The Deputies proposing this motion will not be surprised to learn that the Government are substituting a counter-motion to highlight certain aspects of the recently published Programme for Government, which address and supersede several of the points raised in the present motion. The remaining parts of the motion are misconceived, if not, indeed mischievous, in some respects. The motion as put down seeks to draw together a number of matters which are at best, loosely related and, in some cases, totally unrelated. It ignores the very significant initiatives taken by the Government. It has all the appearance of a motion which is aimed at attracting media attention rather than attempting to deal with the real issues which have given rise to public concern in recent times.
I will comment later on the specific areas and functions proposed in the motion but, first, I must address the very concept of the new body which it is proposed to establish — the parliamentary ethics commission. The Government are faced with very stringent budgetary targets in the period up to 1993. The achievement of these targets will require very tight control of public expenditure. Yet it is clear that Deputies Bruton and Mitchell envisage the establishment of yet another State body in the shape of a parliamentary ethics commission. It seems inevitable that the commission would need a secretariat which, on past experience, will grow of its own accord unless tight control is exercised. But because of the sensitive nature of its operations, such a secretariat would be almost immune from any interference by the Legislature. This is a recipe for increasing the Exchequer pay and pensions bill and adding yet another layer of bureaucracy. Deputy John Bruton, when he was in Government, spent a lot of time talking about cutting back on what he called quangos, but now he wishes to create another one.
Altogether apart from the financial considerations, I am most surprised that Deputies Bruton and Mitchell are proposing that the function of ensuring that proper standards of behaviour prevail among Members of this House be handed over to an outside body, however honourable and worthy its members may be. The role proposed for the body would clearly overlap with and undermine the Committees on Procedure and Privileges. It seems to me highly questionable that any outside body should be involved in the running of the internal affairs of the Oireachtas. Article 15.10 of the Constitution gives the Houses of the Oireachtas the exclusive right to determine their own rules and procedure. To have an outside commission interfering with the rights of Members would seem to be quite inconsistent with the spirit of that provision.
Article 15.10 reflects a very basic and long-standing principle which is fundamental to our Constitution and with which I am sure the Deputies are familiar — that is, the separation of powers between the Legislature, the Executive and the Judiciary. The maintenance of a proper balance between the three branches of Government requires that each branch must accept responsibility for its affairs and refrain from interfering in the affairs of the other branches. I cannot see how the imposition of the proposed commission would be consistent with this fundamental concept in our Constitution.
If there are things in the behaviour of the Members of this House which are upsetting Deputies, why do they not bring such matters to the Committee on Procedure and Privileges, which would seem the natural forum for such concerns? To suggest, as the motion clearly does, that this House is not capable of administering its own affairs, in effect, is an insult to every Member of this House and to those who elected them. Is it being suggested that the electorate have elected a Legislature which is so corrupt that we cannot order our own business or regulate our own Members? There is not one jot of evidence to support such a contention and I am sure the electorate, no matter what their party leanings, would not accept such an insult to their capacity to decide who will represent them. Of course, there may be some in this House who feel that their expert knowledge entitles them to say what kind of people the electorate should choose, who would like to appoint such people directly without the bother of elections. We reject such arrant nonsense. We have been elected to do a job, must do it and I have total faith in the electorate to exact the penalty if we fail.
Deputies may argue that the proposed commission would consult the Committees on Procedure and Privileges and that this should allay any fears. This would not be good enough. As I said earlier, I am not satisfied that the machinery of State requires any further layers of bureaucracy but, even leaving aside this fundamental point, consultation between the Committees on Procedure and Privileges and the commission would not guarantee agreement on recommendations. Once the consultation had been completed, the commission would be free to exert pressures on the Members of this and the Upper House to such an extent that we could be reduced to shadow-play.
The motion envisages that the proposed commission would determine rules of conduct for Members of the European Parliament. I imagine that the European Parliament could have serious reservations about the prospect of a distinguished but unelected trio making rules for some of its Members. The Deputy's party like to talk about their commitment to Europe but, when it comes to a concrete issue like this, there seems to be a distrust of Europe. For the Government, I can say that there is no hesitation in leaving the regulation of Members of the European Parliament to that Parliament.
With regard to councillors, I wonder what right a parliamentary ethics commission would have in interfering at local level. Local councillors already make a declaration of their interests. This declaration should be sufficient to prevent any hidden wrongdoing but if there is a need for further safeguards, it is hardly a matter for a parliamentary commission.
As to the register of Members' interests, I am afraid that this motion seems to betray total ignorance of the contents of the recently published Programme for Government. If I might quote directly from it:
A register of Members material interests will be established from September 1992, and available in the Oireachtas Library.
In fact, I think this provision goes further, in the case of backbenchers, than the proposals in this motion. The details of the operation of this register will be worked out in the Committee on Procedure and Privileges and any comments which the Deputies may have on this matter might more profitably be directed at that committee.
On the question of public funding of political parties, once again the main Opposition party have attempted to link this question with the general issue of ethical standards in public life. I suspect a degree of opportunism here, in effect that they are trying to carry this proposal through on a wave of enthusiasm for new procedures concerning standards of individual conduct. We are not prepared to go along with this linkage. The proposal would involve significant additional expenditure at a time when constraints on public expenditure are affecting many public services. I am not at all sure that the taxpayer would welcome being forced to contribute to political parties. This is, in any event, a complex question, the pros and cons of which would have to be debated at length. We are not prepared to allow this matter to be rushed through without proper consideration nor are we prepared to defer action on improving standards in public life while it is properly considered.
As regards State bodies, I would like, first, to give some background on the different types of bodies which exist under this heading, how and why they have come into being, and the manner in which they are answerable to the Oireachtas.
State bodies are broadly of two kinds, commercial — sometimes called trading bodies and non-commercial — or nontrading — bodies. The commercial bodies fund the major part of their operations from trading revenue without current Exchequer subvention, while the non-trading bodies rely on the Exchequer for the major part of their income.
The process by which the commercial State sector evolved was essentially an ad hoc one, based on responses to various needs at various times. Considerations of national policy and the unwillingness or inability of the private sector to undertake certain tasks were the main factors contributing to their development. Because they are providers of goods and services in the marketplace, commercial State bodies operate with normal commercial freedom subject, of course, to the overriding consideration of the public interest. The accepted practice is that, while the appropriate Minister is responsible for their overall policy, the bodies themselves have independence in conducting day-to-day operations. Management is under the control of a board appointed by the appropriate Minister or the Government. The commercial State bodies play a significant role in the Irish economy and are represented in many key sectors.
The non-commercial sector consists generally of organisations established by the State to carry out promotional or regulatory duties. These bodies were established so that functions which would normally be performed by Government Departments could be better performed outside the Civil Service structure. Because of this, while the appropriate Minister is accountable for policy, day-to-day activities are matters for the bodies themselves. I would make the point, however, that non-commercial bodies are subject to closer and more regular supervision than their commercial counterparts. This is because their functions are mainly akin to those of Government Departments and their funding comes largely from the Exchequer through voted moneys.
Despite the emphasis on providing goods and services for the marketplace, commercial State bodies differ from firms in the private sector in several significant respects, namely: they are in public ownership, having been established or acquired with public funds; a substantial proportion of total national resources is under their control; some enjoy monopoly or quasi-monopoly positions in strategic sectors of the economy and some are required to engage in activities of a social or non-commercial nature, having regard to wider national considerations.
As the ownership of State bodies is vested in the State, the ownership rights exercised by a Minister are on behalf of the community as a whole. The interest of the body is essentially, therefore, the public interest and the directors are obliged at all stages to have regard to considerations of public policy in their operations. Such considerations do not arise so acutely in the case of private sector bodies, which are predominantly profit-oriented. Directors of State bodies are accountable to the appropriate Minister for the proper discharge of business within the relevant policy framework. The Minister is, in turn, answerable to the Oireachtas for the general policy and performance of any State body for which he is responsible.
The reports and accounts and operational results of the commercial State bodies are subject to examination by the Oireachtas Joint Committee on Commercial State-sponsored Bodies. The committee may also examine common issues in relation to board responsibility, structure and organisation, accountability and financing, together with the relationship with central Government and the Houses of the Oireachtas. The chairmen and chief executives of such bodies are normally required to appear before the Committee to answer questions in relation to the affairs of their organisation.
In the case of commercial State bodies there are, broadly speaking, two types of legal entity. A State body may be constituted as a statutory corporation, or board, by its own separate statute. Such a statute usually sets out the powers and functions of the entity, restrictions and obligations on it, the manner of appointment of its board and staff and so on.
Alternatively, a State body may be formed as a limited liability company, an ordinary company registered under the Companies Acts, in which all or almost all of the shares are held by a Government Minister. The tradition has been that the shares are held by the Minister for Finance, because of his powers and functions under the Constitution and the Ministers and Secretaries Act, 1924, although in a few cases the shares are held by the Minister under whose aegis the body in question operates. In nearly all cases of this kind, however, a specific statute is also enacted. This gives the Oireachtas an opportunity of debating the policy issues relating to the mandate of the body in question.
Non-commercial bodies can be established on either a statutory or a non-statutory basis. The statute will usually provide for the appointment of directors and staff and deal with the question of funding. In the case of non-statutory bodies, authority for Exchequer funding is provided solely by the Appropriation Act and the normal conditions relating to the payment of grants-in-aid apply.
So much, then, for the background to the State sector, both commercial and non-commercial. It is important that we know what precisely we are talking about when discussing this subject. Considerations that apply to commercial plcs do not always apply to boards or authorities. Commercial State bodies give rise to issues which may not arise in the case of their non-commercial counterparts.
I should like to make a comment about the supervision of these bodies. There are already in existence a number of mechanisms designed to assist both the Department of Finance and parent Departments in exercising their supervisory roles in this area. In carrying out this role, however, care has to be taken, particularly in the case of commercial bodies, that the principle of the autonomy of these bodies in their day to day operations is not diluted. There is a fine balance to be drawn here, and this is why I was at some pains to point out the particular features of the various kinds of State bodies which we have.
Various statutes governing the activities of State bodies give the Minister concerned, and in many instances the Minister for Finance, an important role in crucial areas of operations. These include the appointment of directors; borrowing by the body concerned, with or without State guarantee, receiving annual reports and accounts; the formats of these accounts as well as the establishment of subsidiaries in some cases. Capital budgets are examined in the context of the public capital programme, while major capital projects, whether involving Exchequer funding or not, are subject to scrutiny. The corporate plans of the bodies concerned are also subject to examination. Indeed, the usual complaint from the State sector is that Departments and Ministers interfere excessively in their affairs.
It must be recognised, however, that while procedures can be refined and improved, perfection is elusive. One cannot legislate against dishonesty. All that can be done is to put in place the best possible systems, including systems of internal audit, to discourage unacceptable behaviour and impose strict sanctions where such behaviour occurs.
The revised Programme for Government contains a number of pledges relating to the State sponsored sector, in particular in relation to the issue of disclosure of interests, and to the operation of the bodies in question in accordance with the highest standards of ethics and behaviour.
As well as the question of directors'/ management disclosure of interest, employees' codes of conduct, internal audit functions and the issue of competitive tendering are all mentioned.
Every one of these issues is, in fact, addressed in a report which has recently been completed by the Secretary of the Department of Finance on the principles which should govern the relationship between Departments of State and the State bodies under their aegis, together with subsidiary and associated companies of the bodies in question. This report and its findings are now under active consideration by the Government.
The examination conducted by this eminent public servant was designed to ensure that the traditional standards of integrity and conduct which are appropriate to the public service are maintained and that the interests of the community and the State, as owner of these bodies, are fully taken into account in their operation. Among the questions examined were, as I mentioned earlier, tendering for contracts, the monitoring of acquisitions and reporting and accountability. The question of appointing civil servants to the boards of State bodies is also examined in the report. When they have completed their consideration of the report it is the intention of the Government to prepare and implement appropriate guidelines for State bodies based on their findings.
I should like to say a brief word now on the specific issue of codes of conduct and disclosure of interest. The public sector in Ireland has always had a high reputation for ethical behaviour and fair dealing. In many cases decisions about what is ethical or fair are clearcut and will always remain so to any reasonable person. In certain circumstances, however, an element of doubt or ambiguity may arise. To help in these situations and to protect both the organisation and the individual, it is desirable to have a written code of conduct. Such codes are, in fact, already in place in many organisations, both private and public.
A very important element of such a code is disclosure of interest. This is a necessary protection if decisions are being taken at the board of a company or among senior management. It is also a safeguard for the person involved in protecting his good name and bona fides. When it is standard procedure it normally gives rise to very little difficulty.
The report of the Secretary of the Department of Finance on guidelines for State bodies, which I mentioned, addresses the question of disclosure of interest and makes certain recommendations in the matter. While these are still under consideration by Government, and I would not wish to anticipate their findings, I can state at this stage that the recommendations are in no way at variance with the proposals in this regard contained in the revised Programme for Government.
In a democracy such as ours, Government exists to serve the people. Therefore, it is entirely appropriate that the citizen should be granted reasonable access to the records of their Government. The Government's attitude in this regard was clearly outlined by the Taoiseach in his address to the last Fianna Fáil Ard-Fheis:
A truly open society is one whose citizens have access to as much information as possible on the way they are governed, consistent with the right of individuals to privacy and the ability of the Government to function effectively in sensitive areas such as security, foreign affairs, taxation, and budgetary policy — as well as in day-to-day administration. The Government are considering the provision of greater freedom of information and the reform of present official secrecy provisions. Freedom of information legislation would of course require a fairly fundamental change in the working habits of public administration and necessarily will take time. All aspects of such legislation must be examined, in the light of the experience of the limited number of countries, where it is already in operation.
The existing law on official secrecy is almost 30 years old. It has served the country well in most respects. The Government are, however, concerned that, in its provisions dealing with "authorised disclosures", the current legislation is unnecessarily biased towards the withholding of official records and does not accord sufficient rights to the citizen to be informed of the workings of Government.
Change in the area of freedom of information will represent one of the most farreaching reforms of our system of public administration since the foundation of the State. Once legislation is enacted, official files, save in a few particularly sensitive areas, will be freely accessible to the general public. One of the trends with which Government Departments have been faced in recent years is ensuring that their communications to the public are concise and intelligible. While this applies to the internal communications within a Government Department, or between Government Departments, officials are entitled to assume that when they write or the Ministers, whom they brief, have a familiarity with relevant legal and bureaucratic phraseology. If it was necessary to ensure that such communication was to be as readily intelligible to any concerned citizen who wished under freedom of information to read the file, the impact of the change would be such as to be revolutionary. How far public servants can move in this direction without sacrificing efficiency and speed in administration will be a very interesting test in the years ahead.
The Government are committed to reform in the area of official secrecy. This does not mean that we are prepared to be pressurised by any individual or group into precipitate action. The experience of other countries in this matter underlines the necessity for detailed research and consideration on the part of Government before publishing any draft legislation. In the United States, legislation in this area was first enacted in 1966; subsequent experience there gave rise to the need for further legislation in the area to remedy the perceived inadequacies of the 1966 Act. In Australia, a Freedom of Information Act was passed in 1982; this was amended somewhat by subsequent legislation. As the Taoiseach indicated, the area of freedom of information is very complex. It might be helpful if I outline briefly some of the areas which will require particularly sensitive handling.
While we endorse the private citizen's right to access, we must also ensure that such access would never diminish the equal right of the citizen to ensure that his properly private dealings with Government remain private and do not come into the public domain. We, in this State, must be particularly vigilant to ensure that any right of access to official information can never enhance the ability of undemocratic, subversive or other criminal groups to take on the forces of law and order. In the commercial sphere, it would be intolerable if new found access to official files could enable an individual or company to steal a march on a business rival. Finally, we must not fool ourselves that reform of this nature will not give rise to significant costs in terms of the processing of applications for disclosure of documents and the inevitable disruption of work involved. The Government do not regard the cost factor as a reason for inaction in this area. However, the current state of the public finances would not allow us to ignore the cost dimension in deciding on the precise form which freedom of information should take. I mention these problems not to suggest any weakening of our commitment to reform but rather to underline the necessity for care and thoughtfulness in the drafting of the necessary legislation.
Phrases like "official secrecy" conjure up visions of a state in which those who govern and those who serve them directly carry out their functions in isolation from the community they were appointed to serve. It is important to keep a sense of perspective about this. We in this State always have been able to take it for granted that our Governments are answerable to Dáil Éireann; that individual Members of the Dáil can question Ministers about their actions and those of their civil servants. These are, and must remain, the bedrock of a democratic society. In recent years we have built on these foundations a new openness — by arranging to have Dáil and Seanad sessions broadcast on radio and television; by expanding and making more public the meetings of committees of these Houses at which civil servants are called on to explain official actions; by setting up an Ombudsman with full access to official files; and by getting Government Departments and offices — particularly those which have regular dealings with large numbers of citizens — to produce information booklets or establish information offices and by training civil servants at all levels to become more informative and user friendly. If areas of darkness remain in our public administration they attract attention because of the degree to which the administrative process generally has increasingly been brought out into the light. This Government's approach to the issue of freedom of information is designed to ensure that the light of public scrutiny reaches even those darkened corners.
While Deputy Gay Mitchell endeavoured to explain in detail the justification for Deputy John Bruton tabling the motion before the House, having listened to some of the difficulties and problems; above all, having listened to my explanation of the actions taken by this Government in recent times and those proposed to be taken under the Programme for Government, I am quite certain that tomorrow evening Deputy Mitchell will entice his colleagues not to vote in favour of it.