they must. That is a cultural problem which is not restricted to Ireland. It is an international problem that governments, the moment they enter office, do not want to release any more information than they are obliged to by law and those in opposition always want to press for it to happen. That is the situation with which we are faced.
We should examine this so-called high level committee – I know what the Leader said and I agree with her in that regard – with a certain amount of scepticism. A Government that does not like the way the Freedom of Information Act is being operated because too much awkward or embarrassing information is being released could choose no more suitable a group to help it suppress such information than one comprised of civil servants. That is not to reflect on the work of civil servants in their jobs, as a rule.
The Civil Service, like its counterparts abroad, is an extremely secretive organisation. It has standards which it believes it should uphold. One of those standards is that information is power, that it is valuable and that it should not be released to anybody unless it has to be. That is the culture of the Irish Civil Service. It is the culture of nearly all civil services. If a Government wants to get a group of people to come to a predestined conclusion on this issue, what it does is pick a group of civil servants and ask them what they think. It is inevitable that the people selected, great as they are at their jobs, will come to the conclusion that the information on which they were entrusted to write a report should, as far as possible, be protected.
I wish to consider this matter in a slightly different way. I want to challenge the culture of secrecy in the Civil Service and the protective attitude politicians have toward information and ask another question. This Bill essentially defends Cabinet secrecy and the retention thereof. I would like a camera to be permanently placed in the Cabinet room and a tape recorder permanently placed on the Cabinet table. With very few subjects excluded, I cannot see why it should not happen. One reason it should happen is that, in any event, everybody will know tomorrow what happened at Cabinet today. The problem is that the spin tends to distort what really happened. Journalists and politicians know which side most Ministers are on with regard to almost all arguments because Cabinets leak information about every issue. Ministers constantly leak information detrimental to each other and others tell stories, which may or may not be true, under the veil of Cabinet secrecy.
Mr. Ross: It would be far better if we knew openly where Cabinet Ministers stood on every issue. They have nothing of which to be ashamed. No realistic citizen expects that 15 people will agree on something and come up with a unanimous verdict. Every intelligent person would understand if they saw a Cabinet openly disagree – as it does on every issue – and then come together, put through a measure and support it. That is the basis of Cabinet solidarity and it is the nature of Government.
There is a charade at present that the Cabinet agrees something with nobody else knowing what has happened, but it all appears in the newspapers the next day in any event. Under the Freedom of Information Act, one is not allowed to obtain information on the measures going through. To do so, it is necessary to get someone to leak the information from his or her point of view, which provides a distorted view of the matter. That is unsatisfactory and I cannot understand why all information on controversial public issues should not be in the public domain. I suppose we should exclude war, security, violence, pornography—
Mr. Ross: —-and issues which are of such vital national importance and sensitivity that it is necessary to draw a line with regard to them. There should no longer be any mystique about what happens at Cabinet and politicians should not be ashamed of their views.
An example of the culture of secrecy in our society is the extraordinary aura that still attaches to judges. Oireachtas Members must openly declare their interests, which is a bit awkward, inconvenient and something we would rather not do. However, judges, for some reason, are shrouded in secrecy and do not have to declare their interests – despite having vast interests – because they are civil servants. Top civil servants do not come under the same open rules as do Members.
Mr. Ross: It is different. For example, if a person is high up in a semi-State body, he or she does not have to declare his or her interests to the public. The interests are declared to another group and that information is never made public. Why are such people not subject to the same rules on openness as Members of the Oireachtas? There should be consistency on that matter. The Civil Service is not subject to the same accountability and does not want to be because it is not used to it and does not like it. Neither do Oireachtas Members, but it would be far easier for us if we, and the Cabinet, had to account for everything openly and without any suppression of information.
I find sinister and subjective the idea of establishing a committee to decide what is relevant. The committee referred to in the Bill will decide what information is designated as being there to support Government deliberations. That is utterly subjective. It will give power to this group to decide what comes under this legislation and what does not. This is not defined in the Bill and it may be found that it becomes a wide umbrella in the years to come. This suppression of information could easily drift into areas which were not intended by those who framed the Bill. It is not a tight Bill, it is extremely subjective.
The issue of costs reflects the thought processes of those who framed the Bill and those who wanted to see it appear in this fashion. It is full of the attitude that people should be prevented from accessing information and that obstacles should be put in their way. Costs are an enormous obstruction. Those who framed the Bill have taken an extreme example as evidence to support their case, namely, that of one person who ridiculously cost the State €127,000 by pursuing a large number of matters, some of them frivolous. An exception of that sort makes bad law, and to use it to support the argument in favour of the Bill is not honest.
There is a much more serious general principle at issue. I can see it spreading further and further into public life and it is a particularly dangerous one. The House should not be frightened to let people know where Members stand on various issues. The Cabinet or anyone else should not be afraid to do so either.
Mr. Norris: I am grateful to Senator Ross for sharing time. Unlike him, I do not have an instinctively negative reaction to the Bill. I understand that, for Cabinet and Government to work efficiently, certain measures must be taken. One must be practical about this and it is unrealistic, particularly in the context of Governments which remain in office for four or five years, to have confidential Cabinet material released after five years. It was previously released after 30 years and I think ten years is reasonable.
There has been an amount of huffing, puffing and posturing about this. I was curious to hear Deputy Burton on radio dealing with this matter as Labour Party spokesperson. I would have imagined that, as it is a Seanad Bill—
Mr. Norris: I see. I did not mean any personal denigration of Senator O'Meara, for whom I have great admiration. I had expected that more prominence would have been given to the Seanad. I hope that the Labour Party will table its Bill as an amendment to this because we will then have the opportunity to consider the two alternatives and vote on them.
There is an argument that five years is not adequate and that ten years is more practical. As a tutor in Trinity College, I would tell students to let it all out and to make fools of themselves because university is the place to do so. If there are not rules for Cabinet to allow open, honest and abrasive discussion without it being leaked – where the emphasis would be put on the disagreement rather than the real subject – it makes Government more difficult. I understand the Minister's position on this. We now have access to the record of telephone calls between Mr. Lynch and Mr. Heath at the time of Bloody Sunday. If the content of those phone calls had been made available within five years, it would have had an inflammatory effect on the situation in Northern Ireland. We must be conscious of this aspect of the matter.
The language the Minister used was, at times, vague. He said that specific protection for such records was recognised as being necessary by the high level group, but he does not mention any argument on the matter. Why was this recognised? He just makes a statement on it, which is dangerous. The Minister went on to say that “the Secretary General to the Government must certify that the committee concerned meets the relevant requirements”. It is not independent, it is too close to the Government. Independence is required in this instance.
Another case involved a request for access to the diaries of Ministers and civil servants. Thousands of pages of documentation were produced at a cost of over €10,000, yet the person who inquired objected to being asked to contribute to €600. There is a lack of proportion here.
I am a member of the National Union of Journalists and am proud to have been accepted as such. However, there is a strong obligation on members of this honourable profession to treat the information they get seriously, to examine it properly and to ensure that it does not lead to a further series of misunderstandings. For example, reporters are intrigued with Members' allowances. They are apparently blithely unaware that those who are on the ball claim their allowances at a date when they cannot be used for electoral purposes. This means that when any given request for information is made, one Member may have claimed allowances totalling €20,000 because of travel undertaken on behalf of the country, while another may not have made a claim because he or she was too cute to draw an allowance immediately before the FOI request. No account is taken of this. In certain instances, journalists do not care about the context of the information they obtain as long as they secure a sensational headline. That is regrettable.
I have a number of reservations about the Bill. The proposal to charge additional fees for applications and appeals is a stumbling block. The House debated similar charges in respect of planning appeals and applications and we on this side argued against them. I take the same view on this proposal.
I also question the proposal to increase restrictions on individuals accessing their personal records and the granting of greater flexibility to public bodies in deciding to refuse applications if they consider them to be ridiculous or vexatious, even when there is no definition of these terms. I was contacted by a woman who, on two occasions, had resort to this kind of legislation. Her child became ill and did not get better. She made an application under the Act and obtained the material she sought. She discovered the child had a serious kidney ailment which was being inappropriately treated. She got the treatment changed. That is an important and significant use of the Act.
In the second instance, a neighbour made malicious allegations that the woman in question had interfered with her son. This was a devastating accusation and she applied for all the information relating to it. She received some but not all of it and asked the health board to properly investigate the accusation. However, only two categories of finding were possible: first, that it could be confirmed; and, second, that it could not be confirmed. However, the woman wanted to be vindicated and to be told it was not true. She had the support of doctors and others in the case, but the health board would not respond in the manner requested. Eventually it stopped answering her communications. People have an absolute moral entitlement to this kind of information because it concerns them. Every citizen should have the opportunity to access it.
The period for deciding on cases continues to lengthen, which is a cause of concern. Where third parties must be consulted before information is released, the consultation period is being extended from nine to 11 weeks. The length of time in which the Information Commissioner has to determine appeals is to increase from three to four months. It could thus take nine months to get a record or a decision on a record processed if it is subject to appeal.
It is extraordinary that the review group, which consisted of the five Sir Humphreys, did not bother to consult the Information Commissioner. A briefing I have received from the NUJ indicates the same attitude. When the Cabinet decided to publish the Bill, the NUJ immediately requested a meeting with the Taoiseach, the Tánaiste and Minister for Enterprise, Trade and Employment or the Minister of State at the Department of Finance, but no reply was given. That is astonishing when one considers that 25% of requests for information under the Act are made by those involved in the profession of journalism. Openness, transparency, accountability and consultation do not appear to have existed in the run-up to the production of the Bill, which is worrying.
The widening of the reasons for refusal to grant information is also a cause of concern. The provision that information would be refused if a request causes difficulties within a Department is to be narrowed to within a unit. The definitions also become increasingly vague.
The composite manual is not to be published in printed form. This was a useful tool for journalists. Technophobes like me will not be able to avail of electronic publication. It might as well be in Chinese hieroglyphs.
There will be increasing restrictions of access to Government records where heads of public bodies must now automatically refuse release of information prepared for Government. The Act provides some discretion in this area and a refusal was usually made for publicly stated reasons.
Section 2 contains a number of good provisions. There is a clarification of the position of copies of records where it is taken that, for legal purposes, a photocopy has the same date of origin as the original. That is sensible. The position of factual information is also clarified, as are a number of other aspects.
Section 3 stipulates that the heads of public bodies will be exempted from the provisions of section 4 of the principal Act, whereby they must cause notice of a delegation of authority on the making of decisions on freedom of information to be published in Iris Oifigiúil. As a result, the public will have no way of knowing who makes such decisions. That is a matter of concern because we should know who has responsibility in this area.
Section 4 amends section 6 of the Act, which deals with the right of access to records. It proposes to substitute the word “contain” for the words “relate to”. This further weakens the position of the individual or the professional journalist because they will be much more restricted in terms of their ability to access their personal files. They will only be allowed access files subject to 11 exemptions, as opposed to the nine provided for under the Act. Excluded from this will be records about them but which do not contain personal information as defined in the Act. This further weakens the position of the person requesting information. The new categories cover personal records, commercially sensitive information and confidential information. The difficulty is that it is not clear what is meant by these categories. It leads to a further possibility for obfuscation.
The most serious cause of concern for a working journalist is section 7. Under the Act, a request can refused if the fee for the current request had not been paid. The Bill provides that if there is a backlog of non-payment of fees the, request may be refused. Concern has been expressed to me about this matter, which the Minister of State would be well advised to note. If, for example, a journalist from the Independent group, who writes for the Sunday Independent, applies for information under the Act, but finds that a colleague from another newspaper in the group, from the Evening Herald– to which I contribute the occasional morsel – had not paid a previous bill, he would not be able to obtain the information. That is wrong. Accounts should be individualised. Responsible, professional journalists should not be excluded from getting information because a colleague defaulted on the payment of a fee.
My concerns are specific, but my approach is balanced. The current five year provision on Cabinet papers is impractical and I understand why it is being extended to ten years. I also understand the need for confidentiality because, ultimately, the Government must continue to work and must be permitted to do so. It must not be trammelled by mischievous interventions, which could happen. It is important that journalists behave responsibly in this.
The Minister has made a good case for suggesting that some people have made vexatious use of the Act. The example he gave was of an individual who made 466 requests and was then responsible for 101 internal review applications and 35 appeals to the Office of the Information Commission. This is making a professional, full-time career out of requesting information, which seems to be a little bit unbalanced. Another person cost the taxpayer over £100,000.
Mr. Norris: There is a lack of balance and the Government needs to convince legislators that there is a sense of proportion in the Bill. I deliberately emphasise that I have not shown myself to be totally antagonistic, but I understand the practical working reasons. From this position of sympathy with that of the Government, I ask that it examine closely and address the practical issues I have raised in terms of the Bill's impact.
The Government has not done a particularly good job in respect of the method of introduction of the Bill. Its arrival in the House was precipitant. I am not impugning the personnel at all, but questions must be asked about the fact that five wise persons were charged with the responsibility of making recommendations and that there was no public consultation and that the very people represented by the National Union of Journalists, which is the largest block of requesters, were actually refused the opportunity to discuss this matter with the responsible Ministers. Most significantly, the Information Commissioner was not involved. These facts demonstrate an astonishing run-up to the production of the Bill. However, having said that, I understand the necessity, in terms of good governance, to control access to information.
As a long-suffering Member of this House, I note that there is much nonsense in respect of ethics in public office, etc. I am blistered from filling out forms exposing my financial inadequacies to the people. I see no reason why they should be entitled to such information and I assure the House that anybody like me who lists a few ould shares on a form is the last person who will defraud anybody. Who is that little man with the glasses who used to be Government press secretary?
Mr. Norris: Mr. Dunlop. Nobody is so idiotic to write down, “I got £150,000 from Mr. Dunlop”. It is a complete waste of time and a cosmetic exercise intended to fool people into the notion that there is absolute accountability and transparency. It is irritating nonsense. The sooner we get rid of the pretentiousness associated with standards and address real standards in public life, instead of tricking away at the borders and creating a cosmetic impression that we are all whiter than the driven snow, the better.
I give a guarded welcome to the Bill. I appeal to the Minister, even at this stage, to have some discussion with professional bodies such as the National Union of Journalists. I am a member of that body and I also have some recommendations for it. In full knowledge of the presence in the House of its very distinguished secretary, I say that it is also incumbent upon journalists to make serious and responsible use of the information to which they have been entitled by an Act of the Oireachtas. Access to information is not just a right, but a privilege, particularly when it is access to the personal financial records, for example, of individuals, be they in public life or not. There is an absolute responsibility on the part of journalists to treat this matter with seriousness and decorum.
Mr. Minihan: I welcome the opportunity to debate the Bill. Unlike some debates on legislation in the House, the tone of this debate is often driven in advance by media articles. As Members, we have a primary responsibility to debate issues that come before us and to weigh them up, seek opinions and give our own, rather than echo the opinions of others.
It is appropriate that the Bill is before the Seanad given that the Freedom of Information Act began its life here. I fully endorse the principle of freedom of information as an integral part of transparency in public and political life and in the administration of the affairs of the country. In saying that, one must balance effective governance with inability to provide effective government. The Minister has outlined in his speech how the Freedom of Information Act has been used to date. He listed the number of requests, the type of requests and how the Act has been extended continually to other public bodies.
The proposed amendments are balanced and necessary in the interest of good and effective government. Listening to the Opposition parties, it is quite clear that they have forgotten what government is and how it works. That is understandable given their long absence from office.
Mr. Minihan: As I was saying, the controversy which has surrounded this Bill in recent days has been generated by the only credible opposition, the media, to suit media ends. Their political puppets in Fine Gael and the Labour Party march to the beat of a media drum.
Mr. Minihan: The media are the real opposition and set the tone. On the Order of Business Fine Gael referred to my party, the Progressive Democrats, as poodles. This old and tired soundbite masks a plea by Fine Gael to the Progressive Democrats to continue to act as the de facto Opposition. I am sorry to remind Fine Gael that we are the junior party in the Government elected by the people.
Mr. B. Hayes: On a point of order, while I am always interested in hearing Senator Minihan's views, particularly when he is not in government, it is long-standing practice to circulate to the House the press office prepared scripts from which Members read.
Mr. Minihan: I have previously pointed out to the House that I make no apologies for preparing to debate. Senator Hayes should consider doing the same. His party presented us with a great spectacle when it admitted it had not prepared to discuss its Private Members' motion in the Dáil last week.
Mr. Minihan: Six Government Members in a row were required to speak to conclude the debate. According to its waffle this morning, Fine Gael advocates a big brother policy. The party wishes to see televised Cabinet debates and televised briefings by Secretaries General of Departments.
Mr. Minihan: —or does it want good governance? Confidentiality is integral to any Government decision-making process. We have seen bizarre circumstances in which decisions were made in advance of the conclusion of deliberations because Opposition Members had pre-empted Government policy-making.
Mr. Minihan: I hope the events of recent weeks recall to the Opposition the reality of its role. If that happened, we could, in time, witness the emergence of an effective Opposition in both Houses of the Oireachtas.
The Labour Party upbraided the Progressive Democrats this morning with a lovely form of rhetoric. It employed Finlayisms which are a new type of soundbite written by the de facto and unelected leader of the Labour Party.
Mr. Minihan: In an effort to reintroduce proper debate to the proceedings I welcome the increase from five to ten years in the length of time before Cabinet records can be released to the public. In this era, planning, researching and implementing most Government projects takes longer than five years and it is vital for policy success that deliberations are confidential and effective. We must not allow circumstances to develop in which decision making is not recorded on paper to pre-empt the release of information. We should not advocate a course of action which would result in policy being made through whispered briefings in corridors. I want records.
Mr. Minihan: Senators should ask themselves if businesses and groups could conduct their affairs effectively if the rules were different. Ten years of Cabinet confidentiality is acceptable and will permit Government to evaluate policy effectively for the good of citizens. Imposing a shorter time frame would hinder the decision making process. If Members examine the freedom of information legislation of other states, they will see that Ireland has one of the more liberal policies in this area.
Mr. Minihan: I agree with the Taoiseach who says 30 years is too long and five too short. The ten year period set out in the legislation is an acceptable one to wait for the release of papers referring to decisions made at Cabinet.
The Bill sets out to ensure communication between Ministers on matters relating to Government business is protected. Ministers must be allowed to exchange information and the Government must operate under the principle of permitting free expression of views, even if those views are opposed to each other. To do otherwise would frustrate collective decision making among Departments which would not be in the public interest. The early disclosure of sensitive information cannot be allowed to hinder or impede decision making by an effective Government.
Mr. Minihan: I am glad there are no proposed changes on a request for personal records. The legislation does not in any way impede the rights of the individual who continues to have free access to information on him or her. Its spirit is to tighten up areas that need improvement in order to create better legislation and better government. This is what legislators are elected to do. There is no public service aspect to media trawling of government in an effort to look for a story which serves no purpose other than to deflect from the real issues of the day.
I am satisfied that the Bill contains a number of amendments aimed at improving the operation of the Act. Questions are being asked about the deliberative process. The question of whether the process has ended is a difficult one. It serves no purpose for information on such deliberations to be released in advance of their conclusion. The introduction of a mechanism by which a Secretary General will have to certify the completion of the process is welcome. It will bring the process to a full and complete conclusion at which time all records will be released.
The Freedom of Information Act has been effective in allowing ordinary citizens access to documents pertaining to them held by public bodies. None of the amendments that the Bill proposes will change this fact. As proposed, they are no more than practical and sensible in allowing Government to carry out its work effectively while allowing liberal but reasonable access to records on its deliberations.
Ms O'Meara: It is nothing short of an abuse of power by the Government. It is an abuse of power because it attempts to roll back on a right given to the people by an elected Government and does so without a mandate. Where in An Agreed Programme for Government was there a proposal to roll back on the Freedom of Information Act? The answer is nowhere. Out it comes at a few short days' notice supposedly on a recommendation from senior civil servants in order to roll back on a very important right and a basic modernisation of our democracy achieved in 1997.
Thanks to the poodles, the Progressive Democrats, the Government is using a majority in this and in the other House to roll back radical legislation which made a fundamental change in the relationship between public service, Government and the public which the Government does not like one little bit. Why does it not like it? The answer is that the public gets a look-in. What else does the Government not like? It does not like accountability one little bit. It wants to be able to make decisions in secret, behind closed doors. It does not want anybody to know what led to various decisions or how much is being spent on Government decisions. It does not want political embarrassment, just spin. It wants to be able to control its message because it thinks we are stupid. It thinks the people are stupid but in its arrogance it will learn a lesson.
Ms O'Meara: I thank the Acting Chairman. It was my great privilege to work with the then Minister of State, Eithne Fitzgerald, in formulating the principal legislation. I saw the work involved and saw at close quarters its objective and aim. This objective is now being rolled back fundamentally and blatantly in such an abusive fashion by this effectively dictatorial Government.
Ms O'Meara: The aim was to give a right, not a “maybe” or “we will decide”, to the individual to access information on him or her held by public bodies. It gave a right of access within very clearly defined and unproblematic limits to information relevant to decisions made by public bodies. The Minister made a big deal about how it had been rolled out to so many bodies. I note he is not present to hear this speech. He has very little interest in this Bill. The application to hundreds of public bodies was established in the original Act. The Government should not now pretend that it was a favour rolled out by a liberal Government; it only did it because it had to.
The 1997 Act created a public interest over-ride in order to guard against wrongdoing by public bodies and Government. That is the reason the Government does not like the legislation and Fianna Fáil, in particular, does not like it. It now seems that the Progressive Democrats do not like it either. They do not want anybody, be it the media, the public or the Opposition, to question their decisions.
The Act introduced the important principle of openness into the operation of the decision-making process in both Government and public bodies. It created an independent Office of the Information Commissioner to ensure individuals and members of the public who needed right of access to information would be guaranteed it. Unfortunately, as the system on its own could not be trusted to implement the spirit of the legislation, an important independent office was created. It created a fundamental change in the balance of power in our political framework which the Government now wants to roll back. It wants to roll back the public's right to know and on a right of access to information on how decisions are made. It wants to roll back on the possibility of political embarrassment. It wants to create a level of control and spin which is arrogant in the extreme.
The Government and the Minister have made great play out of the so-called “need” for this legislation. The Information Commissioner made a speech to which the Minister for Finance referred in his short contribution to the House. It was made at the freedom of information annual conference in Dublin Castle, held on 10 October 2002, when the Information Commissioner spoke about the radical nature of the legislation and how the public service was forced to adapt to a whole new environment. He stressed that freedom of information has fundamentally and radically altered the nature of the relationship between the public service and the public. In a broader sense, by making Government more transparent and accountable, FOI has significantly affected the environment in which the Government operates. That is what this dictatorial Government wants to roll back.
The commissioner spoke about the public interest in accountability and radical legislation. He stated: “It recognises that the rights and legitimate interests of individuals, of corporate bodies and of the public sector itself are separate from, and subservient to, the public interest.” In that context I want to refer to Senator Norris's annoyance at ethics legislation and our requirements to declare this, that and the other. I remind Senator Norris, and others who find this legislation such an encumbrance, that we are public servants and are here at the behest of the public. We are not here to serve ourselves but to serve the public. In that context, it is crucial that we account for every action we take even if it is an encumbrance to do so.
I want to refer to a specific remark made by the Information Commissioner towards the end of his speech. His concluding comment is extremely relevant to the debate tonight and the so-called argument that the legislation needs to be changed. He states:
I am aware of some tensions in relation to some provisions of the FOI Act which may be seen as unduly interfering in the process of government. However, open government and greater accountability by definition involve greater scrutiny of decision making; while this may from time to time result in embarrassment for public servants or politicians, the common good of safeguarding against wrongdoing, at whatever level, must take precedence.
In any event, I am fully satisfied that the provisions of the FOI Act as they stand are more than sufficient to protect all of the essential interests of government. Nothing in the operation of FOI over the past four years – bar the odd accident – suggests otherwise.
Ms O'Meara: This has come from a public servant charged with the responsibility of ensuring the Freedom of Information Act is implemented. It has not come from senior civil servants, the Taoiseach, the Minister for Finance or a dictatorial Government abusing its power. It has come from the Information Commissioner. While we on this side of the House might listen, the Government is not prepared to listen.
I would like to refer to the issue of senior civil servants who got a lot of abuse in recent days. It was my great privilege to work with senior civil servants when the Act was being drafted. In my opinion 99% of civil servants act in the public interest, and when they are asked to do something, they do so to the best of their ability and do it honestly. I consider that the review of the Act was an honest and excellent document. However, civil servants were not asked to frame the legislation, politicians and the Government framed it. This report went from the high level group to the Cabinet. Who decided to change the freedom of information legislation? Senior civil servants did not, the Government did. Following the Minister for Finance's performance in the House this evening, I would like to know who is driving this change. He did not seem to be in the least bit interested in the legislation. His speech was just floating across the horizon of this legislation. He did not go into its detail. He did not set out any great principles or philosophy behind it. He just gave us an example of one mad requester who has cost the Exchequer €100,000, which seems nothing compared to what will be spent on the Government jet. Just one frivolous requester was referred to the Information Commissioner, even though the legislation allows for frivolity and vexatious requesters to be referred to the Information Commissioner. Why was there just one? The example is so daft that one can clearly see it is vexatious. Where are all the other vexatious requests? If they were so vexatious, why were they not referred to the Information Commissioner? I would like to hear the Minister's response.
I regard the high level report as cover for the Taoiseach. The Government will say that the experts said it would have to change the legislation and its members are just little poodles who will do what they are told. I do not accept that argument. I want to know who is driving this fundamental change in very important legislation passed in 1997, which has become one of the foundation stones of a modern democracy, and which the Government is trying to undermine and remove. We are entitled to know who that is but we will never know under this framework. The changes contained in the Bill are a complete rolling back on the framework set up in the original legislation.
For instance, the widening of the definition of “Cabinet papers” is to include sub-committees with officials, inter-ministerial correspondence and material compiled principally and not just solely for Cabinet. Let us look at that. In the 1997 legislation, those who drafted the legislation went to a lot of trouble to ensure that the definition of “Cabinet papers” would be so framed as to ensure it would not be abused for the purposes of creating exemptions, and it succeeded. I want an example of any Cabinet decision which was allegedly interfered with, undermined or harmed by the Freedom of Information Act. I know of none.
The reason is that the framework in the 1997 legislation creates a seal around decision-making. At the time Members of both Houses, including members of the Government and the Minister, accepted there was a need to protect Cabinet confidentiality and the framework is in the 1997 legislation. What is also included, however, is the right of the public to know what information was used in making a decision. That is essential underpinning of freedom of information. Otherwise, Cabinets just make decisions because they feel like it, as in this legislation. That is not democratic. It is dictatorial and an abuse of power, which is exactly what we are witnessing this evening. Cabinet papers will now include sub-committees with officials. Who are officials? It could be anyone the Government decides, including an expert, or someone in off the street, who would be covered by the exemption.
In regard to inter-ministerial correspondence, let us think about the correspondence between the Minister for Health and Children and the Minister for Finance. Let us think about correspondence in relation to Government decisions or the recent deal with the churches on institutional abuse. Such correspondence would be an embarrassment, which is why the Government does not want people to see it. What harm is it for the public to know what is going on behind the scenes? It does no harm but the Government just does not like it.
Ms O'Meara: The Bill appears to be going further than the Minister of State would like it to go. I suggest that the Minister of State should accept the amendment on that particular section when we put it down.
The Bill refers to material compiled principally and not solely for Cabinet. This was specifically put into the original Bill to ensure that material going to Cabinet was covered by a narrow rather than a broad exemption. The narrow exemption has now become a broad exemption. All material compiled principally for Cabinet now becomes exempt from the operation of the legislation.
I want to touch on the matter of the appeals process and costs. This is one of the most insidious elements of this legislation. A broad blanket of €20 is being applied. The Minister for Finance seemed to suggest earlier that it could even be higher because he has not decided what will be the cost of an application or an appeal. I understand that, under the current operation of the legislation, there is a certain discretion being used within Departments. I agree with this because some people can afford to make information requests while others cannot.
I would have no difficulty with large media outlets such as the Sunday Independent paying the full whack for information but I have difficulty when a small group such as a group in north Tipperary which is currently trying to get information from a health board is asked to pay €20 for every application. It has ten applications in train currently so it would be asked for €200. It does not have that money and would have to ask whether it should make requests on behalf of the community. This blanket charge is wrong and is contrary to the spirit of the legislation. I appeal to the Minister to reconsider it. I hope this charge is not indicative of the intention of the Minister or the Government to prevent applications for information or appeals against decisions.
An appeal against a decision is a fundamental part of the fairness of the operation of this legislation. Under the legislation the public servant makes an initial decision. An appeal structure and mechanism is essential to fairness. It is in-built in much of our legislation and is a fairly well established principle of natural law. It is a principle of any fair society that people have a right of appeal. I urge the Minister to remove the charge for an appeal. It is wrong.
Ms O'Meara: This was not recommended by the high level group which is getting the blame for everything. This proposal clearly came from the political side. Who was behind it? What is the problem in giving access to information that goes into parliamentary questions? Let us remind the House of the remarks made by Mr. Justice Hamilton in regard to the beef tribunal. He said if parliamentary questions had been properly answered in the first instance, we would not have to spend €35 million on the tribunal.
Ms O'Meara: I thank Senator Brian Hayes for his supportive remarks. Who was behind this proposal? Of course, we will never know because the proposal will close off the area. It was clearly designed to keep us in the dark and to throw a blanket of secrecy around the way decisions are made.
I am familiar with the 1997 legislation having worked closely with the Minister of the time. The matter of certificates is a critical one which relates to the Cabinet making a decision and the so-called deliberative process that goes with that. Much discussion and soul searching went into the matter of the issue of certificates at the time. This is critical also in regard to the legislation's application to the Department of Justice, Equality and Law Reform. The issue of a certificate, in the original 1997 legislation, was considered to be a rare but important event. The legislation recognised that there were times when things needed to be kept secret but it limited certificates to sensitive and security issues. It also had built-in safeguards, for example, in regard to the publication of certificates so that the public could see how many certificates were issued, by what Department, who okayed them and their general subject matter. We could see therefore that there was no abuse of their use.
This legislation basically means that certificates can be thrown around like confetti at a wedding. The certificate will become the blanket of secrecy which this Bill intends to wrap around the deliberations of Government. Routine policy information can now be put beyond the appeals process by the use of these certificates in the framework contained in the new Bill. This is probably the most far-reaching restriction on information in the Bill. We intend to put down many amendments on Committee Stage. The legislation will allow a Government that is hostile to the release of information, as this Government clearly is, to use certificates to label information as relating to unresolved policy issues. The only route of appeal will be the High Court. Who has funds for that?
I would like clarification in regard to the use by individuals of the Freedom of Information Act. The impression has been created that the amendments contained in this Bill will have no effect on the right of the individual to access records from public bodies. My information is that there is a critical change of wording in the relevant section of the original Bill which would mean that individuals “will only be allowed access to personal records which contain personal information on them” and will no longer be able to access records “relating” to them. This sounds like an exercise in semantics but words are important.
People will now be only able to get records containing personal information about them rather than records relating to them. This is an important new provision. I am being nice about it in asking the Minister to clarify the situation and tell me if I am reading it correctly. Is it the case that this can be used to tell individuals that they no longer have access to certain records? This could be a dangerous provision and we will seek to amend it.
I referred already to vexatious requests. The example used by the Minister earlier was frivolous. It was certainly vexatious in terms of my response to it. The Minister referred to one individual and an appeal which went to the Information Commissioner. I would like the opposite side of the House to stop talking about that. If there were so many vexatious requests why were they not referred to the commissioner?
I take issue with the Minister's point in regard to users' groups. He referred to the Civil Service users' network in 1999, and the FOI central policy unit within his Department which chairs an interdepartmental working group and a public service users' network with representatives from all sectors of the civil and public service which is covered by the legislation. He spoke of a consultative group and stated how it has kept the area under continual review and has fed into the process which led to the production of the Bill as it appears before us, as if to suggest that users are asking that the Bill be amended in this way. That users' group has not sat for years. It has not been consulted for years so its work at this stage is effectively irrelevant. Its establishment was made irrelevant by lack of use. There has been a lack of consultation on this Bill.
We listened to the Leader of the House stating how we all wish to rush legislation through the House, which is not true. The original Act took many months to make its way through both Houses of the Oireachtas. The Minister of the day wanted to hear the views of the Members of both Houses. The Government took its time to ensure that everybody knew what was in the Bill, because it was so significant; that everybody understood its operation; and that everybody's views were heard and, to some extent, taken on board when possible. That is not happening here. That is clearly not the intention of the Government. This is a railroading of disgraceful proportions.
There has been a fair bit of swiping at the media. I should have declared earlier that I am a proud member of the NUJ and a former journalist to boot. It is fine by me if the media chooses to splash our expenses all over the papers. I might be the only Oireachtas Member to say so.
Ms O'Meara: My clear impression is that some people have difficulty with this matter. The reason I do not have any difficulty with it is because we made the decision to go into public life and we are paid out of public money by the taxpayer so we should be accountable for our role and what we do with that money.
Ms O'Meara: We do not have any right to tell the media how to use freedom of information. As a former journalist , there are some times when I roll my eyes to heaven and say, “Did you have to do it like that, guys?” We live in a democracy and the media is the Fourth Estate and we must accept it warts and all.
Mr. Coghlan: Of course. I will try not to be repetitive. Having spent so much time here this evening I was struck by the comprehensive nature and the fundamentally sound arguments of a number of the speakers.
Senator Ross stated that it is natural for Governments to devise ways around things. In his capacity as a working journalist, he believes that the Government did not like the way in which the Freedom of Information Act has operated. He feels that it embarrassed the Government and that its response was typical in such a situation – it called in the mandarins. He views the mandarins as a secret organisation and sees it as the culture of all civil servants to bring the lid down on things.
He also made an interesting point in regard to Cabinet leaks. History is littered with numerous examples of Cabinet leaks. Senator Mooney is sitting in the seat usually occupied by the Leader of the House on the Order of Business.
Senator Ross made the suggestion that there be a permanent microphone and camera in Cabinet meetings but I do not think many Senators on this side of the House would go that far. I am reminded of what a former leader of my party, Deputy John Bruton, said on one occasion, that Government should operate as though it were behind a pane of glass.
I agree with Senator Ross's assertion that Governments should not be ashamed of their views. He also made a statement that would be very disturbing if it is true. He suggested that top civil servants and judges do not have to declare their interests in the same way as Members of the Oireachtas. I cannot understand the differing levels of accountability, if that is the case. It is strange, if not incongruous, that people in the public service are to be treated so differently.
I very much enjoyed the contribution of Senator Norris, another part-time journalist who writes for the Evening Herald. He made the point that most journalists treat information seriously and responsibly, although he agreed that a few did get carried away on the question of expenses. He suggested that it might take up to nine months to get at some records. He also referred to the widening of the reasons for refusal which he viewed as becoming more vague. If that is true, it is most disturbing and I share the concerns he expressed. He also spoke of the precipitant arrival of the Bill before us. As was outlined earlier on the Order of Business, it was only published on Friday and most of us did not see it until yesterday. We hardly had an opportunity to read it. However, it is here now and we have to deal with it.
I enjoyed the contribution of Senator Minihan, who was inclined to assert that no one had abused the legislation. Senator O'Meara rightly pointed out one person had. We all accept there was one. That indicates the excellent record to date regarding the legislation and the way it has been treated by requesters.
Senator O'Meara's contribution was excellent. I did not realise that she had been a working journalist which explains the reason she was able to deal with the matter so excellently. She made many fine arguments and dealt particularly well with the questions of the charge for appeals and parliamentary questions. She reminded us of the views expressed by the late Chief Justice Hamilton whose work was not finely regarded in his conclusions on the beef tribunal. He remarked that if only parliamentary questions had been answered fully, the tribunal might not have been necessary. We all know what is said about those who advise Ministers. As I speak I am reminded to welcome the Minister of State, Deputy Fahey. The poor man is having to spend a great deal of time here.
Mr. Coghlan: We sympathise with him, if that is the right thing to do. Those who advise him and his colleagues tend to be economical with the truth. This seems to be a natural trait of civil servants.
Earlier today in passing between offices I heard some of what Senator Mansergh said. I was struck by his reference to the time when he was advising the former Taoiseach, Mr. Albert Reynolds. According to the Senator the Taoiseach declared that he wanted to let in the light. Was the Senator acting as St. John the Baptist for this Bill?
Mr. Coghlan: Senator Mansergh is a fine Senator and I am sure he made a fine contribution. He also pointed out – he would know because he comes from the other side of the tracks, although he is now here as a parliamentarian – how secretive and authoritarian the Civil Service has been.
There has been a fundamental lack of consultation with regard to the Bill. There was no communication with the Information Commissioner who required information. That was a denial of basic courtesy, if not absolute contempt. Neither was there consultation with journalists who, by and large, have used the Act responsibly and in the public interest. Commercial organisations were not consulted despite their daily dealings with, for example, the Departments of Finance and Enterprise, Trade and Employment.
Does the Government not realise that this repeal measure will only fuel cynicism about politics and politicians? This is a sad day for democracy. The Government may not like the effects of the Freedom of Information Act but this measure is wholly inappropriate. It was preceded by a review group of five top civil servants. The three wise men did a good job for the Minister for Finance but the five Sir Humphreys did not. I was corrected earlier and told there were four Sir Humphreys.
Mr. Coghlan: Is that right? I thank the Senator. Such a group would not be known for its commitment to openess. They only met in secret. The commissioner and everyone who used the legislation were ignored. The Government is rolling back on progress. It was a Government of Fianna Fáil and the Labour Party which initiated the measure and it is hard to understand the present rolling back. The proposed curbs on the materials of working groups and discovery notes to Ministers will mean that, in future, the public will have no means of knowing when the Cabinet acted against official advice – more is the pity. The right of access to official information should not be regarded as a privilege afforded by Government but a fundamental right in our modern democracy which is funded by the taxpayer.
The charge will be that the Government is doing everything to avoid, at any cost, embarrassing revelations of the truth about its activities. Every objective commentator regards this measure as heralding a bad day for democracy. The Taoiseach introduced the Freedom of Information Act as a catalyst for lasting change in the history of the public service. At the time openness, transparency and accountability had become the new gods but this measure is a total about turn. It is a stumble, if not a large step back, in the other direction. We are limiting sight and vision. The blinds and shutters are coming back into vogue.
A secretive review of the Act must be something of a joke, if not a downright mockery. The Information Commissioner, Mr. Kevin Murphy, in reviewing the Act last year, feared that some elements of officialdom were showing signs of fatigue towards the legislation. We now know that fatigue permeates the higher echelons of the State service and that the Cabinit has become affected. The publication of Cabinet papers is to be delayed for ten years. The restriction on papers dealing with security on Northern Ireland was already in place and did not need to be included in the Bill.
The Minister for Finance is an interesting case in point. He has frequently disregarded official advice which is refreshing. The former Taoiseach, Mr. Albert Reynolds, did the same in his day. It might not have been as refreshing in his case. They were both perfectly entitled to do so, although I find myself more in accord with the Minister for Finance than with others. In future we will not be able to know if a Minister disagreed with advice. Whatever about Cabinet papers, letters between Ministers about Cabinet issues should not be covered by the Act. They are not Cabinet decisions and should not be brought within the scope of the Bill, as is happening. Reports from Cabinet sub-committees and officials will also remain private. I do not see the reason that should be so.
One of the Government's problems appears to be that the Information Commissioner's recommendations are binding, while in his role as Ombudsman his recommendations are not binding. I wish to quote from interview with Mr. Kevin Murphy on his role as Information Commissioner – some Members may have already read it, but others may not – in an eminent journal, Public Affairs Ireland.
Mr. Coghlan: I would like to do the equivalent of laying text before the House by reading some of it into record because it is pertinent to some of the arguments which have been, and will be, advanced during the debate. With respect, I believe it answers some of the arguments from our worthy opponents across the floor.
Q. Do you think that the Freedom of Information Act 1997 has achieved its purpose in ensuring greater transparency and accountability in policy formation and decision-making?A. I think the Act has made a significant contribution to achieving greater transparency and accountability in policy formation and decision-making but that it is too early yet to make a final judgment.
One interesting development concerns the fact that papers relating to Government meetings may become open to an FOI request after five years. Since the Act is not yet five years old, that provision has been of no effect yet. [We now know it will not be allowed to have an effect.]
This position will change from April next year when the Act will have been in operation for five years. In other words, from then on, on a rolling basis, papers relating to Government meetings will be open to an FOI request on the fifth anniversary of the meetings concerned.
Q. How many appeals do you handle in a year, and what proportion would result in material previously withheld being released?A. We handle of the order of 400 valid cases per year. Given that many public bodies have internal reviews and appeal mechanisms, I tend to get cases only after a public body feels it has good grounds for refusal. On average, I overturn the public body's decision in about 25% of cases appealed to me.
Q. Do you think that the FOI Act has led to a reduction in the amount of material that is committed to paper by public servants?A. In my special report on compliance in 2001, I found no evidence that less detailed information was being recorded or that certain information was being deliberately omitted. However, there was some anecdotal evidence to this effect.
I am not aware of any case of non-compliance by public bodies although there have been appeals against some of my decisions on a point of law to the High Court. If a public body simply refused to release records after I have decided that release was justified they would be failing in their duty to respect the statutory rights of access, provided for in the FOI Act.
As such they would be open to a complaint to the Ombudsman for misadministration. There is also provision in the FOI Act for the Commissioner to carry out investigations into complaints and submit a special report.
Q. What is the outlook for the Office of Information Commissioner?A. By and large the Office is working well. It has already become a familiar part of the administrative landscape in Ireland and has earned the respect of public bodies and requesters alike. With over 350 public bodies now subject to the Act, the need for an effective office is likely to grow for some time to come.
Dr. M. Hayes: I have some declarations of interest to make before I begin. I am a member of the board of Independent Newspapers and I write for one of its organs. Some of my friends in the field of journalism might not like all of what I am about to say. I am also a former civil servant and some of my former colleagues in that profession may not like what I have to say either.
It is a pity that this subject has become so dramatised. It is an important issue but it is not helped by hyperbole on either side. The world will not fall apart if this Bill is passed. On the other hand, it might be a better one if it was not passed. There are two important safeguards to democracy, one of which is freedom of information and the other is strong Government. It is a question of finding a balance between the two. People have a right to information, but it is not an absolute and unqualified right. Equally, a Government is entitled to a degree of reticence when it is reaching conclusions but, in a sense, that cannot be absolute either. It is a pity that this legislation was not developed at a slower pace. It is a subject which, to coin a phrase, would benefit from mature reflection.
I have no doubt that the high level group is excellent, but it took a rather narrow look at a broad and complex subject. I do not know who are the members of that high level group, but I am sure some of them are good friends of mine and I do not intend to denigrate their efforts by any means. It is a pity the Information Commissioner was not more involved in the discussions in order that his experience could be drawn upon. It would not have been a bad idea to have a senior retired journalist contribute as well.
I do not wish to impugn the reputations of the members of the high level group. However, when five people are drawn from more or less the same background and the same stable, they tend to look at life through the same set of lenses. It is sad that a slightly broader view was not taken. I have been in similar situations and I know well how one reacts to the circumstances with which one is presented. In that particular culture, there is a tendency to turn inward rather than look outward.
The implication from the format of the Bill is of a slight withdrawal from freedom of information. It may not have been intended, but the cumulative effect of the different proposals is rather to change the burden of proof and, for example, require people to prove that something is not against the national interest rather than the other way around.
Cabinets are entitled to do their business in private. I have no difficulty in supporting a proposition that Cabinet documents, narrowly drawn, would be kept secret for more than five years. A period of ten years is, perhaps, too long, but it should be something of that order. There is a real inhibition on people saying what they wish to say if they know it is going to be disclosed. I am one of those people who has an uneasy night's sleep on 31 December each year when I wonder what files will appear on 1 January containing things I wrote 30 years ago.
I would find it much easier to sustain the argument for complete Cabinet confidentiality if I were sure Ministers were not at times leaking information and were not using the press to embarrass other Ministers. I am sure the Minister does not know what I am talking about. I am speaking about another jurisdiction of which I had experience. Far be it for me to draw any analogies, but Members will be aware that Ministers were trying to push their own line and secure a public constituency for what they were after. The interaction between Ministers should be robust and they should fight their corner and so on. It would be a pity if they were inhibited from doing so by having to do so in the full glare of the limelight so I support the closure of Cabinet records.
What I find difficult in the Bill as proposed is the width of the definition given to Cabinet papers. I hope it will be possible on Committee Stage to think of ways in which it might be delineated more clearly and perhaps a good deal more restrictively.
Another issue with which I have some difficulty and with which the public might as well is the extent to which the question of whether something is in the public interest or whether it should be released resides with the Secretary General. Having been in that position, I know the difficulties that raises for the individual. If, for instance, it was a Minister, he or she could be questioned in the House and asked to justify his or her position but, by definition, a civil servant cannot be. That is why there is a need for a referee, the Information Commissioner or some such person, to adjudicate on whether the national interest would be imperilled by the release of information. There are times, of course, when it would. Having worked in Northern Ireland, I also know that there are times when the disclosure of personal information could be extremely dangerous to people. There must be a means of dealing with that. Ordinary, reasonable people would accept that. What they find harder to accept is the blanket nature of the exceptions and the fact there is no court of appeal or no referee outside the system. After all, if one pleads national interest in court, the court will at least want to know prima facie on what one is basing it.
I find it hard to understand why we are doing so much in this Bill. I am not sure the case has been made for an enormous problem which needed to be dealt with in this way. The phrase “a sledgehammer to smash a nut” runs through one's mind when looking at the Bill. The important thing for the Minister and for us is that the Government can do its work unimpeded when necessary. That is a very narrow field which can be narrowly defined. It is also possible to define the conditions in which people could be declared to be vexatious. It is unfair to expose Departments to fishing expeditions. However, where information is available and should be in the public domain, it is perfectly legitimate to make proper arrangements for that. I have no doubt that could be done.
There is a danger of this Bill having been perhaps over-influenced by Civil Service caution. There may be a case of these people putting a saddle on Ministers and inviting them to ride at Beechers Brook. Much political dust and noise has been raised as a result of this which need not have been. I support the protection of the confidentiality of Cabinet discussions but it is possible to define them a good deal more narrowly than they are in the Bill. There are many good things which should be in the public domain such as background and research papers and so on. If the position of the Information Commissioner was more clearly recognised on the face of the Bill and if provision was made for the rapid and effective resolution of disputed questions when they arise, it would be a better Bill.
Mr. Quinn: I remember being taken through the objectives of the legislation in 1997. I was unaware of it before then. Following that, I became an enthusiast for freedom of information and I was impressed by a Norwegian legislator whom I questioned before that legislation went through. Like me, he had been unaware of the implications. It was interesting to hear Senator Maurice Hayes talk about Civil Service caution. They went through that same thinking and became enthusiasts as well. I was impressed by Senator Coghlan who, I think, quoted the Taoiseach in 1997 who spoke about this being a catalyst of lasting change.
I am speaking from the basis of an enthusiasm for something of which I had been unaware and which I did not fully understand before 1997. With all that due consideration, I would say today is one of the saddest days of my experience as a Senator. Colleagues will know me as a perennial optimist. Over the past ten years, I have generally found it possible to welcome most of the Bills which have come before us for scrutiny. I was able to do so because, for the most part, those Bills represented a step forward – a step which was sometimes hesitant but, nonetheless, a step into a new Ireland and a changing world.
Today, we have been presented with what I would describe as a step backwards into the age of darkness because that is whole thrust of this Bill. This legislation harks back to an era when Government by stealth was the order of the day and when knowledge was considered to be power not to be shared with anybody outside the ruling clique of the time. This Bill seeks to drag us back to an Ireland from which I believed we had decisively moved away once and for all in 1997.
To say this is not to oppose the idea of reviewing the impact of legislation. In fact, I have consistently advocated that. Senator Maurice Hayes and others spoke about Cabinet confidentiality being extended from five years to ten years. There is sense in some of these proposals. I am not arguing that there is not a case to be made for some of the changes set out in the Bill but the argument made for others is less than compelling.
I refer to the overall thrust of this Bill and the manner in which it was introduced, about which others have spoken. There was no consultation with the various interests involved. As regards the manner in which the Bill is being processed in the Oireachtas, it was introduced virtually before the ink was dry. It was published on Friday but many of us did not receive it until yesterday. Some of us did not get it until today.
There is what appears to be a fairly rigid timetable for getting it through both Houses. Taking all those things together, it is impossible to see how we can regard this measure as anything other than an attempt to roll back history by those who would thwart the right of people to know how we are governed and substitute for that right a closed system dominated by a largely unaccountable elite. That is the way we lived in the past.
I do not for one moment doubt that the present freedom of information legislation has shortcomings which should be addressed. I am a great believer in looking back at legislation and readdressing it. However, that should take place after careful consideration and consultation. It is one thing to fine-tune a critical part of our democratic heritage, it is another to seek to undermine its very effectiveness and make it a dead letter. The forces behind this change are no friends of democracy or the people. They are not believers in open government. They are, I suggest, its enemy. They have been biding their time since the Act was passed in 1997, waiting for the moment to strike. I ask whether the Government really knows what it is doing in acquiescing in this rush to spancel our freedom and the freedom of information regime we established only five or six years ago.
Does the Government not appreciate the enormous sea change that the passage of the original legislation only six years ago represented? Does it not realise the nature of the message it is now sending out to the people of Ireland by seeking to tamper with this regime in what I would call a hasty, ill-considered and self-serving way? When the Bill was passed in 1997, we all hoped it was merely a first step on the road to openness and transparency in government. We pointed to the example of the Scandinavian countries where every document of Government was automatically considered to be public property and available to everybody almost immediately. We reminded ourselves that they seemed to be able to do their business very well on that basis. We pointed to the benefits of such an approach in bringing people closer to the whole political process.
We have had difficulty in persuading sufficient numbers to vote in recent times. The polls have been lower. One of our objectives should be to bring citizens into the political process. We have not been very successful in doing so. The Freedom of Information Act was the first step in that direction. We pointed not just to the experience of the Scandinavian countries but also to the experience of the United States which had a tradition of open government. We pointed to the experience of a growing number of other countries around the world which had adopted a similar approach. We were not leading the field in this. Others had done so. While we were reasonably well advanced when we came in in 1997, we were not leading the way. However, we were in no doubt six years ago that the road of openness was to be the highway of the future.
In 1997 we were hopeful, above all, that the next steps we took in legislating in this area would be in the opposite direction to the one we are taking today, that we would extend the scope of the original Act by building on our initial experience and strike out further along the path to full openness, accountability and transparency. Instead we have this dreadful and shaming little Bill that is being hastily brought before us. This is legislation prepared by people who hate the very idea of freedom of information and who will do everything in their power to frustrate its concept in action. Theirs is the way of secrecy, a belief grounded in the approach that as much knowledge as possible should be kept from the citizens of this republic. They believe in putting barriers in the public's way rather than in assisting them to obtain the information that should be theirs by right.
What is so saddening is that this philosophy, this world view, if I can call it that, is decisively a thing of the past. Right around the world, movement is in the other direction. To head backwards as the Bill threatens to do will have very real and practical consequences in terms of our national and political well-being. I welcome the Minister of State, Deputy Parlon. I know his heart will be influenced by what we say here. Although this debate will go on for long, I am sure it will be well worthwhile because the Minister of State is a man I know will keep an open mind. I hope, if he is here to handle the Bill on Committee Stage – I gather he will not be in Cheltenham as the Minister may be – that he will take what we say into account.
For the past decade or more it has become commonplace to bemoan the way ordinary people are losing interest in politics, that we have not had the sort of polls we used to have in the past, and the growing irrelevancy of Parliament to the vast majority of our citizens. While we are quick to bemoan these things, we are much slower to do anything concrete to improve the situation. The Freedom of Information Act 1997 was one step. I have always held the view that the closer people can be brought to the political process and the more they are involved in the running of the country, the healthier will be the political atmosphere created. That should be and was our objective. We were taking steps in the right direction. That is the reason I have always attached the greatest importance to the principle of openness and accountability in carrying out our responsibilities in these Houses, welcomed the original legislation with such open arms and mourn the direction we have this week decided to take.
I said this is the saddest day of my time here as a Senator. I do not think that was an overstatement. This is a day the House will live to regret. By passing this Bill – I hope we do not pass it as it stands – we are turning our back on the future and taking a decisive step into the past. While I do not welcome the Bill, we could make of it something that is not as backward a step as it seems at first glance. I hope the Minister will listen to what is being said and that a sufficient number of amendments will be accepted to change the whole tenor of the Bill. The Government should change its mind. It would do far better to take the Bill back, think it over and come up with a new Bill.
I do not know what possessed the Government to introduce this legislation. Was it because the Minister for Health and Children and the Minister for Finance were fighting about money? I would think they had gone mad if they were not. It would be better if we knew the Minister for Health and Children was putting up a strong fight to get money for his Department and that the Minister for Finance was saying he had to explain where the money was being spent. Nothing is worse than rumour and nothing could be better than knowing the facts. The aim of the Bill appears to be to try to hide what is going on in government exactly as it should be. I cannot understand the reason we must have this really heavy-handed legislation to deal with this.
What worries me most about the Bill is how it will affect individuals. There will be a huge increase in the restrictions on individuals accessing their personal records. Individuals – this includes staff of public bodies – will, under the legislation, be allowed to have access only to records containing personal information on them. This is defined in the Bill as meaning information known only to family and close friends. However, individuals will no longer have access to legislation relating to them. This is very serious because misleading information is occasionally given out about people. If a serious accusation is made such as, perhaps, that a person is engaged in a paeodophile ring, how will that person gain access to such information relating to him or her? Families or close friends are hardly likely to know that. How can people remove wrong information from their records?
It is extraordinary that this Bill is going through at the same time that a Member of this House and a Member of the Dáil are disputing the claim that their records are required by the Morris tribunal. The tribunal claims it needs the information to make a judgment as to what is before it. That is totally contradictory and I cannot understand why the Government has brought forward this measure at this time, apart from the fact that Government records from five years ago would be known in a few weeks' time. What of that? They will come out month by month only. It is surely possible to take this Bill more slowly.
Individuals will not be in a position to be told about any confidential information held about them by a public body. This may be dangerous for them if the information is malicious or false in any way. I realise that there has only been one vexatious request in the past five years but that shows that the protection is already there. Why are we putting in additional sections?
It is also of concern that more time will be taken to deal with complex cases. Those who have used the Act know how difficult it is to get information from Departments. However, the consultation period will be extended from nine to 11 weeks and the length of time which the Information Commissioner has to determine appeals will be increased from three to four months. This is a long time for an individual to have to wait for a decision, and may be harrowing for them. These matters are important for people's personal lives as well as for their careers.
I am concerned at the exemption of more public policy information from third party scrutiny. Public bodies may not even confirm or deny whether certain classes of information or records exist, such as those given in confidence, those which are commercially sensitive or personal records. This is very difficult for the public to deal with. I have had representations from voluntary bodies asking how they are to scrutinise areas of public policy which may be important to them, and I sympathise with them.
It is also a concern that the records of one public body might be refused if those records could affect the work or deliberations of a separate public body. This is unlimited and could mean that a hospital would refuse records because they would affect a health board or vice versa. These are huge issues and I am not sure that the Government has considered carefully enough how this will impact on voluntary bodies trying to find out what public policy is, which is their entitlement.
The Bill gives new powers to the Secretary General of a Department to issue certificates to the effect that an item is under the deliberative process. I am not sure what that means but, given the situation with the Luas, the metro and so on, the deliberative process could go on for ever as there is no time limit on it.
A new clause is proposed banning release of information if it could endanger the safety of a person. That is a very wide definition. Does it include e-mails from bin Laden? What does it mean? It is a very serious measure. Both of these clauses are open to abuse and are not subject to public interest tests or third party scrutiny.
I cannot understand why certain matters are included in the legislation. One area of great public interest and on which an absolute ban is imposed is the costing of the plans of political parties. This was one of the most important issues in the last election. It is now said that the costing plans of the Government parties – certainly Fianna Fáil – were unrealistic. This is an issue that the public should be able to consider in order to judge how they will vote.
Briefing notes and supplementary information for parliamentary business, and records relating to the business of tribunals or ministerially ordered investigations, also attract a total ban. This kind of record has frequently been used in recent years to broaden public understanding of issues and has generally been prepared at the taxpayers' expense. It is not clear why these records cannot be released.
Ms White: I am not a technical expert on the Bill. but, having been a public servant for most of my working life, I feel that there has been an amount of tongue in cheek in contributions from the Opposition side of the House. Senator Quinn spoke about trust in the public service and the Government. He and I do business together and we trust each other 100%. I do not understand why there cannot be such trust in public officials or in Government. People trust each other to do business.
Lack of information cannot be blamed for the fall in the number of people voting. It is a different matter and I am not persuaded by Senator Quinn's argument in that regard. Senator Ross went far in his contribution. I felt I was listening to a debate in Cambridge or Oxford and that the Senator was taking the position he did just to be controversial.
Ms White: I disagreed with her but it was a pleasure to listen to her expert knowledge of the period when she worked with the former Minister of State at the Department of Finance, Ms Eithne Fitzgerald.
Ms White: I had a visceral reaction to Ms Fitzgerald's Bill, having been a public servant. This country is in safe hands with regard to the quality of its public servants. It is wrong to call them an elite group who want to keep information to themselves. I never met public servants like that on any Government body of which I was a member. There is always information available if people look for it.
The Bill extends the period for release of information from five to ten years and I have no problem with that. However, having been chairwoman of one organisation – I cannot say what the organisation was or I will be in trouble—
Ms White: A controversial subject was raised and one member of the organisation, who never came to the meeting, said she would get information on it from the relevant Department under the Freedom of Information Act. I was repulsed by that. The woman did not go to the meeting but could then be controversial and freeze the discussion going on at the council.
Ms White: We could not continue the discussion because there was to be a freedom of information request. I look forward to Senator Brian Hayes's contribution. I will be interested to see how long he detains the House.
Ms White: I have worked with public servants since 1962. They are an outstanding group of people of the highest integrity. We are privileged to have such an elite group serving the country. The failure of two or three politicians to hold such standards should not be used as an excuse to enact legislation where concerns about public disclosure will paralyse meetings and decision making. Those in the public service bureaucracy who make wrong decisions will suffer if they are exposed.
I do not agree with freedom of information operating on a general level because I have seen its capacity to be destructive. I trust the civil servants and 99% of politicians in the same way as Senator Quinn and we trust one another when we do business.
Ms White: Opposition Senators are seeking to cause controversy. They lack Government experience. If they were in government for long enough they would wish to make decisions without worrying about public disclosure.
Mr. B. Hayes: I hope my comments live up to Senator White's expectations, although I suspect not as the debate progresses. I welcome the intervention by Senator Maurice Hayes, a former Ombudsman in Northern Ireland and a distinguished member of the Oireachtas SMI committee. The Government would do well to note what he said, especially his view that the Bill is badly thought out and is being rushed through the House. There have also been excellent contributions by Senators on all sides of the House.
Nobody wants to be here until 1 a.m. or 2 a.m., but the Opposition has been forced to take this procedure because the Government decided to complete Second Stage today. It would not be necessary to sit late had the debate been extended over the following two days. Nobody wants to detain the staff of the House or the Minister of State and his staff until the early hours of the morning, but it is being done because of the Government's decision effectively to guillotine Second Stage.
More important amendments than those outlined in the Bill should be introduced to the Act. In this regard the Government should consider repealing the Official Secrets Act. In 1996, an Oireachtas joint committee concluded that fundamental change was required to that legislation to ensure greater accountability and openness in Government. It had the approval of all parties in the House and the Government should address the issue. I look forward to the Minister of State's response.
There are stark differences between the Freedom of Information Act and the Bill. When the Freedom of Information Bill was finally passed in 1997, two Governments had been party to its deliberations. There was a long period of gestation of approximately eight months before the Bill was produced and was passed by both Houses. Most importantly, there was all-party support for it.
By politicising this issue in the way it was done last week, we are doing it a huge disservice. All-party support has been the essential element in any legislative assembly that has enacted this kind of legislation, specially in Australia and Canada, which take the most liberal approach. The rowing back of this position with this Bill is bad for a freedom of information regime. It need not have happened.
Last Tuesday the Government decided to proceed with amending legislation but it refused to publish the Bill until Friday when neither House was sitting. It is now going through the charade of putting the Bill through Second Stage this evening and proceeding to Committee Stage next week. There has been no Opposition consultation. That is wrong because it has meant that freedom of information has become a tool of the Opposition. Members on this side of the House have been in Opposition for a number of years and they are aware of the implications of this development. Not only the parliamentary but the wider opposition use freedom of information legislation to get the maximum amount of information on the decisions-making processes. That is why it is so reprehensible that no formal consultation on this Bill took place between the Opposition and the Government on changes to a regime that had attracted all-party support in 1997. It was the wrong way to do business.
The fundamental difference between the Act and the Bill concerns the extension of the provisions regarding the five year rule. I support some of the comments made on the Government side of the House and I will return to this aspect. There has been no consultation and it is not good enough that five Secretaries General, upstanding people and excellent officials, should be left in this invidious position. Some of their recommendations have been transmitted into legislation. It is wrong that they were the only people to be consulted. There has been no role for the users of the legislation.
On the 9 o'clock news this evening, the Tánaiste and Minister for Enterprise, Trade and Employment suggested that this is a media device and that the newspapers have created a head of steam over it. This is not just a matter for the NUJ or newspaper columnists or those who work in television and radio. Huge numbers of citizens use this legislation on a daily basis to extract their rights from the bureaucracy, the unmoveable object that frequently stands between them and their rights.
There has been virtually no consultation with the Information Commissioner, who is the last recourse of appeal for citizens. The Government has said it favours consultation and that it is the way to do business and process legislation. The Taoiseach's action programme on regulatory reform, launched in 1998, states: “There should be adequate consultation with interested parties before new legislation is introduced.” The Government's February 2002 paper on better regulation states: “One method of engaging citizens in decision making is the use of public consultation processes.” This morning we saw what happened to that process. An amendment I proposed to the Order of Business which would have allowed the Oireachtas Joint Committee on Finance and the Public Service to engage the public and the users of freedom of information by holding specific hearings at no cost to the Exchequer was voted down by the Government. It is voting against its own stated policy, which dates back to 2002.
The recently concluded Sustaining Progress agreement identifies as a key principle the promotion of greater consultation and transparency in formulating legislation and regulation. Once again, there was no consultation with the users, the Opposition or media, all of whom use this legislation on a daily basis to ensure accountability. The saner voices of the Government – there are many – should note that the policy position they have adopted has been breached.
The manner in which the Bill is being dealt with and its inclusion in the public domain ensure that the Opposition will not see any of its good measures, while those on the Government side will not recognise its fundamental injustices. I support unequivocally the fact that the proposed legislation will, for the first time, give a right of appeal to the High Court and Supreme Court where there is a difference with the decision of the Information Commissioner. I welcome this and support the fact that the maximum time limit in respect of the Information Commissioner is now four months as opposed to the previous limit of three months. That is also good but we will not have a proper exchange because the matter has become politicised as a result of the process in which the Government has chosen to engage in the House and, presumably, elsewhere.
The contention that there is a free-for-all in terms of FOI requests is just not true. The Act, as it stands, automatically protects sensitive communications of a deliberative nature. Tonight, for instance, we realise how important it is that sensitive communications between the Irish and British Governments on Northern Ireland remain secret, sensitive and secure. Nobody is suggesting that that should not be the case.
There are checks and balances already in place in the legislation. The Information Commissioner's decisions to date have been even-handed. Is the Government suggesting that every appeal that goes to him automatically results in his favouring those who are seeking the information? This is not the case. If one looks at the report of the commissioner, one will note that he regularly takes the side of the Government regarding decisions on whether information should be given out. There was absolutely no recognition in the Minister's speech that the protective provisions I have mentioned are already in place.
Since 1997 there has been a tremendous advance. Many papers related to decision making, which were previously governed by a 30 year rule, are now governed by a five year rule. The Government is now proposing to change it to a ten year rule. We can have a debate about that issue about which I am neutral. I understand the difficulties any Government might have regarding the issue, but the Government chose, through the process I outlined earlier, not to engage us in any consultation. This is our Act and it was passed on an all-party basis in 1997. Considerable time was devoted to it, involving two Governments from both sides of the House.
Let us have a debate on this issue, although I do not believe it is the most important part of the Bill. I do not think the move from five years to ten years is all that important. In many respects, letting the public know the decision making processes of Ministers is a very good thing. We all know that politics is dull and boring in this country because of certain characteristics of political parties. The bigger the party, the bigger the disagreement. An independent Member such as Senator Quinn will never disagree with himself, whereas the Labour Party, with its five Senators, will have some disagreement. Fine Gael has considerable disagreement because it has 15 Senators and I presume that Fine Fáil and the Progressive Democrats have the same problem. However, that is good.
I ask the Minster to reflect on this. If we treat issues seriously we will acknowledge that there has to be real debate in parties, around the Cabinet table and between Members on both sides of the House. We should not be afraid of this. It is good that the Ministers for Finance and Health and Children are constantly at each other's throats in relation to funding because it is fundamental to the decision of whether we should raise taxes and the mechanism regarding the choice of priorities. There is a natural opposition to freedom of information from a bureaucratic level and from Government because they think there is something macho about saying we sing from the same hymn sheet when, in fact, we do not. This is also a good thing.
One reason why some Ministers are quite happy to see the five year rule changed to a ten year rule is because they will be able to point out to people outside the House that they have been vindicated on stances that they took. It could well be the case that the issuing of reports could vindicate the position of a Minister who had been arguing a certain point for a long time. However, we should not be afraid of that.
The most dangerous amendment in the Bill does not pertain to the five year rule but to the new powers given to Secretaries General to certify that a record relates to a “deliberative process” and is thereby exempt from release. It is crazy that we are giving this power to a Secretary General in each Department. What is the “deliberative process”? Virtually every scrap of paper, discussion and minute devoted to making a Government decision involves a deliberative process. If the Minister is suggesting that this will be exempted through the imposition of this legislation, it is foolish in the extreme. I ask that the reference to “deliberative process” be removed from the legislation immediately.
During the term of the last Government we found out at regular intervals the views of the Tax Advisory Group, which advised the Government on financial matters. Frequently, its advice was at odds with the Minister for Finance, which is healthy. It is good that Ministers decide to say “No” to the moguls in their Departments and state, “I am here, I am accountable, I will take the flak and make the decision.” This form of debate is not only helping democracy but is lending credence to the notion of political accountability. We should not shy away from it.
The certificate that a Secretary General could issue under the new regime could not be appealed to the Information Commissioner. Not only will one not get the scrap of paper that one wanted but one will not be able to appeal to the Information Commissioner if the concept of the “deliberative process” is used as an excuse for exemption by the Secretary General. That is far-fetched and represents a rowing back of the enlightened position we had arrived at in 1997 and to which Senator Quinn referred. Furthermore, it is not fair to the officials to give them this demi-god status in terms of decision making. It is wide open to abuse.
The mandatory fees for the processing of FOI requests are totally out of proportion to the spirit of the original Act. Of course there are costs, but there are considerable gains. In March 2002, PA Consulting Group presented the Minister for Finance with a report on the evaluation of the progress of the strategic management initiative. The consultants found that the degree of openness achieved under FOI is such that information is now routinely available to the public without any recourse to the Act whatsoever. Many officials do not need recourse to existing FOI provisions, such has been the change in the public service culture in five years.
Moreover, the report describes a strong sense among public servants that freedom of information has made their Department or Office more open in its dealings with customers and stakeholders. The introduction of a fee for freedom of information requests is a Government reaction to the media, rather than against individual requesters. The independent PA Consulting report found that public service culture had changed because the legislation was in place. Many middle and senior ranking civil servants have changed their attitudes because of the introduction of the Act. The imposition of mandatory fees is contrary to its spirit of openness and transparency.
I am absolutely opposed to the proposal not to make parliamentary briefing notes available under FOI. Frequently, such notes contain more information than answers to parliamentary questions. I spent five years in the Dáil where I found parliamentary questions to be the most important political device to keep the Government accountable. The oral question, in particular, ensures the effectiveness of Parliament because there is an easy flow between Minister and Opposition across the floor of the House. It is regressive to fail to make available under FOI the briefing notes which inform the answers to questions. I ask the Government to stop in its tracks and think about this.
Senator O'Meara was correct to observe that we would not have had to hold the various tribunals if Ministers had answered questions honestly in the House. The massive sums spent on tribunals could have been saved if there had been real accountability in terms of parliamentary replies. From his extensive agricultural experience, the Minister of State at the Department of Finance, Deputy Parlon, will be well aware of the truth of this in respect of the late Mr. Justice Hamilton's report on the beef industry, the cost of which was in the region of £38 million.
We have been told that all organisations have the right to decide how to organise their business and that the Government is no different. Its work is complex and in reaching decisions on important economic and social issues various alternatives must be examined. That is exactly my point. If the Government has the right to examine alternatives, why cannot the public be made aware of them? I ask the House to consider this question as well as the excellent contributions we heard from both sides. I hope the Government familiarises itself with the debate before it continues with its initiative to ram the Bill through the Houses of the Oireachtas. Mistakes will be made which will be left to another generation to sort out.
Mr. Dardis: When we discussed health matters during Private Members' Business last week I said we had heard much impressive thunder from the Opposition but had seen very little light. I said the same thing when discussing a previous Private Members' motion relating to agriculture. Once again, we are hearing a great deal of thunder.
Mr. Dardis: It is strange that we should be so exercised by this Bill when we were so little excited when we discussed matters which I regard as infinitely more important. That is not to say this issue is unimportant but we have been subjected to many red herrings and much distortion. I was on the Opposition side when the House considered Second and Committee Stages of the Freedom of Information Act 1997 which has been represented as nearly flawless. It has been said that it opened all doors but the freedom of information it introduced was not unfettered. The Bill before the House seeks to make quite a few improvements to the original legislation which is the reason opposition to it is concentrated on section 12.
A parliamentary guillotine occurs when consideration of a Bill consists of a vote on one question put from the Chair. No such restriction has been placed on Second Stage of this legislation. It is odd to hear the Opposition request consultation on a Bill which is narrow in its scope and deals with few, if contentious, matters. There were no calls for consultation on the recent Health Insurance and Local Government Bills.
Mr. Dardis: About what are we to consult? It is quite clear that in consultations the main bones of contention would be the ten year rule and the provisions relating to Secretaries General, matters on which we have heard very selective contributions. I share some of the concerns expressed by Senator Brian Hayes regarding the powers of Secretaries General to issue certificates preventing certain releases but the Bill is quite clear that these powers relate to material which has been established for the direct support of Government deliberations. This is much more restrictive than has been represented here. Oppositions Members have also failed to point out that these certificates must be revoked by a Secretary General once the deliberative processes concerned have ended.
Senator Brian Hayes brings a great degree of sanity and level-headedness to Seanad debates and I dispute that he said what we were told he did. It is my recollection that he accepted the Government need to act without reference to untrammelled freedom of information to be efficient in its workings. We keep hearing about rights but there are also responsibilities to be considered in this matter. The Government bears very onerous responsibilities which have to be discharged to the very best of its ability but its members must be free to discuss the issues of the day openly and vigorously within Cabinet. If a five year rule applied, it is possible the Government would have to provide information at the end of its life about decisions made at its outset. That could have profound consequences. There have to be limitations and those proposed in this legislation are acceptable. I agree with Senator Brian Hayes that we should examine the scope of the Bill between now and Committee Stage. I am sure that this will be done.
If we fail to implement this Bill, the effect will be to stymie the availability of information. No records will be kept. Everything would be done in smoke-filled rooms either by politicians or civil servants alone or by a combination of politicians and civil servants. If we did not enact the legislation, that would be the ultimate effect. That would be wrong and unhelpful and the accountability which is required would not be there. Some degree of restriction must be imposed. I believe the restriction is a prudent one and I do not believe it undermines the intention of the 1997 Act.
I accept that we had a culture of secrecy. I was a practising journalist for 30 years. I was not a member of the National Union of Journalists but was a member of the Guild of Agricultural Journalists of Ireland.
Mr. Dardis: That is bad journalism and there is a lot of it about. It has been suggested that those of us who are in public life do not want our salaries or expenses disclosed. Those are matters in the public domain. The information is available in the Institute of Public Administration yearbook so it is not even necessary to use freedom of information but one should be allowed to do so. It is of course the absolute right of citizens to find out—
Mr. Dardis: —information that is held about them. If the State holds information about me as a citizen, I should have the absolute right to that information. That is a different issue from the other issue which is getting a lot of attention.
Certain rights have attendant responsibilities. Section 25 of the Bill deals with records relating to the costing by a public body of a proposal of a political party. In my view this is much more restrictive than is being represented and I am prepared to see that contested. On the matter of a fee, I think it is quite appropriate to have a set fee. Other speakers have made the point that it is very different for a newspaper to seek information as against an individual and there should be a difference in treatment. The individual seeking a particular piece of personal information should be treated in a sympathetic manner. Vexatious persons making hundreds of requests for information can cause a very large liability for the State. The fee should be designed to discourage a succession of requests under freedom of information. I note that the Bill proposes to deal with vexatious and frivolous queries.
If this limited protection is not introduced, no records will be created. Senator Mansergh spoke earlier in the debate about the requirements of history as opposed to those of journalism or the need for current information. Historical records will not exist as they did in the past. We had a very secretive society up to as late as the 1970s which was a by-product of our imperial past. When we were governed by another jurisdiction it was considered very unsafe to allow the natives to have knowledge of certain matters because information was power and as the natives could not be trusted to govern themselves information had to be kept from their scrutiny.
Mr. Dardis: We do not have a guillotine. If we had a guillotine we would be out of this House at half past nine and we could resolve the issue with a question to the House. We do not have guillotines in the Seanad. When I was on the other side of the House I resisted them. We have not used them in this Government or the previous one. Matters are concluded by agreement of the House and not by a guillotine imposed by the Government.
Senator Dardis made a very interesting point which bears some deliberation. We have inherited the British way of doing things. Our Civil Service and system of government was given to us by the British and we have stuck pretty rigidly to it for 70 or 80 years. It is a system where civil servants talk to civil servants, civil servants talk to Ministers, Ministers sometimes talk to each other and eventually a decision comes down from Cabinet. The singular feature of all this talking is that it all happens – at least in theory – in private and in secret. In theory, the public is not meant to find out anything until 30 years after the event.
It is a system of government and a use of power that most of us recognise but few of us would seek to defend. Those in whose name power is wielded are kept in ignorance of the reasons why a particular decision was taken, about the lobbying for a decision or the pressure brought to bear on Ministers about a decision. Freedom of information has played its part in opening up our system of government. The committee system in these Houses has also played its part. Ten or 15 years ago there was no committee system and there was certainly no inquiry system in the committees of these Houses. I suspect that 15 years ago very few people would have known the names of the Secretaries General of the various Departments. They did not appear before committees or on television. They sat in their Departments and made decisions.
The Freedom of Information Act has significantly impacted on the culture of the Civil Service which is to the service's credit. It is appropriate that those of us on the Opposition side of the House acknowledge that. When I was the Labour Party spokesperson in the other House I went to the Department of Finance shortly after the introduction of the Act in 1997 with a specific query about corporation tax. I submitted a catch-all request looking for any records held by the Department in relation to corporation tax. A very senior civil servant invited me to meet him to talk about my request. He told me that there were two ways of dealing with my request: he could ask half a dozen executive officers to make a list of the records dealing with corporation tax which could take three or four days to complete; or I could tell him what I wanted to know and he would endeavour to answer the question. I informed him that I wanted to know whether the then Government – as it had promised to do in the manifesto it presented to the people – had done anything to reduce corporation tax to 10%. He said, “No” and that was the end of the conversation.
The point I am making is that I managed to obtain the information I wanted by asking a question which would not have been answered six months earlier. The civil servant would have felt, and rightly so, that it was beyond his call of duty to give me the information. He probably would have felt it improper to divulge that the Government had not attempted to give effect to a policy in the manifesto. The culture had changed, however, within that short period.
The Department of Finance and the Minister, Deputy McCreevy, are good examples of this. Shortly after the introduction of the Act, and following either the 1998 or 1999 budget, I and others requested a series of 30 or 40 papers on individual tax issues prepared by the tax strategy group. After some deliberation, the Department decided to provide them. This was good because it added a great deal to our knowledge of what happens pre-budget between Departments and within the Department of Finance. Each year since then, and outside the scope of the Act, the Department and Minister have decided to publish the papers of the tax strategy group on the Internet and to give them to the public in hard copy format. This would have been unthinkable five years ago.
I suspect this comes down, in part, to the personality of the Minister, Deputy McCreevy, because he does not have a difficulty with people knowing that certain things were entirely his idea. He does not have a problem with people knowing he has ignored the advice of officials. He does not have a problem with people knowing that officials from different Departments took different views. While I disagree with the Minister on many issues, he is correct in this instance. People have got used to that fact. Those of us in Opposition, who might have attempted initially to score a few political points on the basis of that disagreement, have long since stopped trying to do so because it does not wash. The public have become used to it and regard it, quite rightly, as simply a healthy expression of difference.
Like others, I am not sure that the extension from five years to ten is entirely wrong. I am sure, however, that several of the other measures introduced to broaden what is, in effect, a Government paper are fundamentally wrong. They will also be open to abuse. The notion, for example, that in future any communication between Ministers is to be considered a Government memorandum is in my view potentially extremely dangerous. Governments should act collectively. Once a decision is taken at Cabinet, we expect Government Ministers to defend it. It is part of the doctrine of collective responsibility and it is enshrined in our Constitution. None of us expect that each Minister or each official will have agreed at every point during a process or that they will have agreed everything three weeks, three months or three years before entering into Government. That is a fundamentally different issue.
What danger is there to democracy or what problem is there with setting out, in precise form – as is the case with Government memoranda – the pros and cons of certain proposals, the views of particular Departments or the views of particular Ministers? What is the danger to public debate? Surely it is a positive element and something any healthy democracy would encourage. I hope Members will forgive me for being party political, but there is an element of the Government getting comfortable here.
When one has been in Government for six or seven years – I know the present Minister of State has not – it becomes that little bit more tedious to have to come before the House. The Minister of State will find that he will be doing a lot of deputising for his senior Minister in years to come because the latter will clearly be tired not only of the Seanad, but also of the Lower House. It becomes tedious to have to go to RTE, therefore, it will be even more difficult to get him to do that. All the checks and balances which most of us regard as being part of the business of Government become merely tedious. This has clearly happened to the Government. I suspect the Bill is yet another indication of that tedium with process because that process stops one from governing properly, quickly and effectively, which is, no doubt, what most Ministers believe they are doing.
Senator Dardis, on behalf of the Progressive Democrats, stated that people have rights and responsibilities and that a balance must be struck. There are many balances – some of us would argue there are too many – in the 1997 Act. Anything that is commercially sensitive, for example, can be excluded. This has frequently been interpreted to mean that anything which impacts on a semi-State company or public body with a commercial remit is almost automatically excluded. For example, an inquiry into Aer Lingus would almost certainly be excluded because the information would be commercially sensitive. This is pushing matters a little far, particularly when a company is in public ownership, has a public remit and, in many instances, a universal service obligation. That is one example of protection from information which has been extended above and beyond what is required.
The most important element of the entire process is the so-called deliberative process. This is a very difficult notion to pin down. Some Departments consider a deliberative process to be simply a decision. Some consider it to be a campaign and others a war. I have on occasion requested information under the Act about correspondence which took place during the so-called Estimates campaign. Once that campaign is over and the budget and Estimates have been presented, some Departments will provide the information to which I refer. Others, however, will say that they did not get it this year, that they might obtain it next year and that they will present the same arguments at that stage and, therefore, the deliberative process is not over.
As I understand it, this is the view among the majority of Government Departments and it is unacceptable. As things stand, it is possible to appeal a decision of that nature on the basis that it is not in the public interest. It must be demonstrated by the Secretary General, or whoever is making the decision, that it was in the public interest to deprive the public of particular information. There is a quite insidious amendment in the Bill which will remove that aspect. Effectively, there is now no objective test and no appeal. It will simply be necessary for a Secretary General of a Department to sign a certificate stating that the deliberative process is continuing and that certificate cannot be questioned. The Secretary General is meant to issue a certificate when the deliberative process is over, but there is no guarantee he or she will do so. The result is that if anything is under consideration in any public body – even though the section refers to Departments of State – it will be possible for the Secretary General to simply sign a piece of paper saying that the deliberative process is ongoing and, thus, protect entire swathes of information.
The amendment, which takes up approximately six lines of text in the Bill, could exclude a huge number of requests made under the existing Act, which is unacceptable. It is also fair to point out that most of what comes under the Department of Justice, Equality and Law Reform is already excluded. In the process leading up to the formulation of the Act in 1997, the Department of Justice, Equality and Law Reform and the Department of Defence argued they should be entitled to an exclusion because everything they did was sensitive. In fairness to the former Minister of State, Eithne Fitzgerald, they were not allowed to claim that class exemption, so to speak. When they claimed that a particular item of information was sensitive from the point of view of security, international affairs or whatever, they were required to show that it was in the public interest to retain it. We are moving away from that position and, therefore, it will be possible to give these Departments a class exemption so they can basically say to anyone who seeks information that they will not get it.
The issue of fees, on which I do not have a strong view, is interesting. If people were simply being levied with a €20 fee, it is not something about which I would become particularly upset. However, there will be a difficulty where a person must pay €20 for the first application. If one must make several applications, obviously, there will be multiple charges. If one appeals to the Department, one must pay again and, if one appeals to the commissioner, one must pay again. My understanding of the current system is that only newspapers are asked to pay large fees, which is reasonable. They probably go in for the most wide-ranging of applications and, if it is necessary to oblige civil servants to do a huge amount of work, it is reasonable to get bodies such as newspapers to pay a reasonable fee. I am not particularly exercised by the €20 charge, though if it militated against people making applications or requests it should be looked at again.
I endorse what has been said about the way the high-level review came about. I believe that civil servants have accommodated themselves to this. Therefore, I am not sure we can point the finger at five Secretaries General and ask what else we could expect. I suspect that word came from on high, though we do not know that because we do not have the background papers, and that direction and advice to the Secretaries General came from their ministerial masters. Most Secretaries General have got used to the Act, even if it is not necessarily something they would have proposed. We should look elsewhere to criticise.
To publish a Bill a few days ago and to bring it into the House today and effectively impose a guillotine is not the right way to do things. To do so in the context of a Freedom of Information Act is particularly unfortunate. Rather than restricting information we should be looking at ways to extend the right to information. One anomaly which is still on the Statute Book is the Official Secrets Act. Some provisions of that Act run contrary to the spirit of the Freedom of Information Act.
There are terms and conditions in the average civil servant's contract of employment which are also contrary to the spirit of the freedom of information Act. It is still the case that a civil servant has to sign a paper committing him or her to respect the Official Secrets Act. That paper spells out what a civil servant may or may not say and warns against casual conversation during the course of which a person might reveal something which is tantamount to an official secret. An official secret is extremely widely defined in the Act and effectively comes down to whatever a person's immediate boss considers should be secret. This is a strong weapon in the hands of senior civil servants and Ministers in ensuring that civil servants remain mum and work in a spirit that is clearly contrary to the notion of free discussion and freedom of information. That provision in a civil servant's contract should be looked as a matter of urgency. Some effort has been made in the context of SMI but it has not gone far enough.
What are the arrangements for Committee Stage of this Bill? Senator O'Toole suggested to me, and he has greater expertise than I in the matter of racing, that not only was the senior Minister likely to be in Cheltenham next week but that the Minister of State might also be there.
Mr. McDowell: Maybe so. I did not intend to be frivolous this morning but my point is that it is important we have a serious Committee Stage if we are taking Second Stage in the manner in which we are. We will not have a serious Committee Stage if the senior Minister and the Minister of State are not here to deal with it. What is the point in our coming in and wasting our breath if somebody from another Department is sent in to effectively say “No” to everything? We have had that experience in the House recently. I will not mention the particular Minister of State because he, I suppose, was as much imposed upon as we were. It is dispiriting and is a discourtesy to the House if that is what happens next week. Perhaps I am casting aspersions unfairly on the Minister and he does intend to stay through the week with us.
One of the provisions in the Bill relates to the length of time for making a decision. The legislation allows the time to be lengthened from three months to four months. This is notional. In practice it takes a good deal longer than that for most decisions to be made by Mr. Murphy and the appeals commission. The practice is that as the limit approaches a person gets a phone call from the commissioner's office and is told they have not had time to look at it and asked if he would mind extending the time. If the person says “No” the regrettable result is that the appeal is refused so the person has really no alternative but to agree.
It is not at all unusual for appeals to take several years to be sorted out and for a decision to be made. I do not blame the commissioner for that. For a long time he did not have enough staff but that situation has improved recently. For the system to work effectively a person needs to be sure that if he puts in a request now he will not still be looking at fighting it out in two years' time. We need to shorten rather than lengthen the time involved and perhaps we should look to provide for an absolute limit on the time it will take to determine an appeal.
I am sorry we have not been able to take a more constructive approach to this Bill. There are some good things in the Bill but there are also improvements that could be made. I hope Senator Dardis is right that there will be a spirit of constructive contribution next week, that we will have a serious Committee Stage and that we will have the opportunity to make our imprint on it.
To return to my first point, we made a huge amount of progress in the past ten years in the opening up of Government and in making those with real power accountable to those in whose name the power is wielded. This Bill is a retrograde one when we consider that.
Mr. Bannon: I am one of those in the House who did not get a copy of this Bill until I arrived here this morning, due to the deteriorating postal services in rural Ireland which should be looked into. I am disappointed by the fast tracking of this Bill through the House.
Five years after the passing of the initial freedom of information legislation there is clearly a need for review. However, the proposals by Government, as outlined in the Freedom of Information (Amendment) Bill 2003, are a serious attack on the rights of citizens and on democracy itself. What is being put before us today contravenes the notion of freedom of information. We are told that the recommendations are based on a report commissioned by the Government from a review group of top officials from the Civil Service. We are also told that the Government accepted all its recommendations.
A disturbing level of secrecy surrounds this group and its report. Who are these top civil servants? What was their brief? Was undue pressure brought to bear on them? Why were those who will be most affected by the Bill, such as the NUJ or the Information Commissioner, not consulted in regard to these proposals? All these questions and all the doubts that this Bill raises must be answered and addressed.
While this Bill proposes to amend the Freedom of Information Act, 1997, these amendments are retrogressive rather than progressive. As it stands the proposed amendments are designed to inhibit and prevent essential access to important information. The proposed changes will increase the exemption period for Cabinet records from five to ten years and will ensure that communications between Ministers on matters relating to Government business are protected. Is the Government telling us that its potential embarrassment is more important than people's right to information? The changes proposed will also protect documents relating to parliamentary questions, tribunals and international relations.
The introduction of up-front fees, for people requesting information under the Act, to cover administrative costs is another tax by stealth. This is something we have become used to since this Government returned to power. This Government has undoubtedly been in trouble since its re-election last summer.
With the proposed ten-year lapse before Cabinet papers are released, no Fianna Fáil or Progressive Democrats documents will be released before the next general election. Is the Government now asking us, under the guise of legislation, to assist it in electioneering? Broken promises bought one election. Are we now to assist the future aspirations of the Government by agreeing to the suppression of unwelcome facts and figures?
Mr. Bannon: Crucially, requests to see correspondence between Ministers will be refused in future if Departments rule that publication would affect the “free exchange of views between Ministers.” This would have prevented publication last year of the Minister for Finance, Deputy McCreevy's complaints to the Minister for Health and Children, Deputy Martin, about the latter's spending. Under the newly envisaged control of information we would not have heard last weekend of the Minister for Health and Children's lavish spending to the tune of €500,000 on the refurbishment of his office at Hawkins House, at a time when it is proposed that the Department will be moved out of that building.
Mr. Bannon: What is the Government trying to conceal? Ministers are spending money in every part of the city on the refurbishment of their offices, looking after facilities for themselves when people are waiting three, four and five days on trolleys in hospitals throughout the country.
Mr. Bannon: It is unbelievable that a Government could attempt to limit the electorate's access to information in order to avoid further political embarrassment. The ready availability of and access to official information provided by and for the people and paid for by the taxpayer is not a privilege accorded by Government – it is a fundamental right of modern democracy.
The Freedom of Information Act 1997 brought Ireland into line with other common law jurisdictions, although somewhat later than most. Australia, Canada and New Zealand, which, like Ireland have a Westminster model of government, have had equivalent legislation in place since 1982 and they were not burdened in the way our taxpayers have been over the past decade and a half with tribunal after tribunal. No one is repaying the cost of those to the State. It has been shown that people have been involved in wrongdoing but they have not been prosecuted or returned what is owed to the State.
The erosion of the powers granted by this Act will have repercussions that will extend from central Government to local authorities. Every department, health board etc. will operate behind the closed doors of this amended Act. While on the one hand the Government is attempting to curb access to what it perceives as sensitive material, on the other hand it is proposing to charge for the information it is prepared to release. In a further erosion of the citizens' right to information, the Government is proposing as yet undetermined charges for future applications under the Act.
The Minister should remember that it is pay-back time in regard to the illegal planning charges that were found unconstitutional by Europe. The Government seems to have learned nothing from the debacle surrounding the imposition of planning objection fees and is again apparently trying to discourage, inhibit and prevent what should be an automatic right for every citizen.
As it stands, the message being sent out by this Bill is that the Government will do anything to prevent material which is potentially embarrassing being exposed to the critical light of day. Big Daddy is watching you, but on no account are you to watch big Daddy is the new definition of democracy.
Fine Gael will use every opportunity available to it to stop this dishonest, untruthful Fianna Fáil and Progressive Democrats Government from ramming this Bill through the Oireachtas. Senator Minihan spoke on behalf of the Progressive Democrats. I wish that he, the Moses of that party, would take his team down to the Liffey and have them washed.
Mr. Bannon: The founding father of the Progressive Democrats must be sick to the teeth with the cynical and hypocritical move by the Tánaiste to smash and grab accountability and transparency to the people which her party pretended to protect.
Mr. Bannon: They are the progressive dictators of Irish society. They are abusing their powers and hoodwinking the citizens. They are standing idly by and allowing the public to be insulted by some of the contents of the Bill. The proposed amendment to the Act is a bad one that will allow corruption back into politics before the skeletons of the corrupt Fianna Fáil Governments of the past are burned. Let the people be aware that Fianna Fáil have the plague of corruption and the Progressive Democrats have caught it this evening.
Mr. O'Toole: As I said on the Order of Business today, this legislation is Sir Humphrey's revenge. By any standards – and I take a balanced view in regard to the legislation – the Freedom of Information Act was in need of amendment but this was precisely the way not to do it. This Bill is a mistake and we will rue the day that it is passed.
The Bill was described to me by a leading bureaucrat as “very effective but quite shameless” in terms of what it does. What is proposed is impenetrable. In 1998 when the original Act was going through this House I was appalled by, and opposed to the idea that Cabinet papers would be released after five years. It was wrong and people got carried away with their own enthusiasm at the time. I believe that some people have taken advantage of that in order to support a lazy approach to things. Provided that the person seeking information is protected, there is no reason why a scale of charges could not be introduced to prevent abuse. I was prepared to look at the Bill in regard to those two issues. When I heard that these matters were being discussed I looked back at the Act some weeks ago and came to the conclusion that it made sense to discuss these matters and have some approach to dealing with them but that is where it begins and ends.
The legislation is flawed and we will come to be ashamed of it. For the first time ever it gives statutory basis to the old mushroom policy of keeping them in the dark and throwing whatever they want at them. It is like constructing a Nissen hut to keep the rest of us in the dark while the Government is outside. It is the opposite to everything that was claimed at the time that the legislation would be, in terms of openness and transparency.
I stood here five years ago and said I was not too taken with the idea of openness and transparency. I am on the record in this regard. At the time, I said that the word “transparent” was one used in my part of the country to euphemistically describe people who were not that bright. I never thought it was a great idea to be transparent and to go around without an unspoken thought. However, this legislation was in operation and was effective. It needed amendment but this measure atomises it, destroys its spirit and takes us very far back.
We are moving regressively. This legislation is closer to Freemasonry than to open, modern, democratic government. It is all about secrecy at the top. One of the principal arguments in favour of the FOI Act was that decisions would be taken at a lower level and that the information officer in a Department would not be at the top of the structure. Today's amendment gives decision making power to the people in the firing line. This does not fit in with the philosophy of the Minister of State, Deputy Parlon's party. It would be difficult to get a majority for this measure on the Government side of the House if Members were allowed to vote for what they wanted. There might be support for the confidentiality measures and perhaps some aspects of charging but there would not be support for other sections.
The Bill is an anachronism. At a time when we are moving towards more open government and more accessibility to information this amounts to a closing down which cannot be right. The Bill encourages the cynics who will look at Government, these Houses and politicians and say, “This is more of the same. They tell us nothing.” One can well see how they would react in that way.
The Bill resonates of Stalinism and central control. For many years I listened to Fianna Fáil talking about the democratic centralism of The Workers' Party. This Bill pulls everything back to the centre instead of moving out. It is the opposite of what is happening in Europe and what we were talking about when we discussed the future of Europe this evening. It is a move back from all those principles. This is demonstrated in the tone of the accompanying memorandum when it states, “In contrast to the current position whereby such a release must be considered contrary to the public interest.”. There are circumstances in which Members on this side of the House could support some of the proposals but we cannot support the thrust of this legislation. One could not support a single section of it as it is written. If changes were proposed which everyone could discuss and have a view on, we could move forward.
When we discussed the Freedom of Information Bill five years ago, Deputy John Bruton referred to government behind a transparent wall. I did not agree with those who thought that would be a good idea but that was the modern thinking at the time. Some suggested that the wall might be translucent rather than transparent in order that the light would at least be let in. We spoke of lifting the veil of secrecy. Instead of lifting a veil of secrecy we are now building an iron curtain which is regressive. It is the kind of thing in eastern Europe about which we complained for many years. We spoke of a lack of access to information which is power and freedom. It frees people and allows them a greater understanding. All thinking people will oppose this measure. We will look back on the enactment of this legislation and say it was an appalling decision.
Consultation is a key part of decision making, whether in business, the marketplace or politics. I have heard the Minister of State say this in another context. I am not talking about co-government. Governments must still make decisions which has not happened in this case. The Leader referred to the five people who formed the review group. I know all five and hold them in the highest regard.
Mr. O'Toole: I also know how brilliantly they do their work but this was not a job for them. The users were not consulted. A users' group was set up to monitor the operation of the legislation but the last time it met was in 1999 or 2000. No one asked it about this legislation. Will the Minister of State tell me the correct title of the group because I would like to table an amendment regarding it on Committee Stage? We also appointed an Information Commissioner. How can one justify amending the primary legislation when the person, the fulcrum of the operation of the legislation, has not been asked for a view? The man concerned has worked at the most senior level of the Civil Service and is now the Ombudsman and the Information Commissioner. Why was he not asked? The reason is simple. Like all politicians, I do not ask a question unless I know what the answer will be. The Information Commissioner would not have given the answer the Government was looking for and so was not asked. The Minister of State knows how these things work. He could not justify what has happened. If he was asked by a constituent the reason the Information Commissioner was not consulted, he would say, “I do not know,” because he is an honest man.
There has been no consultation with any strand of civic society. The Taoiseach is in Northern Ireland tonight doing much hard work to maintain an agreement which establishes the importance of civic society on this island. We are discussing an issue which makes civic society important. It is one of the main bridges between civic society and the operation of Government. Civic society, whatever Government thinks that might be, was not consulted. Who was asked? The answer is those on the receiving end of freedom of information requests. That is a very one sided approach which does not bear up to any kind of scrutiny and is not something with which the Minister of State could live.
If, in the opinion of the head, granting a request would require the retrieval of such a number of records or an examination of such a kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the public body.
Of course, a request disrupts the work. As every Member of the Oireachtas and civil servant knows, it is an utter nuisance that meddlesome politicians can ask parliamentary questions week after week, upsetting the business of State. One can imagine civil servants saying, “We could be getting on and doing stuff if they did not ask us all these questions. We have to prepare answers, give information, explain ourselves and defend positions. This is an awful mess and could we stop it, as quickly as possible?” That is the kind of trouble that a Bill such as this causes and that is what we do not want. It does not bear scrutiny.
Let us look at the next part of it: “If the request, in the opinion of the head, is frivolous or vexatious or if it forms a pattern of manifestly unreasonable requests.” I firmly agree that if somebody uses these provisions for frivolous or vexatious purposes they should not be given the time of day. If somebody asked me a question which would embarrass me if I were to answer it publicly, then I would consider it unreasonable that I had been made to answer that question. It is a subjective judgment of one person. It is utterly unreasonable. Surely it is unreasonable for me to have to answer a question that might threaten my promotion prospects or show me in a poor public light or show my Department to have acted in a way that was not great. It is unreasonable; it is a bit troublesome.
This turns the Act on its head. This is what it was all about in the first place. It was to reassure people that Departments and arms of the State were acting reasonably or otherwise to expose unreasonable action, whichever it was. That is what it was set up to do. Now it is being used as a reason not to make it work. Did somebody somewhere hold the view that people writing in questions to an arm of the State would in some sense not be troublesome? Of course it is troublesome and unreasonable.
If I have to produce a policy document for the Minister of State by next Friday and I am suddenly hit with having to answer three or four questions from a meddlesome consumer or a meddlesome voter or an unreasonable person from the back end of somewhere else, why should I waste my time answering questions for them when I need to work on the big policy jobs for my Minister? Of course, it is unreasonable if one looks at it from that point of view but it is utterly unreasonable as well for the person who asked the question that they should not get an answer.
In regard to section 12 of the Bill, I do not know where to start. What might not be available any more is a communication “between two or more members of the Government relating to a matter that is under consideration by the Government”. Can the Minister give me five examples of what would not be considered by Government? I would like to know what the Government does not talk about. I thought it was running the country. What are the issues that are ruled out? What could not or would not be considered by Government? Does not the Government deal with every piece of legislation that comes through either House? Does not it deal with every policy document? Is not every significant decision taken by any Department cleared by Government? Anything like that is suddenly ruled out in its broad terms, given the way this legislation is framed.
The section continues as follows “between two or more such members who form .. a group of such members to which a matter has been delegated by the Government”. Any group with Government members on it now becomes privileged.
John Healy would turn in his grave at the next part. In paragraph (e) there is a new definition of “Government”. For me “Government” is defined in the Constitution as having between seven and 15 members. For the purpose of this Act, “Government” includes a committee of the Government and a committee of officials. We used to hear jokes for years about the permanent Government. They were right. This is it – we have made them the permanent Government. The bureaucrats have taken over. They are now part of the permanent Government of the State. They are in there and are privileged. It is the line we used to say would never happen. It is a total close down. It is an absolute joke.
It also includes members of Government and a special adviser. Special advisers are now part of Government and are covered. Can the Minister of State imagine if he was in Opposition what his party would say about this? I am another oddity on this side of the House in that I actually agree with special advisers. Most people when they are out of Government are opposed to them. Special advisers and programme managers are a good idea and make the Government work well. However, I see no reason why special advisers sitting with a Government should suddenly be protected by confidentiality and be ruled out – a special adviser within the meaning of section 19 of the Ethics Act. It does not make any sense, it is fundamentally wrong. It goes against everything we set out to do and it certainly puts a level of protection on officials which was never intended. It started off with the protection of Government and went on to protection between two members of Government and to a committee of Government. I cannot understand some of this. It now extends to any committee which includes people outside the members of Government. A committee of officials is considered to be Government. It is not just civil servants.
Mr. O'Toole: I am sorry, I did not start at 10.27 p.m. Senator Bannon was still speaking at 10.28 p.m. I say that for the record. I did not get on my feet until much nearer 10.30 p.m. For once I wrote it down because I felt that side of the House was trying to push things on too rapidly. I understand the Chair is working on the basis of advice.
Mr. O'Toole: No, I will get some back now. In terms of the protection of documents I want the Minister of State to try to listen to this with a warped mind, which he does not have, and see what he could do with it. The Bill states:
A document for a member of Government, the Attorney General, the Minister of State, the Secretary of the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business.
A document which was not produced necessarily or solely for the purposes of Government but which is now being used for Government suddenly becomes protected. If I have a document in my hand about which some pesky member of the public may seek information, I put it as part of the Government circuit and it is suddenly outside out of court.
Although I do not have time to develop it, section 13 is full of holes. It is incorrect and it does not make sense. Section 13(1A)(c) states that a certificate under this subsection shall be final. That is not correct. The previous two subparagraphs refer to certificates which can be revoked. That is incorrect. It is unclear, confusing and it does not make sense. The section also refers to matters relating to the deliberative process of a Department. That is not what it is intended to do. It is talking about a matter that is under the deliberative process but it is written down as “the deliberative processes”. The deliberative processes is the way the Department works and it has nothing to do with issues. Paragraphs (a), (b) and (c) of section 13 are confusing, contradictory and will not work. This movement away from the senior official is unacceptable.
This Bill is a step backwards, it is regressive. Every section of it deserves to be opposed. Every section is an embarrassment to the Minister of State and any right-thinking person. Any person who looks at this with an open mind will be opposed to it. I do not normally take such a straight stand on those kinds of issues. I am prepared to listen to reason on any argument. I try to look at issues not from a biased viewpoint. This is bad and unclear legislation. It is an anachronism and legislation we should be ashamed of. It is shameful that we are trying to push this Bill through. I ask the Government and the Minister of State's party to look at it closely. I ask a few members of the Minister of State's party to advise the leadership of the party what they think of it as ordinary people in the privacy of the party rooms.
Mr. McCarthy: It is a sad day for democracy when we have to come into the Upper House of the national Parliament to debate what it is intended to leave of the Freedom of Information Act. It is inherently contradictory in many respects, not least when one studies the Progressive Democrats' election campaign. We will never forget the sight of a particular candidate for that party who has been attributed with its success hanging out of trees like Tarzan, hanging up posters and warning us about the ills of a Fianna Fáil Administration and that the worst thing for democracy would be if Fianna Fáil got into Government on its own. He told people to vote for the Progressive Democrats which would be Fianna Fáil's watchdog. It is not even 12 months since Tarzan climbed up the pole somewhere around O'Connell Street and attempted to explain, in colourful detail, the ills of Fianna Fáil, yet today the Progressive Democrats are supporting an amendment to the Freedom of Information Act. All evening, it has denied it is guilty of guillotining the legislation but in this case, it is guilty of boning and rolling the Freedom of Information Act and throwing the remains to the dogs to eat.
The manner in which the legislation was introduced last Friday leaves a lot to be desired. It was known that this and the other House would not sit on Friday and that the Members of both Houses would return to their respective constituencies on Thursday evening. That meant that most of us received the Bill yesterday morning by post, although some of us did not receive it until we arrived home yesterday evening. We have not been given an appropriate amount of time to study the Bill in the detail required in order to debate it in one evening. It is unfair on Members who have been on the road since early morning and on the staff of this House who must remain here until all hours of the morning to satisfy some smug eagerness on the part of the Government which will say it is not guillotining the legislation but is giving us ample time to debate it. We will be walking around this House at 2 a.m. or 3 a.m. like zombies wondering why this debate could not have been adjourned this evening to resume tomorrow and perhaps on Thursday.
One of the most disappointing aspects surrounding this amending legislation is that the Government failed to embark on any form of consultation. I was going to say meaningful consultation but there was no consultation at all. Senator O'Toole rightly pointed out that the person central to the Freedom of Information Act, the Information Commissioner, did not even receive a telephone call or a letter asking him for his opinion on what was introduced last Friday. It is a sad facet of any Administration that it would not bother to consult the people most affected by the Freedom of Information Act.
It was more than disappointing to listen to one Minister on Radio One yesterday. I will not name the Minister who more or less blamed the five civil servants. The Minister in question avoided providing real answers and went on to pontificate about the five civil servants. I did not hear any contribution this evening which cast any aspersions on any civil servant, let alone the five who drafted this. To further reinforce that point, there are provisions in the Bill which were not even proposed by those five senior civil servants. That begs the question, who is driving this Bill? What is the Government's fear? Is it trying to hide something? Is there some phobia about the Freedom of Information Act which would cause a member of the Government to break out in a rash if asked questions? What is wrong with a citizen making an application under the Freedom of Information Act to elicit information?
We have preached in recent years about accountability, transparency and openness. We all know there was a small number of people who corrupted politics in this country which has led, in no small way, to cynicism on the part of the electorate. That, in turn, has had an effect on the polls in that fewer people are turning out on polling day no matter what the vote is on. All this may be attributed to that cynicism. We have also preached about the reasons for the success of the tribunals and why it was important that they were successful. The Houses of the Oireachtas set up the tribunals in an attempt to give politics a good name and drag it out of the dirt.
This amending legislation goes against the very principles about which some people have been lecturing in recent years. It will not, in any way, ease the cynicism which exists and, if anything, will add to it. Has the Government not learned anything from the tribunals over the past six or seven years? If it has learned one thing, it should have been that the people are entitled to accountability and openness. Those principles were promised on many occasions by this Administration and others. That is why this Bill is a major retrograde step for Irish politics. It grinds democracy into the ground.
We have seen other such legislation in this House recently. The Protection of the Environment Bill denigrates the role of members of local authorities in that it hands responsibility to set charges for waste collection over to county managers. Surely, this Bill ranks as one of the most insulting which has come before the House since the last Seanad election. It denigrates the role of democracy and, in many ways, reflects what happened in the House a few weeks ago when the Protection of the Environment Bill was introduced.
I wish to outline a number of issues in regard to this Bill. The proposals were devised by insiders, the Government and a team of top civil servants, with the specific aim of excluding everybody else. Nobody else had hand, act or part in the drafting of this legislation. The Minister for Finance preached about the system in operation in Canada but what he is doing is in complete contrast with what is being done in Canada and Australia and goes against the spirit and the letter of Freedom of Information Act.
The new restrictions are not about protecting security material or about protecting genuinely sensitive information but about protecting the Government and civil servants from political embarrassment. Surely if there is an issue about which to be embarrassed, it would be more brave for an individual to come out with their hands held up high instead of formulating this quick fix solution denigrating what was a perfectly democratic Act in order to cover up their own misgivings. I am sure the legislation was not perfect and that we should have reviewed it. I believe a commitment was given by the rainbow Government when the Act was introduced that after a certain number of years, it would be reviewed. That review did not take place. This Government has reneged on a promise given to this House and that is a sad and pathetic development in any democracy.
I wish to touch on the section of the Bill dealing with briefing for parliamentary questions. Once again this allows Ministers to shelter behind the defence that someone did not ask the right question and so on and basically word their responses to parliamentary questions in a way which protects them from the truth. The late Mr. Justice Hamilton commented that if Ministers had answered questions clearly and truthfully and in their totality, there would have been no need to expend £35 million of taxpayers' money on the beef tribunal. That is the greatest insult to the intelligence of any nation.
Why do we now have a section, the purpose of which is to provide a screen for the Minister to hide behind when asked to be accountable for his Department and budget and to follow through on that responsibility? I cannot figure out the argument that is being made. The only logical argument is that the Government wants to hide behind a revised form of the Freedom of Information Act. Is there any length to which it will not go to avoid the truth and dig holes in which to bury itself when people justifiably ask it to be accountable under the Freedom of Information Act? There is nothing flippant about this question.
Another part of the legislation which is particularly worrying relates to charging for appeals. The appeals process was set up because of well grounded fears that in the absence of an appeals system the interpretation of the Act would always err on the side of a refusal, even to the point of refusing information where the Act made it crystal clear that it should be made available. That has been the experience in relation to access to information on environmental regulations. Here again, we have a system under which people will be charged for appeals. If that is not running for cover, I do not know what is.
I know from recent debates that the Government does not receive constructive criticism very well. However, the Labour Party has produced its own Bill entitled the Freedom of Information (Amendment) (No. 2) Bill 2003. I earnestly request the Minister of State to go back and ask the Government to seriously consider the salient points in this Bill. I do not believe in being reactive in a situation like this. We are being proactive. That gives the Government no grounds for saying we are complaining but not coming up with any proposals. We have produced a Bill and would like to know what part of it interests the Minister. Is he favourably disposed to accepting constructive contributions from other Members of this House in order to at least lessen the damage inflicted upon a perfectly good Act which espoused the principles of democracy?
It would be a pity if anyone believed the tripe expounded on the airwaves in recent days about the reason this legislation is being introduced. The reality is that the extent to which this Administration has gone in order to cover up its dealings defies logic. What, for example, will be the response if somebody wants to find out how much money the Taoiseach squandered on his pet project in Abbotstown? What will be the response if an application is made under the Freedom of Information Act for information as to what was behind the shady deal the Government cobbled up with the religious orders in a smoke-filled room one long night somewhere in Government Buildings which has exposed taxpayers to massive expenditure and untold litigation? Surely the ordinary people, Joe and Mary Soap, are entitled to access that information. Joe and Mary Soap would not strike a chord with this Administration because when the Minister for Finance, Deputy McCreevy, was introducing his budget – the one with two massive horns and a tail – he referred to Duncans, Áines, Chloes and Keiths, all modern day names, although it was to Tom, Mary and Joe whom Ministers used to refer. If further simplification is required, I will be more than happy to give it.
There is an onus on us to find out who is responsible for driving this legislation, and I hope the Minister will tell us in his response. More important, was this legislation unofficially included in the programme for Government? We were given a commitment by the Leader of the House who, I believe, fervently believed her own answer when she told us there were no plans to begin tinkering with the Freedom of Information Act. We were told our fears were unfounded. One wonders at the speed at which this Bill has arrived and the relatively short notice given. It would lead any reasonable, thinking person to the conclusion that this was not an idea thought of one week ago or a month or two ago. One must, therefore, ask the Minister of State, who is here representing the Government, whether this legislation was unofficially included in the programme for Government.
We are all aware that the dual mandate, although not in the programme for Government, was unofficially included in it. That, by extension, leads me to form the opinion that there is a whole raft of issues that the Government wishes to put through which would not be palatable in a democracy, certainly to the ordinary people who went to the polls last summer and voted on the basis of a plethora of lies from the Administration. How many members of the current Administration campaigned on the doorsteps in the general election, explaining the good points about democracy and trying to persuade people to exercise their democratic franchise while hidden up their sleeves was this lurid legislation which will do untold damage to the body politic and in no way reduce cynicism, increase public participation in the political system or encourage people to exercise the democratic franchise?
In the past five or six years we have experienced tribunals and their effects in terms of cost and the tragic way in which the political system was abused. One saving grace and justification for expending millions of euro of taxpayers' money was that the public could hold up to a certain degree of light those responsible for this. While it is an unfortunate facet of any democracy, at least it was there and built in. It at least subscribes to the notion that people have a right to know, that they are entitled to ask questions and receive answers. It is incredible that the Government is now attempting to introduce a shroud of secrecy, of which any dictator would be proud. It is attempting to duck, dodge and hide from the questions and real issues which motivate people. It is a particularly sad day for an Administration elected mainly on two platforms, the prosperity of the economy which was a lie, and the small paddle boat being paddled by a few poodles whom we have since discovered were not particularly serious when they promised they would be the watchdogs of this Administration. I am very surprised that the Progressive Democrats have taken the stance they have on this issue. Senator O'Toole raised an important issue when he asked what their personal opinion would be if they were to make up their own minds on this issue. I believe it would be much different.
History will not forgive Fianna Fáil and the Progressive Democrats for this blatant act of democratic treachery. Any Government that has gone as far as this one in attempting to choke democracy should not and will not be looked on lightly.
Mr. McHugh: I welcome the Minister of State to the House. I wish to address the direction democracy is taking in our society. I remember arriving in politics at a local democratic level in 1999. I was told at that time never to ask a question in the local chamber without first knowing the answer to it, which I may have done previously in my naiveté. The person who told me that was suggesting that the best tool in any political or democratic field is information. It is the biggest weapon and one of the most important instruments in the political system.
Power is the exercise of control, influence and authority. Local democracy has to start at a grass roots level and that must include community involvement and participation by local people. In 1998-1999, people in this category felt they were outside the decision making process. This led to a situation where the Government began talking the language of local development groups, which was a positive development. The 2000 White Paper regarding the Government's vision of society spoke of the ability of the voluntary and community sector to provide channels for active involvement, and the participation of citizens in democracy. That is the language the community and voluntary sector heard from politicians and the Taoiseach at that time.
The discussion of better local government, decentralisation, bringing power closer to the people, getting people involved and greater transparency in Government and local democracy was the language our society needed to hear. Prior to that, Irish society was hoodwinked by politicians. I have no problem saying that because politicians kept power and information for themselves; they told people they would provide medical cards and get grants for house extensions, and that they would deliver for them. The people, therefore, became dependent on politicians. That hoodwinking had a detrimental impact on our society prior to 1999 when the new use of language began.
I commend the Taoiseach on his use of language and his vision in regard to the information society. He spoke of e-democracy, active citizenship and transparency through e-government. The latter was defined as electronic government, where people could access any information they wanted by computer. The Taoiseach believed that such a mechanism was the way forward for our society.
That mechanism was not rocket science or novel thinking by the Government. It was a European model of regional democracy which came from countries such as Sweden, Denmark and Finland, which entered the European Union in 1995. Every country in Europe was talking about bringing power closer to citizens. That came from the active involvement of Fine Gael in European affairs. Such language was used by our ambassadors in Europe and has been brought to the fore in Ireland. Whether referring to better local government, local democracy, the devolution of power, regional government or regional autonomy, it was Fine Gael which brought such language to the State and it has been spoken from 1998 onwards.
If anyone asks about Fine Gael policy, I answer that it was my party which introduced this language in its belief as part of its commitment to Europe. Fine Gael brought the language to this State but there is now a situation where this Bill is an obstacle to e-government. The Government does not want to give out information. On the one hand, it talks about the information society while, on the other, there is the iron curtain Senator O'Toole mentioned. I disagree with Senator O'Toole with regard to Deputy John Bruton's take on Government transparency, but I believe in the idea of a glass window in front of the officialdom that executes the decisions of the Oireachtas.
Our system could have worked well if there had not been a fear about allowing people to access information. E-government was supposed to stand for electronic government and giving information to the people. The community and voluntary sector wants information to empower the people – Mr. Paolo Freire's language concerns empowerment – to take decisions on their own and take control of their lives. The “e” in e-government might as well stand for “Excalibur”, King Arthur's magic sword. It is Excalibur government, where a sword has been stabbed in every vein of the community and voluntary sector, and of every local authority official who is working hard to bring electronic technology into our democratic process.
Today is a dark day for democracy. I am not using tonight's debate in an opportunistic fashion but am a believer in information technology as a mechanism to bring power to the people. I do not believe in the hoodwink, or that we should tell people what they want to hear. We must be honest with the people and allow them to make decisions on their own. The Excalibur sword is stuck in the back of better local government reform. The confidence has been knocked out of the strategic policy committees. They and the county development boards are supposed to represent the community and voluntary sector. That sector is asking what the story is but it knows the answer – that there is too much power and information to be devolved, and that this Government does not want to relinquish that power. Why is there such fear? The Minister of State knows the answer to that question.
If there is a move towards a peaceful settlement in Northern Ireland, a big part of that will be our trust in the people working North and South of the Border. While the ministerial cross-Border bodies come under this legislation, I am concerned in regard to the non-governmental cross-Border bodies which do not. We should have had an opportunity to consult and discuss the matter with these organisations before the legislation landed on our table today. There was much to talk about. Community groups are irate that they were not consulted. Were those involved in the Reach programme in the north-west consulted? They thought they had a green light from the Taoiseach to go ahead and implement their strategy. Now there is fear.
This is the biggest scam in the short time I have been involved in politics since 1999. I believed in everything put on the table regarding local government, decentralisation and plans for four or five offices in County Donegal. The plans were brilliant. A citizen, from Malin Head or any little place in the north-west, would be able to come to a local office and access information. Society must evolve. As politicians, we like to control our base, perhaps in the interests of survival. Tonight while we have taken a step backwards, the opportunity is still there to bring the people on board. The consultative process has not happened. That is the reason there is genuine concern on this side of the House.
I come from a community sector background where I spent time working with community groups, the voluntary and paid sectors. Perhaps I entered politics with idealistic notions that I could play a part in bringing power back to the people. Was I naive? How can this be turned around? Can the Minister instil me with any confidence or give me any feedback or reassurance that I can bring to community groups? We are trying to encourage, not just the voluntary and paid sectors which represent the citizen but also individual citizens to go and seek information from these offices. Will the Minister reassure me that they can do this? I have no great confidence that they can.
Senator Minihan spoke but I know by his expression that he believes I am disingenuous in my attempts to highlight that we had the opportunity, through information technology, to bring the people with us and get them involved. We could have had a system, of which we could have been proud. This issue highlights the reason and rationale behind the Government's lack of industry, commitment and leadership in regard to the recent Nice treaty. It does not have confidence in the democratic process that occurs in each European Union country. Not every country believes in our hoodwink type politics. While I oppose this legislation and appreciate the opportunity to do so, I hope it is not too late.
I thank the Minister for coming. It is a serious stumbling block that we appear to be returning to Iron Curtain days in regard to access to information. The Opposition has nothing to hide. What does the Government have to hide? While I do not believe it has anything to hide or is involved in skulduggery, there is a problem in regard to the use of power. When people are given power, they find it difficult to let it go. It is easy for me to say this, as a new politician, but we had the opportunity to allow people to empower themselves and change the way that we run the country. That opportunity has now been lost.
Change comes slowly. Sometimes we are afraid of it. Perhaps the electorate did not seek change in the last general election for that reason. We must challenge the public to examine the reason it lacks belief in our political system. Tonight we are stuck in this Chamber at 11.30 p.m. trying to block legislation in which we have no confidence. We cannot understand the reason it is being shoved in our faces. The Government has missed a rare opportunity to say to the people that it will stand down, that it has listened to the Opposition and taken its concerns on board and that it is willing to consult. We will remember this night for the wrong reasons.
The staff of the House have gone out of their way to stay working tonight. I thank and commend them. We are out and about and used to this lifestyle. In regard to computer technology, local authorities are seeking to ensure a filing of every politician's representations is recorded. Tonight is an opportunity for us to say what big eejits we are out till 2 a.m. or 3 a.m. Senator Moylan is an experienced politician and has done this all his life. This was never the normal 9 a.m. to 5 p.m. job. Perhaps we had an opportunity on this legislation to sell ourselves and point out that we are working seven days a week and sacrificing our lives and personal ambitions but we missed that opportunity also. What person or group of people would stay on for so long? It is commendable that they have done so and I congratulate them on it. I also congratulate the Government Senators who have decided to stay and are hopefully using this opportunity to listen to the concerns of this side of the House.
Ms Tuffy: I support the position of my colleagues on the Opposition benches. The Government is wrong to roll back on a modernising and reforming Act that has not been long in existence. It is mistaken in its intentions and there is great potential for a public backlash. The Bill will ultimately work against the Government's interests. I fully concur with the sentiments of Senator McHugh that the public will not take it well that powers that have been given to them are being revoked. The taking away of citizens' rights is a backward step and one that should never be taken by Government unless it is for the common good, which is not the case here. As other speakers have said, it is for the good of the Government parties, although not necessarily in the long term.
Senator Quinn referred to it earlier as rolling back history and he is right. The Act that is being amended was internationally acknowledged as being good legislation. When it was being implemented there was a very considerate consultation procedure before the legislation was enacted. At the time, the Government tried to ensure that the mistakes of other countries' FOI legislation did not form part of ours.
Fianna Fáil and the Progressive Democrats appear to want to go back to old-style politics and that is the motivation behind the legislation. They are in Government for a second term and, as other speakers have said, are taking their position for granted. They are also taking the people for granted, particularly those who voted them into power. For all the Progressive Democrats have done to protect the public interest in regard to the Bill before us, there might as well be one-party Government.
The Minister outlined how the provisions of the Act have been availed of and how it has changed the culture of the public service with the informal release of information. Why does the Government wish to roll it back considering the great success which it acknowledges it has been? It is not for the common good but for ulterior Government motives. The Government does not want criticism or to be politically embarrassed.
I have been on South Dublin County Council since the local elections of 1999 and even in that time the council has totally changed in regard to its approach to dispensing information. It has become much more transparent and has involved the public more in consultation procedures, which is largely due to the change in culture brought about by the FOI legislation.
I would have expected the Government to learn from the Nice referendum, particularly given that a second referendum had to be held. There was a new approach to the second referendum and the Forum on Europe was introduced to inform people better in regard to European issues. Information is vital in regard to getting people engaged in the political process. Providing information does not necessarily work against the Government's objectives as was evidenced in the passing of the referendum. Much of the information in regard to the referendum was of a complex nature but, on balance, people decided it was in their best interest to pass the referendum allowing for expansion of the European Union.
As Senator Hayes said, debate is a good thing for democracy and we should not be afraid of it. We should welcome and encourage it and that includes the information that is behind Government decisions – information that will be restricted by the introduction of this amending legislation. The exclusion of people from information about the way Government operates will continue to disengage people from the political process. The people who lose out will ultimately be those in Government.
The Taoiseach said in regard to volunteerism that there is a need to create a participatory democracy where active citizenship is the norm. The core principle of the White Paper was openness, accountability and transparency in order to provide access to information and to share it where it is relevant to the pursuit of common objectives. In the legislation before us the Government is doing the reverse – it is curtailing citizens' rights to access information. It is curtailing the right of the voluntary and community sector to information.
When the legislation was enacted in 1998 it was said that the legislation would be a catalyst for profound and lasting change in our public service and it was the Government's intention to leave no stone unturned in ensuring that the necessary reforms would be carried out in all aspects of public administration. It was also said that the Act would enable members of the public to inform themselves as to the work of Government bodies, their processes, priorities and use of resources. How things have changed in the Bill before us.
In April 2000, the then Minister of State at the Department of Finance, Deputy Cullen, said in the Seanad that the role of the media in using the provisions of the legislation was a good thing which would give rise to an informed and educated public. In much the same way, Deputies O'Donnell and McDaid suggested that the legislation did not go far enough. Deputy O'Donnell wished to see the introduction of criminal sanctions for public servants who did not comply with the legislation and Deputy McDaid wished the Official Secrets Act to be repealed.
The deliberative processes provisions in section 13 are unbelievably broad. What issues are not the subjects of ongoing deliberations? It is the most far-reaching restriction in the Bill and could allow an Administration hostile to the release of information to label such information as relating to unresolved policy issues. The only avenue of appeal would lie with the High Court, which is an expensive option. This new procedure would allow material to be buried indefinitely if the matter is certified as ongoing.
The Government has heralded that the proposed abolition of the dual mandate will bring new people into politics but I suggest that the effects of the FOI amendment will be to turn people off politics. It hides information and promotes governance as a one-sided affair. It therefore presents politics as a one-sided process instead of being about ideas and the exchange of information and debate. How can the Government say in truth that it wants to encourage greater participation in politics when it is reducing the information available to the public with the Bill, information that people need in order to be informed voters, unless in bringing in new people to politics it views them as rubber-stamps and election fodder and views the public as voting fodder in elections based on spin and propaganda?
This Bill shows that the Government does not trust the people. Senator White advised that we should trust civil servants. What about trusting the people, the media and the community? The Bill does not do this. It is strange that a Senator who is so vocal in advocating the rights of some of our citizens in Colombia thinks we should hide information from our citizens in Ireland.
The problems which have arisen regarding the legislation do not justify the provisions of the Bill. Such unilateral changes, without taking account of the views of all sides and all parties, are not acceptable. If there are problems with the legislation, they should be dealt with in the way proposed by the Labour Party. There should be a comprehensive review involving the Information Commissioner, the broader public and interested bodies.
Charges will be a deterrent to those who wish to obtain information. In the light of the EU ruling on planning fees, it is amazing that the Government wants to introduce charges for freedom of information requests. Charges will deter poorer citizens and badly resourced voluntary and community groups from getting information. The Minister has said charges have been the exception rather than the rule. Surely this is because, in many cases, it was felt that charges should not be imposed which decision was taken by the public service body in the cases in question.
The Minister has said democracy does not come cheap. The cost of spin is probably much greater. How many spin doctors are employed by Ministers? Information makes for a healthier democracy than spin. The Bill may be more damaging to the Government than the information it is trying to hide, unless there is something extraordinary about which it does not wish us to know. The Bill will be a bigger issue with the public than the Government has anticipated. Mr. Rick Snell, a leading Australian commentator currently visiting the UCC law faculty, recently expressed concern at the prospect of a public backlash to the heavy-handed approach of the Government.
Mr. Bradford: I concur with what Senator Tuffy said about the staff and everyone who has assisted the continuation of this debate late into the night. During my previous term in the Seanad between 1987 and 1989 the only legislation debated into the early hours of the morning was the Bill which dealt with the abolition of the county committees of agriculture, a matter which would have taxed the Minister of State, Deputy Parlon, in a previous incarnation. We ran the ACOT Bill until 2 a.m. or 3 a.m. and may do something similar tonight. On that occasion in 1988 we were dealing with a fundamental attack on rural Ireland. Tonight we are dealing with an issue of equal importance, an attack on the rights of the citizen.
I have listened with interest to many of the contributions and hope the Minister of State and his colleagues are willing, at least, to consider the sentiments expressed on this side of the House. Many Members of the Opposition took part in the earlier debate on the Freedom of Information Act 1997. Senator Tuffy quoted some of what was said at the time by Opposition politicians, many of whom now sit in Government. The cry from many of them was that the legislation did not go far enough. While the Minister of State may be new to political debate in the Oireachtas, he knows how the system works. Views expressed in opposition can be reversed when a person reaches the Government benches. That is how politics always was and, perhaps, always will be. We must accept that some of those who now sit at the Cabinet table complained about the 1997 legislation not going far enough. Before they give full vent to political hypocrisy they should listen to what Opposition Senators are saying.
Why are we having this debate now? What is the rush? This afternoon we heard an interesting contribution on the Convention on the Future of Europe from the Minister of State, Deputy Roche, who spoke to us about the importance of the full involvement of the citizen in debate, whether on European or domestic policy. We highlighted the fact that Ireland led the way in the involvement of the citizen in European policy making, whether through the Forum on Europe, the Convention on the Future of Europe or debates in the Oireachtas. A Member even asked how we could reconcile what we were attempting to do in the politics of Europe with this legislation.
The Bill has been introduced by the Minister for Finance. I do not believe this is the type of legislation he would want to introduce. We all recollect his earlier political career as a backbench Government and Opposition Deputy in the late 1970s and early 1980s when he believed in calling a spade a spade. Now he is being forced, I suspect by the Taoiseach, to stick the spade deep into the soil. Who will benefit most from this legislation and pulling down the shutters on public information? The greatest beneficiary will be the Taoiseach, the person who did most to hoodwink the electorate in the long run-up to the general election last May. If politics is only a game, he succeeded in doing a marvelous job. He now seems to want to draw a curtain on that phase of his political career and move on, without letting the public reflect on what was done. I see no other reason this legislation should be introduced now.
We are told that good governance must be considered. Since the Freedom of Information Act was passed the country has operated reasonably well, the economy has grown and the Government worked well enough to be re-elected. Why should this not continue? Why must we now start believing the method by which the Act was implemented was bad for government and the business of government? There is no evidence to suggest that this is the case.
I would be the first to concede that it might be necessary to review the legislation, as promised by the Government which introduced it and agreed by everyone. Such a review should have been a detailed and lengthy process involving the appropriate Oireachtas committees, the Information Commissioner and the widest possible public consultation. Perfect legislation has never been passed in this House. I have no doubt that for all its merits the Freedom of Information Act was not perfect and, possibly, in need of review. The sudden rush not to review its workings but to throw out the baby with the bathwater is not wise or good politics.
In recent weeks we have debated the whole issue of local government and local government reform. We have been asking for various debates on the issue of decentralisation and referred to the need to give power back to the people. Knowledge is surely the greatest source of power of all. If we believe in strong government, good politics, a strong Oireachtas, vibrant local government, engaging with the electorate as opposed to winning elections and a turnout at election time of 60%, 65% and 70% rather than 45% and 50%, the public must be involved in the decision making process. For it to be involved knowledge is part of the overall jigsaw.
I do not suggest that passage of this Bill will suddenly change the world and that darkness will cover the earth. It is not as bad as that. Let us be real. However, it is a step in the wrong direction and sends out all the wrong signals in regard to what we are about in this House. From the Minister of State's perspective and that of his party, it sends out all the wrong signals about the overall direction of the Cabinet. It sends out a signal that the Taoiseach and Ministers are running scared of what they did or did not do, or what they promised or did not promise, in recent years. That is a bad start for the current term of the Oireachtas and the Government.
To allow the people know where the Government stands, understand the economic situation facing various Ministers and Departments and the choices the Government debates, on which it presumably differs from time to time in proper political fashion, the release of information would not be disadvantageous to anybody. The more the shutters are pulled down on political debate and dialogue and the more we try to hide from the public the work of government, the worse it is for politics. Do we want a type of politics where the public is totally disengaged?
Is the Minister of State aware that local elections in certain parts of Britain will take place in a few months' time? It is estimated that only 20% of the electorate will vote. That is an appalling vista of where democracy is going in Britain. That is what happens when the public loses faith in politicians and when it believes we are involved in a cover-up. While the Bill is not designed to be a cover-up, it is a step in the wrong direction.
If there is a need to review the freedom of information legislation – this would not be inappropriate – it should be done in a considered fashion. What is being done here is the opposite. The Bill was mentioned on Wednesday or Thursday and published on Friday when we had all gone or were on the way home. Its first public ventilation was by the Minister of State on radio on Friday last as he struggled to make a good case for a Bill which is not good.
Mr. Bradford: I do not want to give marks out of ten as that would be unfair. A few days later we are here at the midnight hour debating it. This does not make for good legislation or good politics. Will the Minister of State recognise that what is being said from the Opposition benches is at least as moderate as what his Progressive Democrats and Fianna Fáil colleagues said some years ago? We are attempting to have a debate about a matter of some substance and cannot be expected to tease out such important legislation over the course of a few hours, a few days after it has been published. It is bad politics which should not be encouraged in the Oireachtas. It is in everybody's interest that we practice the type of politics that will involve the public and encourage public debate and participation. This is a step in the wrong direction.
I concur with those Opposition Senators and the Minister of State's Government colleagues who say that further time is required for reflection rather than rushing down the route of reversing what the Act offered. I readily concede that all the gains made under it will not be taken away but there will be substantial negatives. Why should we be afraid of allowing the public to ascertain how the country is run, learn the various ministerial positions on certain issues and see at first hand the various options, policy positions and policy papers put before various Ministers and Departments? We are all mature enough, as is the public, to recognise that Cabinet decisions are taken as a result of debate, dialogue and consensus. No one member of the Government believes he or she is always correct. The work of government is a valuable and vital part of democracy, yet we are trying to shut off public knowledge of its work. That is a retrograde step.
That so many Members have indicated their desire to contribute to the debate shows how seriously we view the threat posed by what the Government intends to do. I hope the Minister of State and his colleagues will reflect on the Bill once again. It is a poor start to the next three or four years of office for them. It sends out all the wrong signals and presents a picture of a Government switching itself off from public opinion, hiding from public debate and covering up the decision-making process at a time when politicians are held in such low esteem by the public. I hope the Minister of State is willing to listen to us and respond to our views because the Freedom of Information Act was passed with the public good in mind. What we are trying to do is keep the public good to the fore.
Mr. Ryan: We are debating this Bill on the stroke of midnight. Nobody asked to be here. The Bill could have been taken any time because there is no rush. It could have been taken next year. A simple amending clause extending from five to six years the confidentiality of Cabinet papers would have been sufficient, if the Government was so worked up about that issue. The legislation could have been passed by this House and the Lower House in a day. We would probably have objected to it because we have a certain commitment to it. Instead, the Government decided to fillet the single biggest institutional change this country has seen in 20 years.
We are here at midnight working our way through unnecessary legislation which is unwanted by most except a few members of the Government. I have listened to the lack of enthusiasm and I cite the particularly innocuous script delivered by the Minister for Finance, a man who has a wonderful reputation for coming before the House, throwing away scripts and engaging in debate. On this occasion, he came before the House, read his script and left. In my opinion, the Minister did so because – like Senators O'Rourke and Moylan – he does not believe in the legislation. One person in Government, the Taoiseach, believes in it because he has shown an incredible determination to avoid political accountability at all costs. He runs away from the Dáil at every opportunity. The reason we are here at midnight is because Deputy Bertie Ahern wants to end something which has, on occasions, made him feel uncomfortable but which has done his Government no harm. He was re-elected after all.
We are here to debate a Bill which was conceived in secret. We did not know last June that a high level committee – I agree with Senator O'Rourke that this is a dreadful phrase – had been established. Almost as soon as the Government was beginning to break its promises, it set up a high level committee to review the legislation. We did not know about it until approximately three weeks ago when the information slipped out in the Dáil and the Taoiseach promptly said he would not tell us anything about it other than that he was somewhat concerned about the secrecy period of five years. We were led to believe that a few minor amendments were necessary to increase that period. The Taoiseach did not want the idea to get abroad that Cabinet papers relating to his time in Government would be made public while he was still in power. I do not know whether that means he expects to be gone from office in ten years. I expect him to be gone much sooner than that.
We suddenly discovered that far more was happening. A report, conceived in secret, was drawn up to rationalise a particular party's determination to return to the world which it missed so much, namely, the world of sullen dark secrecy in which it could conduct its business. However, this type of behaviour does not go down well in modern Ireland so the Bill was presented to us at short notice. A Government which is concerned about the excessive levels of disclosure was able to withhold every scrap of evidence about the contents of the Bill until it saw fit to release it.
There were no freedom of information requests or leaks which disclosed anything. The Government kept it under wraps and then announced it was worried about poor old civil servants. This is one of the extraordinary diversions about which Senator Mansergh, in particular, spoke. He stated that the purpose of the Bill is to protect poor old vulnerable civil servants who cannot speak for themselves. That is a particularly rich and unconvincing explanation and reflects an extraordinary level of priorities.
This country is awash with legislation of a most offensive kind which should have been repealed years ago. It is legislation which, for example, describes people with learning disabilities as imbeciles and which any humane society would have repealed a long time ago. The legislation to which I refer has not been repealed because we do not have time to consider it, there are not sufficient numbers of parliamentary counsel to change it and we do not have parliamentary time to devote to it. As a result, we are obliged to live with this type of repulsive and revolting legislation and the vocabulary it contains. We can, however, rush through the legislation before us, which says something about the political priorities of the Government.
I wish to relate some information to the House. In the coming months I will correct six projects, four of which will be long – containing approximately 20,000 to 30,000 words – and two of which will be short. My decisions and those of others like me in respect of such projects will determine peoples' futures. They will either pass or fail, obtain honours or not obtain them. Everything I write down will be open to scrutiny by the people over whose projects I adjudicate. Every decision and record will be my responsibility and will be a matter of public record. I am proud of that fact because I had a hand in changing the culture to ensure that this happened. The irony is that if I do something wrong, I can, and rightly so, be sued.
I am a public servant with particular responsibilities and it is up to me to exercise these properly. However, I am then supposed to accept that there is a different class of public servant – involved in either politics or the public service – who is incapable of accepting responsibility for his or her own judgments, if they are to be seen in public, and who is inhibited in his or her actions. Am I supposed to believe that I correct examinations and mark projects differently and that everybody in the third level sector correcting examinations for 60,000 young people are inhibited in how they do their business because the students over whom they exercise authority can scrutinise their opinions, judgments, values, etc.? It is innocuous nonsense to suggest that this legislation has anything to do with the inhibition of a free expression of opinion. It might inhibit discussions on how one could help one's friends, but it is absolutely absurd to suggest that this country is apparently run by politicians assisted by civil servants who are afraid to write down an opinion because somebody else might see it.
Last Saturday I listened to the ultimate shrinking violet, the Minister for Justice, Equality and Law Reform, informing us that he would be inhibited from writing to his party leader to say he disagreed with some issue of Government policy if I, or some other lesser mortal, were to see the letter. This is a man who rambled the country for three years during a previous Fianna Fáil coalition expressing opinions about everybody, including his party leader, his party Ministers and, indeed, the entire major party in Government. He showed no inhibition or the slightest compunction. He again rambled the county after 1997 lecturing his party about what it was doing wrong. He left his party for a period and only returned when he was given a nice title. After six months in Government, he has suddenly lost his self-confidence. He cannot express his opinions anymore because he is afraid, embarrassed and uncomfortable and wants them kept under wraps. What a load of absolutely incorrigible, incredible and utterly self-defeating nonsense.
There is something not too admirable about some of the people here trying to tell us that the problem is that civil servants are afraid to express their opinions. I have had the pleasure of the company of senior civil servants on many occasions, and one thing I know about them is that they are not in the least inhibited about expressing their opinions to me, a relatively insignificant member of the political system. It is ridiculous to suggest that people who have no compunction about having wonderfully lively, invigorating and fairly fundamental disagreements with me over a pint are afraid to write down their opinions and give them to Government because I might read them. Most of these people are more than happy to tell me what they think about me, about life, about everything. They do not suffer from inhibitions. These ideas are the product of a political culture, not the product of the Civil Service, and to suggest otherwise is an offensive nonsense which I hope the trade union which represents senior civil servants will demolish in the immediate future because it deserves to be demolished. This is a political measure, produced by a political party in cahoots with what used to be an independent party that has now become nothing more than a convenient adjunct of Fianna Fáil in order to do something that Fianna Fáil always wanted to do, which is to return us to the culture of secrecy.
Let me briefly refer to the Minister's script which is quite extraordinary. I have been in and around this House for the best part of 20 years and know that when legislation is introduced for the first time, one of the things a Minister does is give the usual rhetorical flourishes before proceeding to a section by section discussion of the Bill. The Minister for Finance did not bother to do that. He made a collection of innocuous assertions based on nonsense to justify this Bill. I do not know whether it was contempt for the Seanad or for the idea he was trying to defend that was evident in his script in which he quoted the high-level group. I do not blame the high-level group. Civil servants do what they are told, what they are expected to do, because that is their role.
The Taoiseach quoted with approval the high-level group's finding that the five-year moratorium on the release of Cabinet records was too short. I would argue about that. He also quoted the phrase, “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.” The Minister is saying that the cream of our political talent, who have the support of one of the best civil services in Europe – which we see every time we have a Presidency – will not commit their views to paper because ordinary people, Members of this House or the public, would find out what they said in five years' time. What an insult to the political class of this country. If I were a member of a Government and a civil servant wrote that about me, I would hand it back to him and say it was insulting. It is profoundly insulting to suggest that the Minister of State at the Department of Finance, Deputy Parlon, with whom I have had delightful tangles in a previous existence as a member of the Committee on European Affairs, is inhibited from expressing his opinions because I might find out about them. Deputy Parlon was never slow to let me know his opinions and I suspect he never will be. If a civil servant wrote that about me, I would be insulted, as would any decent Minister. It is an insulting thing to say about Ministers unless the Ministers asked for something like that to be said to give them an excuse, a fig leaf to cover their nakedness or to justify the introduction of this legislation.
There is distortion in the Minister's script in terms of the question of the exemption of records of committees set up to assist Cabinet deliberations and the categorisation of these records as Cabinet records. We have a wonderful Information Commissioner, an impeccable civil servant with an impeccable history and integrity, but somehow he is not good enough. Governments or freedom of information officers might refuse access to information on the grounds that the documents are Government documents and the Information Commissioner might look at them if such a decision were appealed. The implication is that this would not be a good idea. It was decided to clarify matters by handing the power over to somebody who has a vested interest in doing what the Government wants, namely, the Secretary General of a Department whose primary job is to look after the Government. To pretend that this is an advance when it is the most shameful retreat from independent adjudication is disgraceful. That was done not because they are afraid of having their opinions per se released – I know none of them is afraid of that – but because they are afraid that what they are at will be exposed to the light of day. This is where the whole thing is so suspicious. When a political party which is being investigated by so many of its members and by so many tribunals about so much corruption suddenly retreats back into darkness and obscurity, everybody is entitled to believe, particularly when the arguments in favour of what they want to do are such manifest nonsense, that they have something to cover up and that they want to cover it up.
The Minister's script goes on with a pathetic reference to an extraordinary exception where costs run to multiples of thousands of euro. That was a failure of Government. That sort of abuse of the Act would have been dealt with by a Government that had any commitment or capacity to manage its own affairs. Instead of managing its affairs, it has decided to change the law. It is like shooting the messenger if one does not like the message. The Minister's script continued in that vein. However, I do not want to spend too much time on it because it is hardly worth it. Why does the Government not trust the Information Commissioner? What is wrong with him? Is it that he is honest?
Mr. Ryan: Nobody will address these issues. The Information Commissioner makes decisions according to the law and the sky has not fallen in yet. However, Fianna Fáil, with the scandalous capitulation of the minority party in Government, does not want any independent figure to judge its behaviour so it runs away at every stage. That is what this Bill is about. The Minister's speech reminds me of what a Christian Brother once said before he walloped me. He said “for fear you would and in case you might”. That is what this is all about. For fear of and in case something might be disclosed, we will make sure nothing can be disclosed. That is what is going on here.
Mr. Ryan: I will say it again and again, as often as the Senator interrupts me, because it is true. I was here when Fianna Fáil ruptured and Deputies Des O'Malley, Mary Harney, Pearse Wyse and Bobby Molloy left and founded the Progressive Democrats because they could not stick it any longer. They were right to do so. They said that the job of the Progressive Democrats was to bring decency into a political system that had been almost destroyed by the rottenness of Fianna Fáil. Now the party founded by those decent people is colluding with Fianna Fáil to return us to the culture from which it claimed it would rescue us. It is the ultimate irony.
Mr. Cummins: I note that the Minister of State, Deputy Parlon, is back for a second shift. I do not suppose the Minister for Finance will be back as he left so quickly after giving his speech this afternoon.
When the Freedom of Information Act was passed in 1998, it strengthened citizens' rights and won this country great respect abroad. From a check of Dáil records, I note that at that time Fianna Fáil said that the Act did not go far enough and that it took a minimalist approach. However, Deputy Liz O'Donnell for the Progressive Democrats said that she could not foresee any Government letting sensitive information out if it meant saving its own skin. How right she was. Only five years have elapsed and the same Government – Fianna Fáil supported by the Progressive Democrats – is attempting to stifle information.
When the Act was passed, it was a clear statement that we had nothing to fear from a system of accountability, openness and transparency, following decades of secrecy which assisted corruption to fester and prosper in this country. The Act proved a vital tool for citizens to vindicate their rights and hold the Government to account. The proposals included in this Bill are an attempt to seriously undermine the principles of the Act, and will significantly weaken it if the Government has its way.
These proposals are to be rammed through with undue haste. No matter what the Government parties may say, this is an unprecedented attempt to push through a Bill which many Members of this House only received copies of when they returned to their offices this morning. Many Members have asked why there is such a rush to push through this Bill and why it cannot be introduced next week. It is because it might clash with the Cheltenham races which are clearly more important to the Minister than the accountability of this Government to the people.
The Information Commissioner is currently formulating a review of how the Act is working and he has stated that he will report on that by next week. Is the Government prepared to wait one week to listen to what the Information Commissioner has to say? It seems it is not. The secretary of the National Union of Journalists asked, “How can we believe commitments about social and economic reforms when the rights of citizens are trampled upon in such an arrogant fashion?” Arrogance is what we are treated to on an increasing number of issues that come before this House. All Members of the Opposition opposed vigorously today's Order of Business in an attempt to halt the gallop of this Bill and to afford Members the opportunity to consult and enter dialogue with interested parties, so that their views on the Bill could be obtained.
The unity of purpose shown by the Government parties and the speed with which this Bill is to be rammed through brings into question the reasons why these fundamental changes to the Freedom of Information Act are to be introduced. Is the Government embarrassed at some of the stories journalists have rooted out such as the Minister for Health and Children spending €500,000 on renovating his office at a time when patients are suffering and only emergency operations are carried out in some hospitals, as is the case in Waterford Regional Hospital? Are stories about the amount of money spent on photographers, public relations people and spin doctors for Ministers embarrassing the Government? Does the Government not want similar information published in the years ahead? I trust that, as substantive policy issues become more difficult for journalists to explore, they will be even more likely to probe such information.
I wish to address the lack of consultation prior to the Bill's publication. The Information Commissioner, the NUJ and the voluntary and community organisations throughout the country were not consulted. Nobody was consulted and it was left to the senior civil servants involved to look into their hearts to decide what was best for them and the Government, and not what was best for the citizens who yearn for openness and accountable Government. I have the utmost respect for civil servants but I am unhappy that such radical change to our laws should be made purely on the basis of consultation between a number of senior public servants and their respective Ministers. It is necessary at all times to undertake a wider consultation process before any legislation is debated by the Oireachtas.
The repeal of sections of the Freedom of Information Act will only add to the public cynicism about politics and politicians which has already led to falling numbers of people voting and becoming involved in our democratic process. That obviously does not matter to a Government concerned only with avoiding embarrassing revelations of the truth about its activities.
The Minister in his speech was at pains to outline that the Act was extended to universities, health boards, local authorities and other bodies. I welcome that, but what is good for the goose should be good for the gander. At some of the tribunals, great play is made of councillors who voted against the advice of their officials. It was correct that this advice was available to be placed in the public arena. However, that must be contrasted with the provisions in this Bill which exclude or provide exemptions for briefing notes which assist the Cabinet in its deliberations. The Government is practising what I will call George Orwell politics – all politicians and public servants are equal, but some are more equal than others.
Requests to obtain correspondence between Ministers will also be refused in future which will prevent the revelation of more embarrassing exchanges such as those between the Minister for Finance and the Minister for Health and Children which were published last year. The Government feels that what the public does not know does not trouble it.
The Minister stated that the honourable intentions of the Freedom of Information Act could be abused by cranks and that it could cost a fortune to provide the information requested by them. However, this problem could be solved simply by invoking section 10 which allows for freedom of information officers to reject a request if they find it frivolous or vexatious. Why was this provision not used more often if we had frivolous and vexatious demands by cranks, as suggested by the Minister?
On 21 April, Cabinet papers presented before January 1998 are due to be released to the public in some instances. However, if this Bill is passed this will not be possible for another five years. What have the two parties in Government to hide? There is not a whisper from the self-proclaimed guardians of public interest in the Progressive Democrats. The PD watchdog must be barking at a frequency at which only its fellow pack members in Fianna Fáil can hear because the electorate has heard nothing from it regarding issues such as spiralling crime and proposed increases in third level fees.
This Bill may afford the Progressive Democrats the luxury of saying that they opposed certain items in Cabinet but they will have no way to confirm that that was their stance under the Freedom of Information Act. My party will oppose this Bill vigorously at every possible opportunity, using every parliamentary mechanism to defend the existing Act. We will press the issue convincingly, comprehensively and cogently on every Stage to ensure the Government is not sheltered in any way from the critical gaze of the public.
Many Senators have stated that this is a sad day for democracy. It certainly is when one sees Government parties putting forward legislation such as this, which nobody requires or has demanded. It demonstrates that their priority is to stay in power for as long as possible and to hide any embarrassing items from the public. That is what this Bill is about and the Opposition will do everything it can to oppose the Government in its efforts to deny people access to the information to which they are entitled.
The Government is taking a regressive step and we will do everything possible to highlight its inadequacies and let the people know about the false promises that were made prior to the election. As has been stated, there was not one word in the programme for Government about introducing this Bill and no reference to cuts, hidden or otherwise. There was no reference to any Bills being introduced without advance notice and this is the first Bill to come before us that falls into this category. Are we to have many more? It is like turning back the tide to Iron Curtain days because information is being suppressed.
It is sad to say that this type of legislation is being foisted upon us by the Government in 2003. It is an absolute shame and a negation of democracy. We are disgusted that we are here at this hour of the morning debating a Bill. We could, if the Government had taken the matter seriously, discussed it for a few hours tomorrow. This would not have been a problem for any of the Members, including members of Fianna Fáil to whom I have spoken. However, the Government is intent on ramming this Bill through, at whatever hour of the morning pleases it. I hope people will ask frequently what the Government has done and what it has to hide.
Mr. Feighan: In the 1980s I grew up in a closed society and church and State were very much to the forefront of activity. There was an element of gombeenism which I disliked. Gombeen men used to enter my town wearing Crombie coats and used to tell me what a great town it was and what a great business I had. They used to make loads of promises during election campaigns and when they were over, they disappeared. However, they always returned before the next general election and I was a fool because I was taken in by them.
I wonder if we are now going back to that closed society of nods, winks and gombeenism. I do not want to do so. I was elected in 1999 and believe I was elected to make a difference. Respecting the electorate's desire for honesty and integrity, I am thankful that the first time I had to use the Freedom of Information Act was last year. I had to use it when I tried to play ball with the Government. Three years ago the Minister, Deputy McCreevy, said he would decentralise 10,000 jobs to areas that previously had none. Roscommon County Council drew up a proposal and spent many hours outlining why Roscommon should benefit from decentralisation but, to date, not one job has been created through this process.
Two years ago, the Department of Social and Family Affairs was allocating 100 jobs to Sligo. However, I knew that it had no office space in the town. I asked the Government representatives of the day to locate the jobs in my town of Boyle because we had an office and told them it would be much cheaper.
Mr. Feighan: I will get back to that. I play my politics by giving credit where it is due. Unfortunately, not one telephone call was made to the Minister and the jobs were created in an office in Sligo town which has no car parking facilities and which costs the Exchequer three times more than it would in Boyle. I had to use the Freedom of Information Act to access the information I sought which made me see how this Government was squandering money. Jobs were not being created and I used the Act to highlight the manner in which my constituency had been undermined and left out.
The legislation was originally proposed in the Fianna Fáil and Labour Party programme for Government in 1992 and the rainbow coalition of 1995 to 1997, led by Fianna Gael, brought it to fruition. The Fianna Fáil Opposition did not dispute its introduction, but took the view that the legislation was fair. I reviewed the debates on the original legislation and I would like to cite Deputy McDaid, if I may name names.
Mr. Feighan: Deputy McDaid said that the Bill was a minimalist and disappointing administrative fig-leaf rather than a mechanism for real openness in Government. A man who claims to know his constituents and who recently wished to act as a go-between in Limerick city, Deputy O'Dea—
Mr. Feighan: —said there would be few requests for documents. That is at odds with his claim to be at the grassroots. As Senator Cummins pointed out, Deputy O'Donnell said she was not confident that future Governments would be forthcoming with sensitive or explosive information when their members' skins were at stake. That she is a prophet can be seen from the fact that her words have come true.
Mr. Feighan: Or a profiteer. The Government she and her party are members of is amending the legislation five years later to deny the people an informed view of the thinking behind its policies. The Government fears accountability and transparency, concepts I am sick of hearing its members refer to.
One of the most objectionable aspects of the Bill is the view on which it is based. The Government's deliberations took place in secret without the input of Kevin Murphy, the Information Commissioner, who has statutory responsibility to enforce the provisions of the Freedom of Information Act. The review group was composed of five Secretaries General, which makes it sound like an Argentine junta. These are the people who led with regard to the legislation before the House.
Mr. Feighan: I am recording my opinion on the matter. The Government has relied on five generals, albeit Secretaries General, to decide amendments to legislation, which is unfair and unjust. The Opposition parties have not been asked for their views, despite the fact that we hold them.
Mr. Feighan: I was not asked for my views when the legislation was drawn up and I would like to know why the National Union of Journalists was ignored. This is a back-stairs exercise and an assault on the spirit of openness and transparency of the original Act.
Mr. Feighan: There was an increase of 12.4% on the 2000 figures and of 34% since the figures submitted in 1999. Despite the public perception, only 3,123 of those 15,428 applications were from the media and that represented an increase of 23% from the previous year. What is there to worry about when ordinary citizens request information? On occasion, requests were turned down, but the information was always leaked somehow.
There have been clear instances of use of the Freedom of Information Act to further the agendas of Government Departments. Last week, The Irish Times made an FOI request regarding speeding offences by Ministers and we must ask if that has influenced the decision to amend the legislation. Plans to restrict the Freedom of Information Act pose a serious threat to openness and transparency.
In response to questions in the Dáil, the Taoiseach stated that the five year rule was impracticable and dangerous as it could lead to the release of information relating to the Belfast Agreement negotiating papers. The restrictions on papers relating to security and Northern Ireland provided for in the existing Act mean that could not happen.
We should note in our deliberations on these matters the Canadian review of its legislative provisions in this area. The Canadians ensured consultations with all stakeholders and we should do the same. Among those who should have been involved are the Office of the Information Commissioner, the freedom of information central policy unit and the freedom of information citizen and business advisory groups which were established by the Department of Finance to provide feedback on the operation of the legislation.
Mr. Feighan: I became a councillor in 1999. I take that role seriously and I represent the people enthusiastically. I was nominated by the Irish Kidney Association and I spent a great deal of time researching the Health Insurance (Amendment) Bill 2003, which I concluded was fine legislation. The World Health Organisation has praised our health insurance system. Members on the Government side have asked why we are opposing the legislative amendment before the House tonight when we did not oppose the Health Insurance Bill, but it is ridiculous to claim it is because we are weak. I want to ensure that useful Bills are passed by acknowledging them as such, but if I see poor legislation before the House, I will point it out. It is not my intention to score political points, but the statement to the effect that the Opposition is weak got my blood boiling. It was wrong to make it.
Mr. Feighan: The introduction of the Freedom of Information Act should have been staggered and the ten year rule might not be a bad idea. It would be preferable if everybody had an opportunity to take a year out in order to consult the various bodies involved, but, instead, the legislation is being pushed through. That is something with which I do not agree.
Years ago the principal of my school was going to a meeting where difficult questions were expected to be asked. When I asked what he intended to do he said that he would give those posing questions the mushroom treatment, namely, keep them in the dark and fill them full of “you know what”. The Government is not treating this country in the way a democracy should be treated. It is applying the mushroom farm principle by keeping everybody in the dark and piling on the “you know what”.
In the past only a certain number of privileged people had access to information, which was the key to everything. Every small town and village had a self-appointed leader who had the ear of the county manager, the local politician or the local clergy. I grew up in that era and I do not want to see it return. Everyone, not just politicians and the leaders of business, should be able to gain access to information.
I am aware that some Members on the other side of the House oppose the Bill, but I also know that when the vote is called they will vote in favour of it. This new amendment to the Act will not be enacted until April, so I call on every citizen to use the existing legislation on freedom of information until then. Everybody should request details under the Freedom of Information Act on any aspect of Government policy or action which they believe is wrong. I will be requesting information on how this amendment was drafted and what consultation was involved. I will expect satisfactory replies which I can use in the future.
Mr. U. Burke: I wonder what it will take to elicit a further response from the Government side of the House? We have had three Fianna Fáil contributions and two from the Progressive Democrats. Senator Mansergh for Fianna Fáil expressed many reservations about the Bill. He commented that this proposal will increase the secrecy period from five to ten years and that the next Fianna Fáil Government would probably extend it to 15 years. He is obviously not very enamoured of the contents of the Bill. Senator Maurice Hayes clearly and openly said that he had many reservations about it, while Senator Mary White said that it is not necessary to have any freedom of information.
Senator Dardis stated that the Opposition had no contribution to make. On reflection, his contribution was nothing more than a rehash of Deputy Michael McDowell's attack in the Dáil during a debate on a Fine Gael Private Members' motion. In making his contribution, Senator Minihan displayed arrogance in the extreme.
There is only one sentence of explanation provided in the explanatory memorandum to the Bill but there are five pages of arrangements, which is, I believe, unprecedented. After decades of secrecy, we must see the Bill in its true context. In 1997 we could get information under the Freedom of Information Act about what had been happening in Government over the years. Now it seems that the current Administration can no longer tolerate the intrusion of the media. I compliment the media in its use of freedom of information.
Mr. U. Burke: I wish to refer to an incident of a kind with which the Minister of State, Deputy Parlon, will be familiar. I made representations on a REPS application to the Minister for Agriculture and Food during the previous Government's term. I asked about 20 questions in various ways in order to extract a certain amount of information, but I failed in that regard. I had to resort to the Freedom of Information Act to request access to the file. I was eventually given the file and it was incomplete. I knew this was the case because some letters I had written to the Department officials and to the Minister were missing. I complained to the Minister and I re-applied for the complete file but I was again given another incomplete file. On this occasion some of the letters that were missing from the first file were included in the second file and vice versa. One of the letters had a comment written on it by a senior official of the Department who is well known to the Minister of State because he encountered him when he jumped on the bandwagon in respect of the recent farmers' protest. The officer challenged the Minister of State in regard to the credibility with which he participated in the campaign. The officer wrote on the file, which was available in the Department of Agriculture and Food, that there should be no reply to the former Deputy Burke on the question. They are the facts of the matter. If Senator Daly can refute that, I will yield to another point of order from him.
Mr. U. Burke: The Bill is designed to conceal and muffle in whatever way possible information that would embarrass the Minister of State who said that transparency and accountability were the most important traits he would bring to his party and the Government. I refer him to the statement made tonight on the plinth by the Tánaiste – I will not repeat it – which indicates where the sincerity lies. He may not be aware of the statement and should ask the Tánaiste about it.
On the Government's coming into power, the media immediately became suspicious of many of the events which took place during the lifetime of the previous Government and during the run-up to the election. It was clear to the media that it would get answers under the Freedom of Information Act, whereas TDs and others had failed to do so. Since then there has been revelation after revelation, which has clearly upset the Government, so it rushed to stop it. We want to delay the legislation in order to get the information which is still within Government but which is not available to the public. The public, the NUJ and the Information Commissioner have been excluded from these consultations. The fear of the Government about some of the revelations that may come to light may make it impossible for it to continue. It wants to remain in power and ride out the tide of the current difficulties and it hopes better days will emerge. We all look forward to better days but I hope the Government will not be in a position to ride out the current difficulties because the people have yet to answer. They will answer in the local elections in a year's time and in the European elections. It is only then the Government may get an opportunity to reconsider the issue.
The membership of the body makes interesting reading. It includes Mr. Dermot McCarthy, General Secretary to the Government, Mr. Paul Haran, Secretary General, Department of Enterprise, Trade and Employment, Miss Julie O'Neill, Department of Transport, Mr. Dermot Gallagher, Department of Foreign Affairs and Mr. Eddie O'Sullivan, Department of Finance, a combination of people who are hyper-sensitive to what may come from the Department of Finance, on the one hand, and the Department of Enterprise, Trade and Employment, on the other. Unfortunately, there is no representative from the Department of Health and Children. If we could see the exchange of views, whether written or oral, between the Minister for Finance, Deputy McCreevy, and the Minister for Health and Children, Deputy Martin, it would put the public at ease. The vibes and tension between the two Ministers in regard to the allocation of funding were there for everyone to see without written scripts to prove it.
Mr. U. Burke: We should add to that the Sheedy affair, the Bertie bowl – the Tánaiste's office and the Department of Finance were involved, including the two people representing them on this select secretive review group – and many others. All of these instances would indicate to the public that the Government is discredited, and will be further discredited in time. However, in order to cover up for its inadequacies it decided to rush through this legislation before 21 April 2003, which is why we are here at 1 a.m.
Mr. U. Burke: The Acting Chairman should ask the other side, even at this late hour, to allow the debate to go on because they are not contributing to it. Why are they all missing? I accept that the Leader contributed. I gather from the contributions of others that they are not satisfied with the legislation. The legislation has sent reeling every group with an interest in freedom of and access to information. The criticisms emanating from reasonable people must be noted by the Government. If it intends to proceed with the haste with which it began on this occasion, everyone will know it is hiding something and that it will continue to do so.
I will conclude by giving one more example which clearly indicates that without the Freedom of Information Act people would be at a very serious loss. A psychiatric patient living in the Mid-Western Health Board area, who was treated by a consultant for a long period, left the jurisdiction of that health board and went to live for a time in the Western Health Board area where satisfactory treatment was received. When the patient was sufficiently well and asked for the file to which he or she was entitled principally to find out whether the original consultant was still charging fees, access to the information was not provided by the Mid-Western Health Board. The file was likewise suppressed by the Western Health Board. It was only through court proceedings that the person eventually gained access to the file.
A Minister in the previous Administration directed by regulation that access to information under the terms of the Act could be widened in certain instances. For example, relatives of deceased persons and parents of handicapped persons could access information. This must be contrasted with the attempt by the former Minister for Education and Science to deny a family its right to secure an education for their child with special needs to the point where it had to have recourse to the courts. It is a disgrace that the Bill provides that certain files may not be accessible for a period of up to ten years.
This legislation will bring shame to the country, which was applauded for the introduction of the Freedom of Information Act in 1997. The Government wants to abuse that legislation to cover for its inadequacies and the shenanigans in which it engages. I hope this House and the Lower House will use all the means at their disposal to express their indignation at the manner in which the Bill has been introduced and the way the Government intends to process it.
Mr. Browne: It makes a mockery of the role of the Seanad as a debating Chamber when only Members on one side are making contributions to the debate. It is outrageous. The last four contributions have been made by Fine Gael Members. Members of the Fianna Fáil Party appear to have lost their tongues. We were elected to the Seanad to voice concerns about legislation, but Members on the Government side are failing in this task.
It is clear that the Government is concerned about the way the use of the Act is damaging its reputation. Last weekend, the Sunday Independent obtained information under the Act regarding the expenditure of €500,000 on the refurbishment of the Minister's office at the Department of Health and Children in the same week that 20 patients waiting for dialysis treatment encountered severe difficulties in some Dublin hospitals. It has also been revealed that the Minister of State at the Department of Finance, Deputy Parlon, is planning to sell the family silver to make up for shortfalls in other areas. It is proposed to sell some State owned properties.
Mr. Browne: It is relevant. Earlier tonight, I researched the debate on the Freedom of Information Act. Deputy O'Donnell spoke of her regret that the Official Secrets Act had not been repealed when the original legislation was being passed. She said there was little point in announcing a principle of openness and access to information if everything sensitive to the authorities can be excluded by way of exemption. Deputy Woods complained that the Bill would maintain the culture of secrecy within the public service, while Senator Liam Fitzgerald said Departments were presided over by Ministers who deliberately and blatantly refused access to information. Those views were expressed only five years ago.
I agree with the description of the Bill as being the work of a select group of civil servants, who worked behind closed doors and consulted nobody. The Ombudsman and Information Commissioner were not consulted, nor was the NUJ. The Bill will grant extraordinary powers to senior civil servants and constrain the role of the Information Commissioner.
The Bill was produced with undue haste. It was agreed by the Cabinet last Tuesday and only published on Friday, but many Senators did not receive it until they arrived at the Chamber today. It never arrived at my office. This Second Stage debate is being held at a ludicrous hour, when most citizens, as should be the case, are asleep, and Committee Stage will be rammed through the House next week.
Mr. Browne: The proposal regarding the exemption of the records of Cabinet deliberations is outrageous, particularly when the public depends on information leaked to the newspapers. The Government is expert at leaking information, especially against its own members. Senator Maurice Hayes referred to this. It is embarrassing that when the Government is concerned about concealing information, it engages in selective leaks. For example, the rail review strategy is three months overdue, but every so often the newspapers publish snippets of information on its progress. It demeans democracy and the House.
I grew up in a culture of tribunals, which were created to address the problems created by secrecy and gombeenism. I hope we can move away from that. I am struck by the hypocrisy of the Minister for Justice, Equality and Law Reform. During the general election campaign, he climbed ladders to warn against the dangers of one party Government, but he has yet to come down to earth since taking up office. He is now proposing a curtailment of the work of the tribunals and acknowledges that they are a huge expense for taxpayers. At the same time, he wants to amend the Freedom of Information Act. There is an inconsistency here. If we want to create the circumstances where future tribunals are unnecessary, it is important to provide information to citizens as they request it.
Freedom of information originated from the idea that there was a need for transparency, openness, accountability and inclusiveness. It was pointed out by previous speakers that section 10 provides that people can refuse to give extra information in cases where unreasonable requests are made by the same, or different, people. Therefore the origin of the Bill is no longer justified.
People in the voluntary sector are worried by the proposed changes. They feel that it flies in the face of the White Paper on Supporting Voluntary Activity which was only published in September 2000. The Government at the time, which was of almost the same composition as the present one, acknowledged the need to create a participatory democracy where active citizenship is the norm. It acknowledged also that voluntary activity is a vital element of democracy and that a strong democracy enhances and protects the capacity of citizens to participate. Under this legislation the Government's plan to curtail citizens' access to information will directly undermine its stated desire to create a more participatory democracy where active citizenship is fostered.
I appeal to the Leader, who is an experienced politician, to see sense and postpone the debate for now and allow further speakers, especially from the Government side who seem to have disappeared or lost their voices—
Mr. Browne: I am looking forward to hearing them speak and debate this issue. Aristotle said that it is through the clash and collision of ideas that things get sorted. It is not healthy in any democracy to have only one side offer its views. We need to hear both sides. We will certainly oppose this Bill.
Ms Terry: It just goes to show how seriously we are treating the issue. The publication of this Bill is a sad day for democracy and for Irish politics. It denies people the rights they had under the 1997 legislation to get the information they seek without hindrance.
The words “openness, transparency, accountability and for the public good” have been used in regard to the Progressive Democrats. Fianna Fáil also aspires to these values. I cannot see how these words fit in with this Bill. Words that fit better are “secrecy, arrogance, lacking credibility and bringing politics into disrepute”. For the past couple of years we have tried to improve the image of politics and politicians. This legislation does nothing to serve politics.
This Bill promotes the suppression of information instead of freedom of information. The Government is there to represent and work for the people and to provide them with the information they need. This Bill is a step backwards. The 1997 legislation was excellent. Perhaps it needed to be reviewed but that should have been done in consultation with everybody concerned. This Bill does not follow a review after a consultation process but is presented as a fait accompli. That is not how we want to do business or how business is done in general.
It is a shame in the first place that we had to bring in the Freedom of Information Act 1997. That Bill was necessary because people could not get the information they needed. In cases where an individual looks for information, from a Minister, a Department, a chief executive officer or whoever is in charge, and that information is not forthcoming, the 1997 Act comes into play. If information was given out freely we would not have had to introduce that Act.
This Government has found the 1997 Act troublesome. It feared it and found it a nuisance because it meant the Government had to supply information. We are talking now about the Government from the top down rather than the bottom up. I do not understand why all of these amendments are being introduced. Vexatious claims were mentioned but there were very few of those. Any that there were could have been dealt with on an individual basis. Could this legislation be a cost-cutting exercise? The process did cost money but it costs money to deliver any service. I believe this is the reason for this legislation which is another cost cutting exercise. It denies the public the right to the information that they deserve.
The imposition of fees for information is another aspect of the Bill which I abhor. It reminds me of the fee imposed on those who wish to lodge an objection to a planning application. That fee was brought in by the previous Government which involved the same two political parties. The fee made it difficult for certain individuals, who wished to make their views known or to have them put on the record, to lodge objections.
Another serious aspect of the legislation concerns the release of Cabinet information after a period of ten years rather than five. There may not be much difference but is this being introduced so that the present Government will not have to release information which would have been available to us under the previous Act? If this Government were not in power we might consider ten years a fair length of time but I question why this is being changed at this point in time.
The 1997 Act served the people and operated in their interest and for their good. This new Bill will not do that. I ask those on the Government side to consider this. The number of amendments in the new Bill will make a mockery of what we believe freedom of information should be about. I oppose the Bill.
Mr. J. Phelan: Many speakers have referred to the role of the Progressive Democrats, in particular, and the awkward position in which they find themselves in regard to the legislation. Others have referred to the Minister for Justice, Equality and Law Reform, Deputy McDowell, who prior to the general election climbed all the lamp posts in his constituency of Dublin South-East and further afield to put up posters stating, “One-party Government? No thanks!” In spite of this, one party Government appears to be a reality. The Progressive Democrats have been shown to be redundant. It is a joyous day for politics that this has occurred.
Mr. J. Phelan: He was not even a member of the Progressive Democrats at the time he launched his wish list; he wanted to be party president and change the name of the party to the Radical Party. He said they had to be either radical or redundant. He is now redundant.
I read some of the contributions to the debate on the original Act. There was a very interesting statement by Deputy O'Dea, now Minister of State at the Department of Justice, Equality and Law Reform. He was once famously described as Mighty Mouse in Limerick and a church mouse in Dublin. He was most vociferous in speaking on the FOI legislation and actually said it did not go half far enough. His silence in regard to the amending legislation speaks volumes, as does the silence of Government Senators.
I do not have any problem being here at 1.30 a.m., although there are many places I would prefer to be. It is an exercise in parliamentary democracy for us to express our strongly held views on this regressive legislation. As someone who is new to politics and has not used the FOI Act up to now, I have been struck by the number who have been in contact with me in recent days to express their serious concern in regard to this issue. As Senator Feighan said, while it is an issue that affects journalists, the vast majority looking for information are ordinary Joe Soaps who are most concerned about the amendment to the legislation.
Mr. J. Phelan: I am glad Senator Leyden brought up that issue, something that is creeping into many aspects of public life. At the council in Kilkenny Fianna Fáil forced through proposals with the help of its Independent allies which will result in people having to pay a fee to apply for the disabled person's grant. Fine Gael opposed this move vehemently. I also strongly object to the possible introduction of a fee in order to get information under the FOI Act which should be provided free of charge. It is a retrograde step to ask people to pay.
Mr. J. Phelan: The Senator referred to the fact that two of the Senators who contributed to the debate did not have Irish accents. I have an Irish accent, a south Kilkenny one, of which I am proud. If a person is elected to this Chamber, it does not matter what kind of accent he or she has, be it African or Asian, which many now have. All Senators are entitled to express their views on this important issue, regardless of what the Senator might say.
Mr. J. Phelan: Perhaps I am part of an age group which is cynical about politics. The position the Government has adopted on freedom of information only adds to the cynicism of people my age and others cynical about the way it has approached such legislation.
Mr. J. Phelan: I read enough to pick out an interesting nugget of information. The programme which was launched in 1999 stated there should be adequate consultation with interested parties before new legislation was introduced. That is a statement and a half which ranks with the pre-election statements to the effect that there would not be any cutbacks about which I spoke previously. What consultation did we have on this issue?
I have the utmost respect for the Secretaries General faced with the task of bringing forward proposals for change to the Freedom of Information Act. Senators have already stated how unfortunate it is that Ministers appear to be hiding behind these five civil servants and letting them take the blame for the legislation before us. It is the Government which is to blame. The Taoiseach's broken promise in this regard can be added to the list of broken promises that have emerged since the general election. I wonder what will be next.
One issue of particular interest to me is that of Sports Campus Ireland. I cannot help but feel that another reason for delaying the publication of Government information for longer than five years is to prevent potential embarrassing revelations regarding this project.
Mr. J. Phelan: Huge amounts of money have been invested in a scheme that has completely fallen by the wayside. It was tremendously politically embarrassing to the Government. This legislation is an attempt to avoid further embarrassment. A previous speaker referred to Deputy O'Donnell's statement in 1997 that Governments would not disclose information which would be embarrassing. Perhaps she was correct and that is the reason she is supporting the legislation as I presume she is. I look forward to her not supporting it because if she is to stick to what she said, she should not be supportive of it.
I spoke about consultation. The Information Commissioner is the one charged with responsibility for the Freedom of Information Act. It beggars belief that the Government did not consult him before publishing the Bill. Likewise, it is ridiculous that there was no consultation with the NUJ when journalists make up the single biggest FOI user group.
Mr. J. Phelan: Then why is the Leader laughing? It is a serious issue that Members do not have time to read legislation before it is discussed on Second Stage. That is important for parliamentary democracy and not something to be sneered at by Government Members.
The Bill will allow a State organisation to refuse an application if it would impose a substantial and unreasonable interference on its work. The current legislation provides that frivolous requests need not be dealt with. How is the word “unreasonable” to be defined? People have a right to information. On the Order of Business I can seek a response from a Minister on a particular matter or a member of the public can seek information under the Freedom of Information Act. Who is to judge whether something is unreasonable? This is certainly open to misinterpretation. I do not agree with this provision.
This is ill-thought out and rushed legislation. Although it is vitally important, the explanatory memorandum consists of only two or three lines. The Bill is being rushed through in an unseemly manner. I am sorry to see the attitude the Government has adopted and, with my colleagues, will oppose it at every turn.
Mr. Coonan: I realise how close I am living to the seat of power when I see you, Acting Chairman, chairing this debate and the Minister of State in the House. The Minister for Defence, Deputy Michael Smith, also lives close to us. Ba mhaith liom fáilte a chur roimh an Aire Stáit. I welcome the Minister of State. I have not had an opportunity to welcome him to the Seanad until tonight and I wish him well.
I will read my speech because, having listened to 2,000 angry farmers in Abbeyleix tonight, I would be in danger of using some of the expletives I heard there and might be accused of using unparliamentary language.
This is a sad day for the Seanad and the Government. This morning we will further advance a subversive Bill designed to cover up the mistakes of this and the previous Government in the past six years. When I hear from my colleagues on the Government benches that this Bill was created to further the public interest, I wonder when increased cynicism and distrust of public officials became such an important part of the public interest. More than this, I wonder when they became so crucial that they must subvert even the normal political process which governs the actions of this House. Senators on all sides did not have time to consult on the Bill, to adequately prepare for the debate or to contemplate all of its negative consequences. Some Senators, of whom I am one, only received a copy of this convoluted legislation today. Had I not gone home this evening I would not have received it even then.
Mr. Coonan: We are debating a major change to a landmark public policy measure. Committee Stage, scheduled to take place this week, will occur during a time when the relevant Ministers may not be present. This buggers belief. If I was burdened with the record of the past six years and knew it would become available to the public on 21 April next, I would rush to cover my tracks also.
This Bill is not in the interests of the people or the civic spirit of the country which will suffer as a result. The honesty and integrity of government are critical to maintaining the faith of the people it serves. Experience has shown that this is best achieved through relative transparency and ease of access. Experience has also shown that these ideas are foreign to the Government. This explains the Bill which is before us today. The Government wants to cover things up.
Government, in all its forms, has a tremendous impact on the people. As elected representatives, we know this only too well. Every day we hear from people who are having problems with interacting with or receiving information from the Government and who need our help. These are not small problems. Government decisions control access to health care, housing, planning and social welfare and plunge agriculture into crisis. People's lives are affected in a very real way by what the Government does and how it does it. The least people deserve is to be able to learn and understand. If we were doing our jobs correctly and operating with the public interest at heart, we would have nothing to fear by helping them achieve this goal.
In terms of transparency, the Bill's implications are clear. There is no doubt that certain information must remain confidential to the Government and I do not believe any Member would argue otherwise. In addition, I do not believe anyone would argue that, as time passes, changes to the Act will be necessary. We must make the process as streamlined as possible in order to allow relevant information to be practically dispensed and give the Government the freedom to operate in the public interest and help protect the policy of those in the public and private sectors. One would think that the best way to do so would be to spend reasonable time conferring with the person most directly concerned, namely, the Information Commissioner, Mr. Murphy. The first thing any normal parliament or Government would do would be to consult the Information Commissioner. However, the Government did not deem it necessary to do so.
I am fully satisfied that the provisions of the Freedom of Information Act as they stand are more than sufficient to protect all of the essential interests of Government. Nothing in the operation of the FOI, bar the odd accident, suggests otherwise.
How can the Information Commissioner's exclusion from the process be justified? If he is so incompetent and if his views are so inconsequential, why has he retained his position? If he is not worth consulting, he should not be in the job? Who, in a sincere attempt to improve the legislation, would cause the impetus for change to be removed from the five wise men chosen by the Government? Three wise men were appointed to consider the economy, while five were put in place to review the Freedom of Information Act.
Mr. Coonan: Who would neglect to obtain an input from or ignore the Department in question? For that matter, who would wait for the expiration of the first five year period before suggesting change? Those in Fianna Fáil and the Progressive Democrats are the only people who would do so. The Government's stated motives cannot be accepted and they certainly cannot be trusted.
There has been much comment about the concerns of the Government in regard to media access to information. If the Government had done its job with integrity, openness and honesty, there would be no concern. We would be in a position to hear the plain and varnished truths, before they were submitted to the spin doctors, and we would know what was happening. However, the Government is not allowing that to happen. Surely it is not taking into consideration the interests of some future Fine Gael Government? Is that what it is trying to protect—
In response to comments made earlier, I must state that the real problem is that Fianna Fáil has been too long in Government. It has forgotten for whom it works and who holds the real power. Having gorged itself for so long in office, its desire is to hide the rotten corpse it has left in its wake. The saddest thing—
The saddest thing is the way in which the Government parties so willingly and shamelessly placed their selfish interests above those of the people. In the form of the Bill and at the expense of providing individual citizens with needed and deserved information, they are trying to further insulate themselves and their misdeeds from public examination.
Mr. Coonan: The pendulum, which already leans in favour of Government against the citizen – namely, Joe Soap – will swing definitively and further in that direction. For the people to have an interest, to trust and to have an impact of any substance on the political process, they need to know we have nothing to hide. What does the Leader, her party and the Government have to hide?
Minister of State at the Department of Finance (Mr. Parlon): While listening to some of the thoughtful contributions, I was thinking of places where I spent previous Ash Wednesdays. This is an unusual venue in which to spend such a day.
It is interesting that we are here at this early hour. I have no difficulty with being present and I found the debate stimulating. I thank Senators for their contributions. The debate reflects generally on the high esteem in which the Freedom of Information Act is held. Some of the contributions were thoughtful and some were less so.
Mr. Parlon: I was moved by the personal expressions of interest and concern for the future of my party. Senator John Paul Phelan was concerned that we would become redundant. Many commentators said likewise before the election. We doubled our seats, which is not a bad performance for any party.
Mr. Parlon: —it was regarded as radical and reforming and had the potential to make a significant contribution to the way public bodies conduct their business and how they relate to the public. By and large, the Act has achieved this. No Member has given credit to the fact that since the Act was passed, 67 bodies came under its remit but that number has expanded to almost 380. One of the first jobs I did as Minister of State was to extend it to a further 20 bodies, one of which was the National Roads Authority. The Government has embraced the Freedom of Information Act and has extended the number of bodies that come within its remit. There is a recognition that legislation which impacts to the extent the Freedom of Information Act does on all public administration cannot be frozen in time. We have had five years' experience of the freedom of information legislation during which time it has been kept under constant review. A number of amendments were deemed necessary.
Some Members did not have as much opportunity as others to read the legislation but the Government has decided to extend the period of protection for Cabinet records. Members have different perceptions of what was said but I heard a number of Members opposite accept that the move to shorten the period from five to ten years' is not a bad one and that people do not have a major difficulty with it.
The Government has proposed a number of limited measures to protect records which are intimately bound to the exercise of collective ministerial responsibility, such as ministerial communications relating to live Cabinet agenda items and records of committees set up in direct support of Cabinet. If Members look earnestly at the legislation, they will see that limited changes have been made.
Mr. Parlon: —is intimately related to such discussions. The Government has also moved to protect the decision-making process of Government, which is vital. Like myself, a number of Members are new to the House and may not appreciate the sensitivities of Government decisions.
There is a real concern that the freedom of information legislation has had a detrimental effect on the business of Government. Records are being created not only for the purpose of providing advice or an informed background to a decision but people are keeping an eye on how the advice will look or play in the media. That is a real problem. People are looking at how it will come out under the freedom of information legislation and at how somebody who seeks that information, the media or otherwise, will portray what was sound advice for Government in terms of making decisions. That is not a good way for any organisation, Government or otherwise, to conduct its business.
Stronger protection for records created during the deliberative process is, therefore, necessary but such protection will only apply during the decision making process. Once a decision has been taken, records will fall to be released. There is no change there. The bulk, or 99.9%, of the 52,000 requests made in the different areas would still be possible.
A number of key themes emerged in the contributions, including consultation, the introduction of up-front frees and the certification by Secretaries General of the deliberative process. There has been much focus on the question of consultation. The Government must take decisions on how to order its business in a sensible and practical way. The freedom of information legislation cannot be the major determinant for the Government decision making process. If one is afraid of what will come out—
Mr. Parlon: The process of Government is being shackled by an unhealthy concentration on how information will be construed. Senator Ulick Burke quoted articles from a Sunday newspaper which were totally inaccurate and he put them on the record as if they were fact.
No amount of consultation would change the Government's considered view that additional but limited protections are necessary to protect the process of Government and it would be disingenuous to suggest otherwise.
Mr. Parlon: I will come to that. The high level group was set up by Government to advise in the light of experience of the operation of the Act to date and issues mainly relating to the operation of Government. The aim of the group was to strike the appropriate balance between maintaining the integrity of the Cabinet and the underlying deliberative process and ensuring appropriate level of openness and transparency in the public interest.
The group did not operate in a vacuum. It considered, inter alia, the 2001 report of the Information Commissioner on compliance by public bodies. It also considered the Civil Service Users' Network report of 1999 and the views of the FOI central policy unit of the Department of Finance which monitors the issues and the difficulties arising from the operation of the Act as part of its remit.
Mr. Parlon: It is part of the deliberative process and the report of the group has been published to assist the debate in the other House. I do not believe the Government needs to apologise for the way it has gone about its work.
In regard to up-front fees, the proposal to charge an up-front fee for the FOI stems from the recommendations of the report by the Civil Service Users' Network on the operation of the Act. The intention behind the recommendation is to encourage responsible use of the Act and to better reflect the cost to public bodies of FOI. It is worth emphasising that the Act already requires fees to be charged except for personal information or in exceptional cases. That is very clear in the Act. Such fees relate to the cost of searching and retrieving records and of photocopying. In practice, however, such fees are often not charged due to the additional burden of work imposed by the relevant provisions. It is, therefore, fair to say that the original intention of the Oireachtas that fees should be charged has not been given full effect.
Mr. Parlon: In regard to certification by Secretaries General, the question of whether a deliberative process has ended can be difficult. The Government has decided that more certainty is needed in this area so that records which relate to ongoing deliberations of Departments are not released into the public domain prematurely and in such a way as to undermine the process of Government. It would be dangerous to release information if decisions have not been taken. Under the provisions of the Bill the Secretary General of a Department will decide whether a deliberative process is in progress or has been completed. Where he or she decides the deliberative process is still ongoing, the Secretary General will issue a certificate and the relevant records will not be released. At the end of the deliberative process, the Secretary General will revoke the certificate and records will be released.
In addition, the FOI central policy unit of the Department of Finance will give detailed practical advice to Departments on what procedures should be put in place. There has been much talk about the culture of secrecy in the Civil Service.
Mr. Parlon: Our Civil Service operates in an environment which is very open and liberal by international standards and this will continue to be the case. There have been liberal references to other countries. I refer to Australia. The Secretary to the Department of the Prime Minister has the power to certify that the document is a Cabinet document. Such a certificate establishes conclusively that the document is exempt. That is the position in Australia. In New Zealand a record may be withheld if it is necessary to maintain the constitutional conventions which protect collective and individual ministerial responsibilities or the confidentiality of advice tendered by Ministers of the Crown and officials.
Mr. Parlon: In Canada, the Act does not apply for 20 years to a long and non-exhaustive list of Cabinet confidences, including communications used for rejecting communications or discussions between Ministers of the Crown on matters relating to the making of Government decisions and the formation of Government policy. Neither does it apply to records the purpose of which is to brief Ministers of the Crown in relation to matters that are before Cabinet. In the UK, specific protection is afforded to ministerial communications. Protection is also afforded to information which would or would be likely to prejudice the maintenance of the convention of collective ministerial responsibility or which would or would be likely to inhibit the free and frank provision of advice or exchange of views for the purpose of deliberation.
Mr. Parlon: The extension of the Freedom of Information Act to a wide range of public bodies – which was done not because it was required under the 1997 Act, but because the recent Government chose to do so – and the introduction of other measures such as the Standards in Public Office Act 2001 which established a comprehensive ethos and framework for public officials, show a very firm commitment on the part of the Government to the maintenance of the highest standards of accountability in public life. I confirm to the House that senior civil servants are covered by the Standards in Public Office Act.
The issue of political party costings was raised earlier although I am not too sure who raised it. It may have been Senator Higgins. The practice whereby political parties have been able to have political proposals costed in confidence by the Department of Finance has provided a very valuable contribution to political debate over the years which has been of benefit both to Government and Opposition parties. There are compelling public interest arguments in favour of the Department of Finance being in a position to provide independent, objective advice on costings of particular policy proposals from political parties on a strictly confidential basis, based on the most up-to-date data available. This is of particular importance where such proposals are being considered and are likely to be put before the electorate as part of a party's political manifesto, thereby raising expectations among the electorate which would eventually lead to increased pressure on the public finances.
Reference was made to parliamentary questions and the exemption of briefs. Parliamentary questions are answered in the Dáil. The questions are a matter of public record. Other documents and notes are often attached to these answers to give the Minister a wider understanding of the relevant issue. It is my view that it would be inappropriate to use the Freedom of Information Act to obtain access to these records. The answer to the parliamentary question is what matters.
Contrary to what has been suggested, the measures in the Bill do not radically alter the purpose or intent of the original legislation. Certain provisions impacting on very specific and sensitive areas of Government activity are being reformed to protect and improve the process of Government and a number of other technical amendments are being made. There is no other agenda. The Act retains as its primary purpose enabling members of the public to access information to the greatest extent possible, consistent with the public interest and the right to privacy, and in conducting reviews—
Kitt, Michael P.
Mooney, Paschal C.
White, Mary M.
Mr. McDowell: I am merely looking for a committment from the Leader, given the unprecedented nature of the debate, that there will be a real Committee Stage with a Minister able and willing to take amendments. It is not an unreasonable proposition.
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