Having listened to the Minister last night, we can see that the question is whether we need freedom of information as a protection against the abuse of power. To find out one answer to this, we could read yesterday's newspaper reports of the candid views of the Minister of State at the Department of Foreign Affairs, Deputy Roche, about the second Nice referendum. Speaking in Poland, the Minister of State said that he had his retaliation ready before the votes were counted in case there was a "No" vote. What was this retaliation? If things went wrong, he would blame "The Irish Times, The Irish Times, The Irish Times.” He intended to blame the media. The Government has sought to present its dismantling of the Freedom of Information Act as being of interest only to a small group in the higher echelons of the media, but this is a big lie.
All through history, hubris has been a deadly disease of exaggerated pride and self-regard that takes hold of those who have been in power for too long for their own good. Its hallmark is overweening presumption – presumption was one of the sins in the old Catechism and is a fatal flaw in anybody who exercises power in a democracy. The current proposals on freedom of information have this hallmark in spades. The power elite that dominates this Government is showing many distinct signs that it has succumbed to this disease.
The Government regained office in June without any signal to voters of an intention to change the law in this area. The vote count was barely complete when it embarked on the process of dismantling the Freedom of Information Act 1997, without any public notice of an official review or any mandate on those engaged in the review to consult widely. No consultation paper was pub lished at the conclusion of this review. Not a single case has been presented of positive damage to the efficient, as distinct from the convenient, operation of Government from the working of the 1997 Act over the past five years. We have now heard from the high level review group of civil servants, the Information Commissioner, a variety of journalists from the NUJ, the national newspaper proprietors and organisations representing the voluntary and community sectors. In none of these presentations, nor in any of the speeches from Ministers or the Taoiseach, have we heard one example of a Government decision being perverted or delayed or of an increase in the cost of a Government action or the failure of any Government activity as a consequence of the implementation of the Act.
What we have heard is the loss of the Government's power to dominate the release of information through the use of spin. This is about the people in the "west wing"– the Department of Foreign Affairs and the Department of Finance – and their enormous fear that an enterprising journalist, community association or individual will write a letter saying that under FOI they want the information about the cost of the stadium in Abbotstown, about the issue of rail safety, about the siting of dumps in their vicinity or information on their records. The Government fears that small silent capacity of an individual journalist, a Member of this House, a community association or an individual citizen to question the 71 or 82 "spinmeisters" employed by the Government. Instead of the guys in the west wing saying the speech is locked, there is uncertainty about how the spin will go. The spin comes out on day one but three days later we can read the truth under the Freedom of Information Act. For a Government so determined to lock down every piece of information, the Freedom of Information Act represents an inconvenience to the efficient running of its control of spin.
The Bill goes far beyond the recommendations of and the amendments suggested in the official review by the high-level group of civil servants. When they addressed the joint committee, four out of five of the members of the review group made it very clear that their review was an input into the consideration and review of the operation of the Act. As dedicated public servants, they are competent people to provide such input. However they had no mandate to offer consultation or to undertake consultation. They were simply giving input on the basis of a particular expertise and experience of the Act. That expertise and experience is all on one side of the fence, which they acknowledged at the hearings. Their experience is as senior civil servants who were asked to give an expert view. While they gave that view, they did not consult anybody because those were not the terms of what they were asked to do.
This Bill introduces far-reaching amendments way beyond what they suggested. When one puts their evidence together with the superb presen tation to the committee by Mr. Kevin Murphy, the Information Commissioner, one sees that anybody with serious experience at government level, within the Civil Service or with political experience would have to be extremely concerned at the wisdom of expanding the definition of Government that is included in the Bill. Mr. Murphy carefully and appropriately warned that he could foresee costly litigation in future as a result of the widening of the definition.
The Taoiseach came to the House to explicitly insist that the changes in the Freedom of Information (Amendment) Bill would have no bearing on the search by a citizen for personal information. This assurance was repeated by the Taoiseach this week, by the Minister last night and by the Minister for Justice, Equality and Law Reform in one of his more verbose and over the top confident comments as the lawyer of brilliance that he is. While I do not want to use the words "lying" and "misleading" about the Taoiseach it is one thing to impose difficulties on people like journalists and politicians; it is another totally reprehensible thing to intervene where people are searching for personal information in the most difficult and at times traumatic personal circumstances. This would take away from them some of their hard won rights to search for information.
The assurances given by the Taoiseach that there is no change in the ability to access personal information have been repeatedly exposed as a sham by organisations representing victims of abuse, adopted people, medical journalists and most importantly by the Information Commissioner, who set out specific areas where proposals in the Bill would hinder such personal searches either by the individuals concerned or their relatives.
Why should the Government do this? There are about 30,000 people still alive who were incarcerated in institutions by the State. There are some 40,000 people who were adopted through legal adoptions since the enactment of the Adoption Act 1952. There are probably another 10,000 subject to informal adoption and fostering arrangements. Thousands of people have been through the care system. There are people who need access to the medical records of their children who died and whose organs were retained, which was the subject of the Dunne inquiry. There are identifiable groups in the State who number considerably more than 100,000 with the most serious personal reasons for wishing to access their personal information. The Government proposes to limit that right.
The Taoiseach and the supposedly most brilliant lawyer in the Government, the Minister for Justice, Equality and Law Reform, Deputy McDowell, give sham assurances that there are no changes. I know the Taoiseach, the Minister for Justice, Equality and Law Reform, and the Minister of State, Deputy Parlon are all people of good will and general human kindness. I wish they could have come and listened to Colm O'Gorman from One in Four speaking to the joint committee. I wish they could have listened to their colleagues, Deputy Conor Lenihan and the chairman of the committee, Deputy Fleming, jumping to assure One in Four and its representative, Mr. O'Gorman, that the Bill would be amended to take account of the restrictions being put on the search for information.
In his speech last night, the Minister for Finance, Deputy McCreevy, threw dust on that in a way that I found insulting in the extreme. He reassured the House that the legislation would stand and there would be no change, simply because he says there will not be change. However we have it on the expert authority of the Information Commissioner, the organisations and representatives of people affected, a leading medical journalist from the Irish Medical Times, Mr. Bowers, who is well renowned as an investigative journalist, the Irish Council for Civil Liberties, and the organisation The Wheel, representing hundreds of voluntary organisations, that there is a significant change in the right of people to personal information.
I do not know it the Minister has had the opportunity to have contact with people who have been searching for information. I have a copy of a file of a person who was incarcerated by the State in a series of institutions. It runs to more than 100 pages. The individual, now in his or her 50s, was beaten, sexually abused and starved. The individual has had to live with this trauma all his or her life. A couple of years ago, the Taoiseach made an apology on behalf of the State to people who were abused in institutions. Some of these people are now looking for information about themselves, the institutions and their policies and the Departments that interacted with the institutions. These files contain the story of a life. One will see how a three year old child was judged by a doctor or by the courts to be disruptive and deserving of a 13-year sentence in a place like Letterfrack.
This Bill proposes to change access to records from records that relate to the person to records that contain direct information about the person. I am sorry the Minister for Justice, Equality and Law Reform is not in the House. If he were on the Opposition benches he would be making the most vocal case to say that the changes in the Bill limit the future right of people to access complete files. Many institutions and religious orders say they did not keep information about people. Many orders have destroyed the information they did keep. People embarking on a search of records will be told no information is available, as it was never kept. All one will have is the word of a person that one was in an institution for seven or ten years. Other than a name on a school roll book there is apparently no other information. People will no longer be able to access records about the dealings of the Department of Education and Science with an institution. Two weeks ago a meeting was held between a number of organisations that represent former residents of institutions. They decided they might return the apology the State gave them, partly because of what this Bill, among other things, is trying to do. This is a source of shame for the Government.
The Bill proposes sweeping revisions in procedure and gives dramatic new powers to Ministers and senior officers to refuse access to papers. One massive legal flaw associated with the new far-reaching definition of the term "Government" has already been uncovered by the Information Commissioner. In evidence to the Joint Committee on Finance and the Public Service, he outlined an appalling vista of continuing litigation directly arising from this clause in the Bill. How hubris prone is the Minister for Justice, Equality and Law Reform, who clearly does not like any bad reflection on his legal brilliance however much he is in error?
In pursuing these changes, the Government and its apologists have tried to present opposition to the measures as the narrow exclusive concern of the media and those engaged in politics, and of no concern to ordinary people who, we are told, prefer Manchester United versus Arsenal to political debate. How wrong the Government is. An amazing range of public interest bodies, voluntary and community groups have expressed alarm at the consequences of the proposed changes and want the entire Bill to be dropped or delayed until full public consultation has established the proper limit to changes.
The shadow hanging over this Bill is the advice and conclusion of the late Chief Justice, Liam Hamilton, at the beef tribunal. He said:
I think that if the questions that were asked in the Dáil were answered in the way they are answered here, there would be no necessity for this inquiry and a lot of time and money would have been saved.
Like all of those prone to hubris, the Government refuses to learn from history.
It is ironic that the Government now proposes to shelter from public view the briefing papers for parliamentary questions and legislation. Accountability to Parliament will be limited by whether a question is reached on the Order Paper, what questions are asked if it is reached and whether the answer sets out to mislead by withholding key information. This is the tactic that led to the beef tribunal. This is a certain recipe for the appalling vista outlined by the late Chief Justice. Information is withheld and suppressed and this will undoubtedly lead to abuse and persistent cover-ups. It is a case of returning to the bad old days and proof positive of how little the leading figures in this Administration have learned from the events of the past decade.
Everyone is concerned about the appalling war in Iraq. The Government appears to have dragged us along on the coat-tails of the "coalition of the willing." We seem to be one of the 15 willing states that are unable to state so publicly. Military overflights and landings at Shannon can be revealed through the mechanism of parliamentary questions and through the operation of the Freedom of Information Act. Military flights affect three Departments, namely, Defence, Transport and Foreign Affairs. Military landings and overflights particularly concern our relationship with the United States and Britain. Under the new legislation it will be possible for the Secretary General of the Department of Foreign Affairs to certify such information as being outside the Freedom of Information Act. This was confirmed to members of the Joint Committee on Finance and the Public Service. This certification, that will not necessarily be published and cannot be appealed to the Information Commissioner, may in turn lead to a change in the current practice where, either through questions in this House or other mechanisms, we can get this information.
In our debate at the committee, we heard how a routine communication from an ambassador in Germany about reports in the German press on the Church of Scientology were deemed to be outside the Freedom of Information Act by the Department of Foreign Affairs as it reflected on relations with another country. This was done even though they were in the public domain. How much more sensitive will the Department deem the question of military use of Shannon Airport by the US or other countries? This would earn a five-star, most sensitive rating and this would be proper. In this Bill, the Secretary General of the Department will now have the power to put this into the certification process making it exempt from freedom of information requests.
This brings us back to the question of how this information will be dealt with. Members will have no right to see the supplementary papers if we table a parliamentary question. Instead, we will be left with the spin masters who will tell us what they choose to and no more. We will probably have to use the United States freedom of information legislation to find this information. I profoundly disagree with the United States policy on the war but the US is a great democracy, which has had a Freedom of Information Act for 40 years. The Act evolved partly as a result of the country's experience in the Vietnam War. It is a good Freedom of Information Act and our Act was highly influenced by it. Irish legislators and journalists may have to apply under the US Act to find out about American military movements through Shannon Airport and overflights of Ireland. The Minister will reply that the Government will continue to voluntarily provide the information because the Government retains the right to provide information whenever it wishes.
However, the information will not be provided as of right. As citizens, we will get information in the context of "The West Wing" spin and speeches and not as a right in a free country. Ironically, the amended legislation will inhibit our right to information but we may be able to obtain the information under the US Act or the limited British legislation in this area. The Freedom of Information Act 1997 has been good for Ireland. It has been part of the positive changes that have opened the door and let in the light. The country has done well not only economically but also culturally and the self-confidence of its people has grown. The Northern Ireland peace process has also played a role in this regard. A new culture of openness and sensitivity and a greater willingness to debate has evolved as we attempt to find a serious way to address the problems that face us.
The Government parties, having won their second term in office, have decided that this culture is threatening their "Masters of the Universe" domination of everything in the State and they have decided to come down on it. A reasonable review of the Act would point out that the people should be consulted first to ascertain what went right or wrong with the legislation. For instance, a serious review of the Act would examine the position of the Department of Justice, Equality and Law Reform on the legislation. Why can our soldiers, correctly, access personal information under the Act while our gardaí are not trusted with similar access to information about themselves? A review of the Act should examine not only the areas where the Act has worked well but those areas where more information would assist individuals shine a light on administrative procedures and establish where the Government and public bodies are getting it right and wrong. How else are we to progress if we do not have informed debate?
However, the Government parties, unfortunately, have run badly scared of that prospect. They want to tie down the local and European elections in a year's time and then they want to tie down the next general election because they hope to be in Government forever. Muzzling the Act is one of the ways in which they hope to achieve that aim. It is a determination that they will come to regret.
