I will speak specifically to the amendment, although obviously it sits in the heart of a section which, together with the following section, forms the core of the Bill. These two sections really are the core of the Bill presented by Government and they go a long way to drawing down the veil of secrecy over the way in which Government operates. They make it almost impossible to find out what discussion is going on between various sections of Government – Ministers, Departments, Civil Service or whatever – about what is currently under discussion, and indeed for some time afterwards. It is with this, I suppose, that we are primarily concerned in this amendment.
It seems to me that there are three different parts of paragraph (a) which are cause for considerable concern. First, there is the substitution of “shall refuse” for “may refuse”. Section 19 of the 1997 Act allows the Secretary General of a Department, at his discretion, to release all the records that are dealt with in that section, that is, records relating to decisions of Government and meetings of Government, if he decides that it is in the public interest to do so. To the best of my knowledge, Secretaries General or heads of Department, the people who make these decisions, have rarely, if ever, decided that information of that kind is to be made available. It seems to me, even in those circumstances, that it is still reasonable to allow the discretion to lie with the Secretary General to disclose such information if it is in the public interest.
I wonder why Government finds it necessary to be as directive as it clearly is by making it mandatory on a Secretary General to refuse the availability of that information, even in circumstances where it might be in the public interest. For example, I am not at all clear about how stands the public interest test in the latter part of section 19, if we are making it mandatory on the Secretary General to refuse the information in the first instance. It seems to me that the public interest test therefore becomes literally redundant.
The second part of the amendment proposed by Senator Henry is, as I see it, the major shift from the word "solely" to "primarily". The 1997 Act was drawn up fairly tightly. It was drawn up specifically to limit the number of records which could claim the protection of constitutional privilege so that it would not be possible for civil servants, by preparing stuff largely, primarily or perhaps to go to Government, to say that this is a record of Government which will not be available now or ever – or at least not for five years or what is now likely to be ten years.
The use of the word "solely" in the 1997 Act was deliberate. It was intended to limit the discretion which deciding officers would have. It was intended to ensure that the maximum possible level of information would become available in the public interest. It was intended specifically to give a stimulus to public debate and to put as much information in the public domain as possible within the confines, which we all acknowledge, of constitutional collective responsibility and so on.
A shift from saying "solely" to "primarily", that is to say, records created primarily for Government, allows, in my view, far too much discretion to people who are making decisions effectively to hide information. There is no requirement that the information should come to Government. It could have been drawn up or formulated with some broad notion that it is simply a policy option which might or might never end up at the Cabinet table.
If we are trying to make some sense of this and the Government is determined to go down this road, we should at least insist that the information or records required have actually come before Government, rather than there being some vague possibility of their having done so or doing so in the future. If we do not try to tighten these provisions in some way, a coach and four can be driven through the Act in so far as it relates to policy making decisions.
Paragraph (aa) contains the new definition of communication between two members of Government or a sub-group of Government. It seems that the protection offered by this new definition will cease once the deliberative process is over. The original section 19 states that “[a] head may refuse to grant a request . if the record concerned . has been, or is proposed to be, submitted to the Government”. The reference to communication between Ministers does not state “has been” but is phrased entirely in the present tense. That a communication between, say, the Minister for Finance, Deputy McCreevy, and the Minister for Health and Children, Deputy Martin, may have been intended to be submitted to Government in the past and was not is no longer relevant. I would like confirmation from the Minister of State's officials that my understanding of this is correct: once the deliberative process is over, communications of this kind between Ministers should be available and are not caught by the ten year rule set out in later amendments.