Amendment No. 1 in the name of Deputy Lenihan and Deputy D. Andrews. Amendment No. 2 is related to it. Amendments Nos. 1 and 2 may be debated together by agreement.
Estimates, 1986. - National Archives Bill, 1985 [Seanad]: Committee and Final Stages.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
I move amendment No. 1:
In page 5, subsection (1) (d), lines 47 to 49, to delete "with the consent of or at the request of the appropriate member of the Government,".
The whole spirit behind this Bill as adumbrated by the Taoiseach and by other speakers is to ensure that we have an archives system that is independent of Government, can garner the necessary information, do the necessary research and carry out examination apart from any political control or influence and that that be seen to be done. This is important if we are to have any credibility attaching to the archives system. The whole thrust of the Bill, which was welcomed by us, could be defeated and frustrated if it appeared at any stage that a member of the Government, or an appropriate member of the Government as is suggested in section 4, should be in any way involved in the work of the proposed director of the National Archives Advisory Council. I ask the Taoiseach to give serious consideration to the amendment standing in my name and that of Deputy D. Andrews which is designed to achieve what I have just said.
Amendment No. 1 seeks to delete the words "with the consent of or at the request of the appropriate member of the Government" and leave it to the good sense of the organisation that is being established here, established, we hope, with full expertise and capacity for research. The director in charge of the National Archives should be placed in an independent position to do the sort of historical research which is so essential and, above all else, to give credibility to whatever historical research is done and provide an academic basis in the form of information available to historians of the present and the future so as to give a balanced account of how matters have progressed under various Departments of State and by reason of the examination of various public documents.
Similarily, that is the thrust of amendment No. 2 which proposes:
In page 5, subsection (1) (d), line 49, after "records" to add "Provided that the Taoiseach may, where the security of the State or the public interest warrants it, by order declare that certain categories of records shall not be subject to inspection by the Director except with the consent of the Department concerned".
Again to protect the integrity of the system of research established here and to protect the integrity of the director of the National Archives Advisory Council, except where a question of the security of the State is involved, we want to ensure that neither an appropriate member of the Government nor the Taoiseach should in any way interfere with the working of the National Archives Advisory Council or the director of the council.
We discussed similar amendments in the Seanad at length on Committee and Report Stages. The basic problem is that there is confusion here between different elements of the process. First, there is the question of the retention of records dealt with in section 7, the transfer of records after 30 years in section 8 and the release of records to the public in section 10. We are talking here about the powers and functions of the director and the issue at stake relates to his function to ensure that the retention of records is carried out properly, that they are being retained in a manner which will ensure that they are properly looked after and preserved. For that purpose it seemed desirable, and after consideration we decided, to give the power to him to inspect and examine the arrangments for the preservation of records in Departments prior to their transfer to him after 30 years. It is not part of his function, and was never envisaged to be part of it, nor could it properly be, to inspect the records themselves in order to examine their contents for any purpose within the 30 years. His function, prior to the 30 years, relates to satisfying himself that they are properly preserved.
In the ordinary way that function will be fulfilled by his having the power to examine the arrangements for their retention for preservation and to inspect them on the spot to see in what condition they are kept. He is to inspect the premises to see that there is no danger from damp, that they are properly kept and not allowed to become dog-eared and that they are not kept in the wrong kind of containers and so on. It is important that he should have that function because we are all aware that old records can be carelessly looked after by people whose primary concern is with getting on with the job rather than the preservation of old documents.
There is a recognition of the fact that there are circumstances in which the mere external inspection might not give him sufficient information to enable him to satisfy himself of this and, therefore, if he is unhappy about anything, if there are boxes of records which externally may seem reasonably satisfactory but perhaps are showing indications that they may not be containing the records satisfactorily — they might be badly preserved within the box — he can request the right to inspect for the purpose of establishing that they are properly maintained as distinct from inspecting the records, which is not his function and which would be quite inappropriate to give him as a function because these records contain current information, not merely about Government policy, but in relation to individuals. There would be records from the Revenue Commissioners, security records and so on in respect of which it would be quite inappropriate for anybody to have the power to inspect them within the 30 years. For that reason we have made the provision in this form that he would have as part of his functions the inspection and examination of arrangements for the preservation of vital records and, with the consent or at the request of the Government, the examination of governmental records.
Deputy Lenihan pointed to the undesirability of any undue political involvement in archival functions. I agree, but his own amendments simply reverse the process and provide that he would be entitled to see all records except such as the Taoiseach might determine in the public interest as not being appropriate for inspection by him. Apparently it is quite inconceivable that any Taoiseach, even if he spent his time doing nothing else for five years, could inspect all the records and decide which should be looked at or examined——
I would trust the Taoiseach.
The Deputy might trust the Taoiseach—and it is good that the Taoiseach should be trusted—but Taoisigh could not be entrusted with such a wide ranging function because it would be required, in order to ensure that he did not inspect any records which it was undesirable to inspect, that the Taoiseach should inspect all records in order to make the exceptions. Obviously, that is totally impracticable. Apart from involving a political element in the function, it is simply an impractical way of managing it. It is only in very exceptional cases that the director may feel that the inspection of the arrangements may not be sufficient and, in those circumstances, he can ask to look at the records, not to examine their contents, but to make sure that they are properly maintained and preserved.
That is why we have come to this conclusion and to accept the amendment would place him in a position which would be unnecessary, undesirable and, in terms of the functions conferred on the Taoiseach, totally impracticable in that it would impose a burden on him of having to inspect all records to determine which should not be released for this purpose. Basically, the problem comes back to the confusion between the different roles. The director's role is fundamental. He takes charge of records after 30 years, puts them into order and makes sure that they are available to the public. This is an additional function to ensure that, when that point is reached, the records will have been properly preserved and he can satisfy himself in that regard. For that purpose, we have made this provision which is appropriate and, with respect, the Deputy's amendment would be inappropriate to the purpose to which it is directed.
I do not accept the Taoiseach's thinking on this. I have studied in some detail the Seanad debates and the Taoiseach's contribution—or rather the contribution of his stand-in—as reported in the Seanad Official Report, volumes 107, 108 and 109 of 13 March 1985, on 9, 14 and 29 May 1985 and on 25 September 1985. We are proposing to give the director who is charged with the operation of this Bill unrestricted powers, no more and no less. The Taoiseach suggested that he as Taoiseach or following Taoisigh would have too wide ranging powers and he does not want such powers to be given to them. However, he is meant to be running the country and, in those circumstances, his powers are wide ranging. I do not know why he cannot encapsulate our amendment which is tidy, neat and leaves the question of decision making in that context at the door of only one person, namely, the Taoiseach of the day.
Subsection (1) (d) is intended to give powers to various Government Ministers to make whatever decisions are to be made in the context of the subsection. I find that unattractive because it is too disparate and too spread out in its functions. We suggest that our amendment is the proper one. The arguments put forward in the Seanad went to the heart of the Bill and section 4 is the heart and spirit of the Bill because, if you erode or diminish the role of the director, as intended in the section as it now stands without the amendment proposed by us, it affects the Bill in its totality.
The functions of the director are restricted by being made contingent on a request from the appropriate members of the Government. We believe that the director should have less restricted powers of access and this is the most disturbing deficiency in and feature of the Bill. Perhaps the Taoiseach could consider the amendment on Report Stage because it is fundamental to the tenor, spirit and responsibility of the Bill. We strongly urge the Taoiseach to reconsider his rejection of the amendment which, as he properly pointed out, was proposed in the Seanad by Senator Ross and Senator Brendan Ryan.
If I heard the Deputy aright, he seems to be misconstruing subsection (1) (d) in suggesting that it was only at the request of a member of the Government that the director could examine departmental records. That, of course, would be quite inappropriate and unsatisfactory. It is with the consent of or at the request of a member of the Government. In other words, it would be possible for a member of the Government to ask to look at certain records to see that they were properly preserved and to look at those records. The director, in examining the arrangements for the preservation of records, might find in some instances that he could not, from the inspection of the arrangements, satisfy himself that the records were adequately preserved and would seek the consent of the Minister to look at them more closely. With a responsible director, and a responsible Minister, if such a request came forward it would be looked at reasonably.
In the ordinary way the initiative will lie with the director and not with the Minister which would be quite inadequate and inappropriate. It may be appropriate in rare cases but it would be the exception rather than the rule. The point the Deputy is not adverting to is that amendment No. 2 would require that the Taoiseach should, before the implementation of the legislation and the appointment of a director have examined under his responsibility and satisfied himself in relation to them all records from all Departments in order to identify what records the director should not be allowed to see. Even if a Taoiseach spent five years at a job and doing nothing else, he could not examine all the records and satisfy himself as to which ones should not be open to inspection by the director during this 30-year period. Obviously, that is totally impracticable. In so far as the Taoiseach did not do that, in so far as he failed to go through the records, it would mean that the whole process envisaged by the Bill of the release of records to the Director of the National Archives after 30 years would be vitiated. The Taoiseach could not personally examine, within the period all the records and identify all the ones which are of such a character in terms of the personal information they contain, the security aspects, questions of good faith in regard to individuals, or for whatever reason, that should not be shown to anybody, even the Director of the National Archives. A director's function is only in relation to handling of records after 30 years. It is only in relation to them that he is given access and has the job of making them accessible to the public.
Deputies opposite must see that a Taoiseach could not carry out the function it is proposed to impose upon him of satisfying himself in respect of these records. The effect of the two amendments in practice would be that the director would have the power of inspection of all records the moment they come into existence. He could be coming in and looking in at the minutes of Government meetings the day after they are made or the correspondence the day after it is written unless the Taoiseach managed to identify all those different areas and closed them off and all of that for what purpose? It is for a purpose which does not have anything to do with the purpose of the section which is concerned only with the director's legitimate concern that records during the 30 years are maintained in such a condition that at the end of the 30 years they will be legible and will not have deteriorated to the point of not being accessible to the public at that time. That is the only purpose of this and the director is given the necessary power to examine the arrangements. If he is unhappy with that he can ask the relevant Minister if he can look at them more closely for the purpose and any such reasonable request put forward on the grounds that the external inspection does not enable him to satisfy himself would, I am sure, be granted on the basis that the director would look inside the box and see that all was well. He would not start reading through the papers himself. That is the only practicable way to do it and the alternative suggestion is clearly totally impracticable in that it would impose upon the Taoiseach a burden which he could not carry out and would vitiate the whole purpose of retaining records for 30 years before they become accessible to, usable by, visible to and the contents known to the director.
The Taoiseach cannot have it both ways. I am willing to yield on the second amendment because of the point he has made, that it might be impracticable to ask a Taoiseach to investigate each record or have an apparatus seeking out the security issues involved as proposed in that amendment. I regard that amendment as an attempt by us to help the Government, and the Taoiseach, but if the Taoiseach is willing to yield the necessity for any security investigation by him so be it. However, the first amendment is far more fundamental. It is quite noticable that the Taoiseach devoted very little time to replying to that amendment. I will give him a present of the second amendment but I want to discuss the first amendment which is germane to the essential nature of the Bill, the appointment of a Director of National Archives. The sections are concerned with the establishment of a council and the appointment of a director.
Subsection (1) (d) states:
(d) the inspection and examination of arrangements for the preservation of Departmental records and, with the consent or at the request of the appropriate member of the Government, the examination of Departmental records,
The functions of the director in regard to inspection and examination of arrangements for the preservation of departmental records is tied in with the consent of the relevant Minister or, if not with his consent, at the request of the appropriate member of the Government. Therefore, the function of the director according to this section is tied in in a politicised way. He can only function in two ways.
No.
According to the subsection the functions of the director in regard to the inspection and examination of arrangements for the preservation of departmental records will be with the consent or at the request of the appropriate member of the Government or the appropriate Minister. They are the only ways records can be examined by the director. That is the essence of our criticism. The Taoiseach spent a lot of time talking about the second amendment but we are yielding the point involved in that and we are concentrating on the point in the first amendment which is basic to the system the Taoiseach is seeking to establish. If we are to have a system of preservation, examination and research in regard to national archives, if we are to appoint a proper director, a proper council and staff they must not be circumscribed in the way the Taoiseach is proposing.
I must remind the House that I have to put the question on Committee and remaining Stages at 9.45.
I am totally bemused at the Deputy's attitude. If we pass the first amendment all we can do is inspect the arrangements. If the director is dissatisfied with the arrangements and wants to look more closely we will have removed the possibility of his doing so. If we accept the first amendment and delete "with the consent or at the request of the appropiate member of the Government," the director is left with the power of inspecting the arrangements only. We are anxious to ensure that if he is not satisfied with the arrangements there should be some method by which he can look more deeply into the matter. I cannot accept the Deputy's proposal because it would so limit the powers of the director or his functions. There appears to be some misunderstanding between us as to what the Deputy wants us to do.
I do not think there is any misunderstanding between the Taoiseach and the Deputy Leader of Fianna Fáil. Deputy Lenihan has put the matter very succinctly. I do not believe the Taoiseach is deliberately avoiding the issue. But, for the delectation of the Taoiseach and perhaps his bureaucrats, he might reflect on the British Act of 1958, which did not define the functions of the director in detail. In the process that Act left the director more unfettered than will be his Irish counterpart under the provisions of this Bill. I am not a great man for comparing Irish with British Acts or suggesting that we are comparing like with like. But the British have been notorious, in the best sense of that world, for taking care of their heritage, this type of heritage in particular. That is what we are talking about. We are talking about the role and functions of the director of a part of our heritage, namely, the Director of the National Archives. In Britain they take the view that he should not be fettered whereas in Ireland the view taken is that he should be fettered. If I may use the expression, the Taoiseach effectively is emasculating the Bill by virtue of his unpreparedness to accept a very reasonable first amendment.
I agree with Deputy Lenihan, that certainly we can concede the second amendment on the basis that it was in aid of the first. Whether we can concede the first amendment, which is so fundamental, is another day's work altogether. I really would ask the Taoiseach to convince us that what he is saying is correct, that he believes what he is saying to be the correct thrust of his thinking on the Bill.
Could the Deputy recite the provision of the British Act to which he refers?
No, I have not got the Act here.
I have.
The Taoiseach has the advantage of the whole apparatus of State behind him.
The Deputy has suggested that the British Act provides a power which we are closing off here. As I understand it, under the British Act there is no power to inspect the arrangments by the director. This is an additional power we are giving which, as I understand it, the equivalent director in Britain does not have. I repeat. The power here is one which enables him to inspect the arrangements but does not give him power to inspect individual records, which is not permitted, as far as I know under any archival system, where a rule like the 30-year rule applies and where the director's functions are normally confined to the period after 30 years. We are, perhaps somewhat exceptionally, giving him a function to ensure that the records are preserved. In giving him that function we are being more liberal than elsewhere rather than less liberal. I think the Deputy has got that wrong.
I think the Taoiseach should not really engage in debating points on an issue of such importance.
There is no point in saying that black is white and white is black. Section 3 provides for the establishment of National Archives. We had the earlier section setting up the council. Then we have the important section we are now discussing, the appointment of a Director of National Archives and his functions, which functions are set out in section 4, subsection (1)(a) right through to (m). No amount of semantics by the Taoiseach can persuade me or this House, on a reading of paragraph (d), which we are seeking to amend, that these functions of the Director of National Archives are being circumscribed by the inclusion of the words we are seeking to delete. The words we are seeking to delete are "with the consent of or at the request of the appropriate member of the Government,". Paragraph (d) would then read that part of the functions of the Director of National Archives would be "the inspection and examination of arrangements for the preservation of Departmental records." Full stop.
Yes, records which have not yet become archives.
Full stop.
We are seeking to delete the words "with the consent of or at the request of the appropriate member of the Government,". Then we are concluding with the examination of departmental records. I do not want to spell it out for experienced parliamentarians, but it would then read: "the inspection and examination of arrangements for the preservation of Departmental records and the examination of Departmental records".
The clause to which the Deputy is objecting refers to what I might call current records.
As it is now 9.45 p.m. I must put the question: That the amendments set down by the Taoiseach for Committee Stage are hereby made to the Bill, that the Bill, as amended, is hereby agreed to in Committee, as amended, is reported to the House, that the Fourth Stage is hereby completed and that the Bill do now pass".
Is that agreed?
Well, we will agree to it on the basis that the Taoiseach might look at the point of view we have put between now and Report Stage because it is a valid point. It has been seriously put to us——
Deputy Lenihan, please. It is Committee and remaining Stages to be put in one question at 9.45 p.m. by an order of the House.
No, we are not taking the remaining Stages unless this——
I am sorry, but there has been an order of the House made.
Wait now, a Leas-Cheann Comhairle, we do not have to bulldoze legislation of this kind.
Deputy, the Chair is not bulldozing anything. There was an order of the House made that the Committee and Final Stages would be put in one question at 9.45 p.m. I am following Standing Orders.
I do not intend to engage in any row with the Chair or with the Taoiseach on this matter.
You are not entitled to, Deputy.
It is not my style.
It is not my style to take on any Deputy, but the question——
Less of that talk, a Leas-Cheann Comhairle——
Deputy, would you abide by the ruling of the Chair? An order of the House was made today that on this Bill the Committee and Final Stages would be put in one question at 9.45 p.m. Would the Deputy please allow the Chair to carry out its duty? I have put the question. Is that agreed?
If this is what Dáil reform is all about——
Deputy, you know only too well that the Chair has no control over business taken. The order was made and I must put the question.
This whole matter was discussed in the Seanad and we do not have an opportunity of discussing it. It is a disgraceful order. It is denying me my right to speak on a matter of national importance. I object to it very strongly.
Would Deputy D. Andrews please resume his seat? I am surprised at the Deputy. The order of the house was made without——
We are not running a county council here now, a Leas-Cheann Comhairle.
Deputy Lenihan, I resent that remark. You are referring to the Chair. An order that was made here, without dissent, that the Committee and Final Stages of this Bill would be put in one question at 9.45 p.m. I am more than surprised that Deputy Lenihan made that remark.
Question put and declared carried.
This Bill is certified a Money Bill in accordance with Article 22 of the Constitution.