Amendment No. 1 is out of order so we will move on to amendment No. 2.
Freedom of Information (Amendment) Bill 2003 [ Seanad ] Report Stage.
Will the Ceann Comhairle explain why amendment No. 1 is out of order? I have had no notice of that.
I sent a note to the Deputy this morning.
I was here this morning and I did not receive a note. I would like an explanation.
Amendment No. 1 is out of order as it is in conflict with the principle of the Bill.
It is in direct challenge to the Bill.
Because it is in conflict with the principle of the Bill, it cannot be taken. The Chair has ruled on the matter and we cannot have a debate on it now. If the Deputy wishes to discuss the matter he can come to my office.
Will the Ceann Comhairle please accept that it is untenable, in the limited time available for Report and Final Stages of this Bill, that I have had no prior notice of such a ruling? That places me at a distinct disadvantage.
I will find out what happened to the ruling that was made and sent to the Deputy and I will communicate this to him.
Amendments Nos. 2 and 4 may be discussed together by agreement.
I move amendment No. 2:
In page 5, between lines 7 and 8, to insert the following:
"1.–The provisions of this Act shall not commence until the Information Commissioner has conducted a review of the Act under section 36 of the Principal Act and thereafter different sections may be commenced by the Minister as appropriate.".
The purpose of this amendment is to seek a delay in the implementation of the various sections of this Bill until the Information Commissioner has had the opportunity of conducting a review, as is his statutory right under section 36 of the Freedom of Information Act 1997. I seek this because in this Bill the Government has attempted to turn back the clock. For years now, we have been attempting to embrace openness in the way in which we transact our business in the Dáil, greater openness in Government and a commitment that citizens are participants in this decision making process. As a result, citizens have a right to information about decisions made in their name. It improves the quality of decision making if Ministers know that in five years they will be accountable for their decisions. That makes them more concerned about ensuring that the decisions they take are defensible, that they consider more widely all the ramifications of their decisions and that they take decisions in a more mature and reflective way. That is good for the public, the Oireachtas and the country as a whole.
Now the Government comes in here with a Bill for which it sought and received no mandate from the people. It was not listed in its programme for Government. There was no opportunity for the public to be consulted about this dramatic legislation. There was no opportunity for public debate. It is indeed a step back to the old ways. It has heard nothing, seen nothing and learned nothing over the years. We have had numerous tribunals drawing to the attention of the Oireachtas the problems of secrecy in the way business is done. The Government introduced this Bill at five minutes to midnight. The obligation to be accountable comes upon it on 21 April and it is trying to step back from that obligation.
Not only has there been no consultation, but the Government is attempting in this Bill to throw the veil of secrecy far more widely than we have ever seen it. It wants to redefine Government to constitute a group of people who may not even be officials employed by the State. Once these groups are certified they become similar to the Cabinet and have the full protection of secrecy afforded to them. This is an unprecedented move. It has also reversed the presumption of openness which was at the core of the original Freedom of Information Act. At the core of that Bill is that information should only be denied if it could be proved that harm would come from releasing it. The Government is now reversing that obligation. It is for those seeking information to prove there is benefit. Those making these decisions will be freedom of information officers. The Government has also stitched caution into other areas. In future, freedom of information officers will have to consider not only the impact on their body, but on countless other bodies that might arguably be impacted on. It will embed a deeply conservative approach to freedom of information requests.
At the heart of this we also see an attempt to re-balance – as the Government chooses to call it – the relationship between the Ministers and elected representatives, particularly backbenchers in this House. For example, in future we will be unable to see the briefings about Estimates when they are presented to this House. That was an opportunity for Members of the Dáil to see how Estimates were put together and what were the issues that would create difficulty for Ministers in accounting for the way they spend their money. This allowed Deputies to be sufficiently well informed to ask the right questions. Now the Minister is introducing a system whereby all briefings provided for Ministers will now be suppressed. When speaking on Estimates debates there will be no opportunity to see briefings unless Ministers want to release information. Difficult issues about which Ministers ought to be questioned will be suppressed as a result and the House will lose out.
Similarly, the Government is trying to re-balance its relationship with the media, which had been clearly set out in the Freedom of Information Act. Members of the media have a right to ask questions and obtain information of national importance. Now, however, the media will increasingly be denied that access. By contrast, the Government with its 81 spin doctors will have the opportunity to set out and release information other than under the Freedom of Information Act in a way that reflects favourably on it. All of this is about strengthening the Executive at the expense of those of us who are elected here to hold it accountable and the media which also attempt to hold it accountable.
The Government is unwittingly, as far as the Minister is concerned, creating a charter for weak-willed spineless Ministers. We are told by the Government that if Ministers had to account for their decisions five years after those decisions were taken, this would totally undermine collective responsibility. We are led to believe that citizens must sacrifice their right to information so that Ministers will take their obligations seriously to put into memoranda their views about a decision that is coming up. This is ludicrous. If such Ministers exist – none has been identified yet – who are suppressing information due to the fear that it will be shown in a bad light in five years' time and are not willing to put forward their views until they reach Cabinet because of this, they do not deserve to have the seal of office given to them by the President.
This has nothing to do with better governance. We have not had a shred of evidence that any release of information damaged the process of government. We asked the high-level group and the Minister to cite examples. The Minister scorned the idea that the officials would release such information and had no evidence to offer. This is a shot in the dark based on a belief that the Government will suffer if this is changed.
In reality for the past five years, Ministers have been operating under an obligation to release information starting on 21 April 2003. The Government has not caved in during the past five years. Whatever criticisms we can level at it, the Cabinet has not ceased to function as a body that can make decisions. It may be making bad decisions, but it is not incapable of making decisions. There is not a shred of support among the public, informed academics or the Oireachtas at large for this change. The only support for this change comes from the 15 people who see their backsides being exposed by the fact that they have to become accountable on 21 April.
This is bad legislation and my amendment seeks to have it deferred until the Information Commissioner can properly examine the operation of the Act and the impact of these sections. We should have a review and none of these changes should be introduced until that much wider consultation takes place.
Members of the press, who are not present for this debate but may be listening to it, may feel that what will be said over the next four and a half hours will be a repeat of what was discussed on Second and Committee Stages. That will not be the case. In the course of Committee Stage which I believe is a record for this Dáil, Opposition Members having closely scrutinised the Bill for more than 20 hours, we learned a considerable amount from the Minister for Finance and from the two replacement Ministers who stepped into the committee during the time the Minister for Finance was in Greece. In particular, we learned that a number of the amendments tabled by the Minister on Committee Stage will make the Bill far worse than when it was first published a few weeks ago.
The Information Commissioner in his report refers to the constitutional unrecognisability of the committee of officials and others who from now on, for the purposes of this Bill, constitute the Government of this State. On Committee Stage, the Minister added insult to injury by repeatedly confirming that the Government will consist as heretofore of Ministers and Ministers of State and will now include officials and advisers. While some advisers are extremely exalted and well qualified, some are essentially constituency managers for their Ministers. While some advisers come from the public service, others come purely from a party political background. They will now form part of the Government without let or hindrance and so will any other persons or group whom the Government chooses to so designate as forming part of Government.
In an amendment which I believe was intended to placate criticism of the Bill particularly from members of the Minister's party such as Senator Mansergh, an experienced public official and civil servant of the highest calibre, the Minister introduced, both in regard to what constitutes Government and Government deliberations, a new process of certification whereby the number of certificates will be published by Secretaries General in an annual report. However, there will be no necessity to disclose the titles, subject matter or membership of these committees of Government. In effect, for the first time since the British left this part of the country, we will once again have secret Government.
The Labour Party wants this Bill to receive proper legal scrutiny at the highest level. This is why we have asked for the Bill to be suspended to allow a process of consultation to take place through the Office of the Information Commissioner in order that we can all stand back over a period of a year and consider at some length the very profound implications of the Minister's proposed changes.
Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.