Skip to main content
Normal View

Dáil Éireann debate -
Tuesday, 11 Mar 2003

Vol. 563 No. 1

Private Members' Business. - Freedom of Information (Amendment) (No. 3) Bill 2003: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

I wish to share my time with Deputies Burton and Howlin.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

This is not a debate about pieces of paper. It is not about files, documents, folders or letters. It is about fundamental political issues, including what it means to be a citizen of Ireland in the 21st century. It is also, perhaps just as importantly, about what it means to be a public servant in Ireland in the 21st century. For years now, we have been told that all political parties are the same, there are no differences between them. That has never been true, and the Govern ment's proposals to amend the Freedom of Information Act make it clear how untrue the assertion is.

Freedom of information is a touchstone issue. How politicians and political parties act on the issue is a declaration of what lies at the core of their political philosophy. Are they committed to the fundamental idea of democratic accountability or are they not? Do they see themselves as having a mandate from the people, and being accountable to the people, or do they not? Do they regard the people who elected them as citizens, with rights equal to those who govern? Do they regard the public administration as having an absolute responsibility to behave to the highest standard of openness, with respect for the rights of all citizens? Do they regard themselves as a new aristocracy, speaking down to a peasantry whose duty it is to take lectures from their masters?

The idea of citizenship is at the heart of this debate. It is sad that in 2003, it is necessary to remind the Government of a concept which was largely developed in the 19th and early 20th centuries. The core principle is that political power in a democracy is vested in the people, with every adult having an equal voice as of right. These ideas of equality, and of rights, are alien to the Government. It intensely dislikes the notion that people should have a right to anything. For several years now it has made it very clear, for example, that it certainly does not think people with disabilities should have a right to services. As the new aristocracy, it prefers to hand down crumbs from the master's table, or even from his shiny new jet.

Heaven forbid that people should be regarded as citizens, with rights to anything, let alone information about how the new aristocracy conducts its business. This is precisely the new aristocracy's attitude to freedom of information. We have all heard it said that information is power. Certainly, without information, it is impossible for any Government to be held to account. The Government has done everything it can to diminish the role of this House in parliamentary scrutiny of its activities or its policies. The Taoiseach is always available to be door-stepped for 30 seconds of meaningless soundbites, but he is never willing to give a straight answer to a straight question. Now there is an attempt to undermine the rights of ordinary citizens to information on how the Government functions. Unfortunately, a media that in general has been content to facilitate the Taoiseach's meaningless soundbites will now find it more difficult to hold the Government to account.

The Tánaiste, in particular, has suggested that the Government's proposals are of concern only to the media, and not to ordinary citizens. Her approach is a clear indication – not for the first time – of the disdain with which she regards ordinary Irish citizens. Does she believe that citizens are only interested in the personal information about themselves held by Government? Does she not believe that citizens might be interested in the workings of Government, or in how fundamentally important policies that affect the entire society are being developed? Does she not believe that citizens have a role in holding the Government to account and have a right to do so? It is clear she does not. She seems to have little interest in the principle that, in a democracy, it is citizens to whom the Executive is ultimately responsible. Perhaps she has forgotten Article 6 of Bunreacht na hÉireann which states as follows: "All powers of government, legislative, executive and judicial, derive, under God, from the people."

The Government's proposals will deprive Irish citizens of the right to information on how its own Government functions. It is clear that the Government's purpose is not to amend the Act but to neuter it. Its proposals have been drawn up with one purpose in mind – to provide Ministers and civil servants with means to limit a citizen's access to information. The Government proposes to significantly broaden the definition in the Act of what constitutes a Cabinet paper. This opens up the opportunity of material being sheltered from the provisions of the Act simply because it has somehow been included on a Cabinet agenda. Similarly, it is clear that the proposal to extend the protection of Cabinet papers to committees of officials working to Cabinet is intended to provide a shelter from scrutiny for a wide range of material.

In proposal after proposal, the clear intention is to shut down public access. Secretaries General of Departments are to be given power to certify material as being part of an ongoing deliberative process. This will effectively suspend the appeal process in relation to a request. The only recourse for citizens is the prohibitively expensive route to the High Court.

Deterring citizens from asking questions is a central part of the strategy. The high level group mentions a charge of €20. The Government in its proposals has not told us what fee it envisages. Not alone is the fee designed to deter requests, it will alter the practice of providing information outside of the Act. There will now be an incentive to tell citizens to submit a formal request and pay the fee, rather than simply release information which should be in the public domain. The term "freedom of information" will be a hollow one. Perhaps we need to begin thinking of an alternative –"information at a price" perhaps? Blanket exemptions are to be applied to material where previously a public interest test was sufficient. Bizarrely, all documents relating to tribunals of inquiry are to be kept from the public.

The Government has sought to defend its proposals by referring to the report of the high level review group. This defence is flawed because the report of the group is itself deeply flawed. I look forward to the members of the group giving evidence to the Committee on Finance and the Public Service. I look forward to hearing why they saw fit to imitate Mr. de Valera and look into their own hearts to discern the wishes of the Irish people. I look forward to hearing why the NUJ, the Information Commissioner or even the Opposition parties were not consulted. These are important partners in how the Act is used, and their voices ought to have been heard.

I am also looking forward to the evidence of the senior civil servants, because they are people for whom I have considerable respect. Each of them, in my experience, believes in the concept of public service. I seriously doubt that they would, if left to their own devices, have any opposition to the idea of public consultation on this issue. From various things I have heard, I wonder whether the civil servants involved believed their report was part of a process. I find it difficult to believe that they understood it was the Government's intention to base its decisions on their conclusions and nothing else. The senior civil servants involved would not purport to speak for everyone in the Civil Service.

I wish they had stopped to think about how they could reconcile their findings with the wider cause of reform within the Civil Service, a cause in which at least some of them believe. Read in isolation, the report of the group does little to inspire confidence in current processes of administrative reform. It speaks of an attitude which harks back to former days of unaccountable bureaucracy. It does not speak of a determination to drive ahead with a modernising agenda.

The high level group has been characterised, perhaps unfairly, as constituting five Sir Humphreys. However, they have produced a report which might be expected of an old-style civil service asked to produce its own wish-list. Civil servants do not write the law, Governments do. If the Government wishes to force senior civil servants into an unholy alliance to bring down the shutters on open government, there should be an awareness that the Government, and only the Government, is accountable to the people for doing so.

The Government's proposals go well beyond even the draconian proposals of the group. Where in the group's report, for example, does it suggest that files prepared for parliamentary questions should be hidden away? We are now confronted with the proposal that information which is deemed fit to be released to the Dáil is to be hidden away unless the Opposition can find the right formula of words to elicit it. We are back to the Ray Burke school of open government. The Government cannot appeal to the review group for support for this proposal.

Nobody can rationally oppose a fair-minded and balanced review of this legislation. I am prepared to listen to the case, if it can be made, that the Act causes some administrative problems, but I also want to hear evidence on the benefits of the Act in improving the quality of administrative work. I have little doubt that the prospect of public scrutiny has served as a stimulus to improve the research and analysis which underlies admin istrative decision making. Freedom of information means that the old prejudices are not good enough. Reasoned argument is required instead.

The Labour Party is prepared to listen to reasoned and well-supported arguments about how the Act can be improved. The legislation has always sought to strike a balance between the rights of the citizen to information and the need for effective administration. That is why my party, in proposing this Bill, is prepared to postpone the release of Cabinet papers under the Act for a further year, to allow a proper review to take place. Such a review must include a wide public consultation process, and a willingness to entertain argument from all quarters.

Not only was the Information Commissioner not consulted on the Government's proposals, but it is clear from the report he has published today on the application and operation of certain provisions of the 1997 Act, that he has very serious reservations about them. In his report, Mr. Murphy says that it would be inappropriate for him to engage in public debate on the merits or demerits of the Government's Bill. However, he gives a number of specific examples of where he sees that the Government proposals could, according to his report, "create serious legal and other problems in the future and which have the potential to result in costly litigation possibly involving my office." In particular, he expresses concern about the implications of section 12 of the Government's Bill, which he says, seeks to substitute the definition of Government currently contained in the Act with, according to his report, "a much more far-reaching and constitutionally unrecognisable definition." All of this emphasises why the commissioner should have been fully consulted by the Government before any proposals for amendments to the Act were finalised.

The manner in which the Government's legislation has been pushed through the Seanad this week is an indication of how the new aristocracy does business. The sport of kings is more important than the rights of citizens. The Minister for Finance and his Minister of State have both absented themselves from the Seanad this week, and neither is available to attend this House. Can there be a more eloquent statement of the contempt in which this Government holds the House and the citizens who elected it?

One commentator at the weekend described the Government as neo-liberal. Certainly, the Progressive Democrats, and the Progressive Democrats within Fianna Fáil, have acquired all the neo-liberal characteristics of Thatcherism. Sadly, when it comes to empowering the citizen, these neo-liberals have little in common with the radical liberal tradition of the 19th century. They favour a small, strongly centralised state and not one that is answerable to its citizens. It is sad that the party founded by former Deputy O'Malley in his anxiety to stand by the Republic, can sign up to this assault on the rights of citizens. One recalls the Minister for Justice, Equality and Law Reform, who I am pleased to see in the House, hanging out of a lamp-post proclaiming "no thanks to single party government." That was the biggest broken promise of the election campaign.

The Progressive Democrats have happily merged with their aristocratic cousins in Fianna Fáil and do not want to be disturbed by the little people asking awkward questions. They have no intention of holding Fianna Fáil to account. Comfortably seated in the ministerial transport of their choice, their slogan has been replaced by "no thanks to open or accountable government." The man who once compared his Taoiseach to Ceaucescu has shown all too clearly how comfortable he is with Ceaucescu's concept of free and unfettered information.

The Taoiseach, however, is no neo-liberal. His is a more old fashioned form of conservatism. The great paternalist, he seeks to smother us all in his happy embrace. As his permanent election campaign makes its way around the country, we are all expected to smile and cheer as the great man meets his people. However, the people must not complain at what his most right-wing of Governments does or, more often, leaves undone. When the parents of children with disabilities have the temerity to protest outside the Mansion House, they are greeted with a dismissive snarl. How dare they not stand and cheer everything the Taoiseach does? Do they not know he will look after everybody, not because they have any such thing as rights but because he chooses to?

From now on, their criticism will be muted, because they will be kept in the dark. If the Taoiseach's Ministers are at loggerheads over the health service, they will not be allowed to know. If the State concludes a deal with the religious which confers a huge cost on the taxpayer, the full truth can be hidden from public view. A veil of secrecy will be thrown over the operations of Government so that the new aristocracy can continue on its merry way, unimpeded. Instead of being mediated through the Freedom of Information Act, information will in future be mediated through consultants and agencies at many times the cost.

No Government should be afforded this much freedom from scrutiny nor be allowed to put itself beyond public accountability. However, this Government in particular is more in need of scrutiny and accountability than ever. The acronym which is most appropriate to it, with all its pretensions to being a new aristocracy, is SAD – smug, arrogant, and dishonest.

There is another option. The Labour Party's Bill provides the Government with the opportunity to pull back from its proposals to gut the Freedom of Information Act and to hold a meaningful review. If the Government is genuinely interested, as it claims to be, in preserving the principle of freedom of information, it will accept this Bill. If it does not, we will know what are this SAD Government's true intentions. I commend this Bill to the House.

On 25 June 2002, just two weeks after their appointment to Government, Ministers decided to appoint a committee of high level officials to review the Freedom of Information Act. Why the rush, so soon into their new term of office? Neither of the general election manifestos of the parties in Government made any explicit reference to reviewing the Act. No mandate had been sought from the electorate to proceed secretly on this mission to dismantle this law.

At no stage during the election, just weeks earlier, did any Minister tell the public that this was a pressing matter nor indicate that both parties were so concerned about the operation of the Act that within days of forming their new Government they would seek to refer the operation of the Act to a review group and seek, as we now know from the proposed Bill, to emasculate the Act.

This is deception of a high order. This country is proud to be a parliamentary democracy. It is not a parliamentary dictatorship where the Government can ram through whatever measures it wishes without due scrutiny and consultation. The Government derives its authority from the electorate based on a clear honest statement of its intentions. This did not happen in this case.

Everything about the procedure adopted here is a cause for concern. The hidden agenda was kept under wraps from the eyes of the voters but was ready to be placed on the Cabinet agenda within a few short weeks of re-election. The review group's existence was never revealed to the press or public or even advised to the statutory Information Commissioner. The review process was carried out in secret without consultation with users, media or members of the Dáil or Seanad. The Bill's clauses go far beyond the suggestions of the official review report and the parliamentary timetable for the Bill in both the Dáil and Seanad is inadequate for the proper scrutiny of the measures proposed.

In its opening statements the high-level review group says: "The introduction of FOI legislation in this country has played an important role in promoting openness, transparency and accountability in Government." The summary conclusion of the high level review group states: "Internationally, freedom of information is recognised as an important contributor to good public administrative practice."

Nowhere in the report, nor in the spin that has surrounded the introduction of the Government's new Freedom of Information (Amendment) Bill, has any concrete example been given of a decision or action of Government, which was prevented, significantly delayed or whose cost was significantly increased by the operation of the existing Act. In Leaders' Questions today the Taoiseach referred to "damage" to the Government but he has not specified what this damage might be. Perhaps the Minister for Justice, Equality and Law Reform will enlighten us. Given the urgency which the Government has devoted to dismantling the Act, we are entitled to know why.

The proposals by the Government go further than the proposals of the high level review group. Why? What has the Government to hide or, perhaps more significantly, what does it anticipate wanting to hide from scrutiny in the remaining period of its term of office? I have one basic question to which it is essential to get an answer. Why was there no consultation with the Information Commissioner, the NUJ, NGOs, the Department's own consultative committee which was set up by the Department of Finance and encompassed respected people from a range of walks of life or with other interested parties, not least the Dáil and Seanad? The Government is using the cover of the upcoming deadline for release of Cabinet papers to seek changes of a far more fundamental nature than envisaged under the original Act.

The Labour Party's modest and politically generous proposal this evening goes a long way to meet for the coming year the Government's misgivings about this deadline. If the Government rejects this constructive attempt to meet its concerns, it will only highlight again the destructive hidden agenda of the more sweeping changes that lie behind its own Bill. Why can we not have a year to consult and reflect? Why can we not have time to find consensus?

In every debate of this kind it is salutary to remind ourselves, however often repeated they are, of the words spoken by the late Mr. Justice Hamilton:

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 money and time would have been saved.

It is ironic that the Government now proposes to shelter the briefing papers for parliamentary questions, and indeed briefing papers on legislation, from public view. Accountability to Parliament will be limited by whether a question is reached on the Order Paper, by what questions are asked, if they are reached, and whether the answer sets out to mislead by withholding key information. This is a certain recipe for the appalling vista outlined by the late Chief Justice where information is withheld and suppressed, leading undoubtedly to abuse and persistent cover-ups. It is a case of a return to the bad old days and proof positive of how little the leading figures in the current Administration have learned from the events of the past decade.

At the meeting of the finance committee this coming Thursday, I will have many detailed questions for the senior officials but it is the political agenda that should concern this House. There is more to this than the protection of Cabinet documents due for release next month. The Government's new legislation is a significant setback to community and voluntary organisations. It will substantially undermine the Government's existing policy on its relationship with the community and voluntary sector.

In its own White Paper, the Government acknowledged the need to create a participatory democracy where active citizenship is the norm. It stated that voluntary activity was a vital element of democracy and that a strong democracy enhances and protects the capacity of citizens to participate. Furthermore, it stated that in the Government's vision of society the ability of the community and the voluntary sector to provide active channels for the active involvement and participation of citizens was fundamental. Were these words written by the same Government that wants to enact a law that turns these sentiments full circle?

The plans to significantly curtail citizens' access to information will directly undermine the Government's spurious commitment last year to create a more participatory democracy where active citizenship is fostered. Introducing a fee for information requests will deter citizens' involvement with policy making and will directly disadvantage many citizens' groups. The quality of one's citizenship and capacity to participate will be more directly linked to income, under this proposal, than is currently the case. This is directly in conflict with the White Paper's commitment to focus on the needs of the most disadvantaged, to achieve quality of opportunity, access and treatment and to ensure that individuals and communities are facilitated to speak about the problems affecting them and to be part of the practical response.

The restrictions appear to represent an adversarial, rather than a partnership, approach to citizens by the Government. We have an eminent lawyer here representing the Government. Lawyers are famous for their adversarial approach.

That will not be displayed here.

This Bill has arisen without consultation with citizens' groups. As a result it is lopsided in favour of administrative convenience with no balancing component of democratic accountability or support for active citizenship. It is significant that every section of the Bill is overwhelmingly focused on restricting citizens' access to information and making the process more time consuming and costly. There is no additional right for the citizen in the Government's proposals. As far as this Government is concerned, inquiries from citizens represent a burdensome nuisance which should be discouraged and hindered at every turn. I am sure that even at this late stage, Ministers must realise they have gone too far. They have an honourable way out – by accepting the Labour Party Bill and allowing the tried and trusted mechanisms of public consultation to take their course over the coming 12 months. The Taoiseach, rightly, has earned his political reputation on his ability to encourage and foster consultation until agreement is reached. The Labour Party asks the Taoiseach to look into his heart and to use the tried and trusted method that has brought him to where he is and allow the consultation that these changes require.

It is said that familiarity breeds contempt. Sometimes it breeds indifference. That is the wish of the Government, or at least the expectation of some elements of it, that the public has become inured to the ongoing outflow of scandals, suggestions of corruption and of malpractice and that somehow it does not have the resonance it once had.

A decade ago, in the immediate post-Haughey era, people were scandalised by the state of public affairs and demanded that there be a response in this House, a wind of change that would blow through public administration and alter the way public business was done. They demanded that it be done in the interests of the public rather than in the interests of the few. Phrases like "golden circles" were in common usage.

My party fought the 1992 election on two simple concepts; justice in the economy and ethics in Government. From that simple concept, "ethics in Government", flowed three bedrock items of legislation that have framed the way public business has been done in the past decade. The first was the Ethics in Public Office Act, the second was the Electoral (Amendment) Act and the third one was the Freedom of Information Act. This is a trilogy of measures that sought to change the way public business was done in this land.

The Ethics in Public Office Act set standards for public administrators, Members of the Oireachtas, Members of Government and senior public servants. It changed the way business was done. The Electoral (Amendment) Act, which I had the pleasure to sponsor as Minister for the Environment and Local Government, sought and achieved a cap on expenditure and a disclosure of contributions to political parties and a cap on the amount that could be given to individuals and to political parties.

Each of these measures in turn has come under attack by the Fianna Fáil-Progressive Democrat Administration. We should not be surprised at that. I have personal knowledge of the Electoral (Amendment) Act and I know that the then Progressive Democrat spokesperson who is now the Minister for Justice, Equality and Law Reform, said it was so bad it was unamendable, that the principles in it attacked democracy and fought it tooth and nail. Ironically, I later saw a former Fianna Fáil Minister for Justice, Equality and Law Reform lay claim to the Act as his own on a Fianna Fáil website.

Of all those items of legislation, the Freedom of Information Act was, in many ways, the most important. It has transformed public access to how the country is governed at every level – within the quangos, the local authorities and national Government. It provided an irritant for many of us. We get irritated when there are requests to see expenses or who travelled where or what was spent on the Minister for Justice, Equality and Law Reform's breakfast or the Taoiseach's dinner. That irritant is balanced by a searing light penetrating the way business is done. It has two fabulous benefits. It has transformed the way business is done, attacked old prejudices and required reasoned arguments for decisions. Nobody wants to be portrayed as not engaging in argument. That used to be the way, until this legislation was lobbed in here which has remarkably transformed public administration for the good.

What does the Government now propose? Yesterday I engaged in a debate – or tried to – on my local South East Radio. It is very interesting that the mantra coming from the two Fianna Fáil representatives, one the Minister of State at the Department of Communications, Marine and Natural Resources, Deputy Browne, is that this is a minimalist proposal from Government, that there is really only one substantial change, which is that the Cabinet exemption is to be extended from five to ten years and everything else is really dotting i's and crossing t's. That is a patent falsehood. The truth is that there are substantial changes aimed at attacking the base of the Freedom of Information Act. There are two most glaring proposals in this regard. The first is in regard to the widening of the definition of Cabinet papers to include areas that were not included in the primary legislation. My former colleague, Eithne FitzGerald, carefully looked at these and I was on the negotiating team that tried to get these matters through. I know that this particular issue was looked at with great care.

In essence, all that is required to sanitise a document from public scrutiny is to waft it past Cabinet. Those of us who have had the pleasure and honour of serving in Cabinet know that many a document gets stamped "seen by the Minister" because it came into the precincts of the Minister's office. That kind of stamp, "about to be seen", "about to be presented", "papers presented to", "concerning Cabinet", will be sanitised from public view. That is a clear intention and gives carte blanche, if the Administration so wishes, to hide documents from public scrutiny.

The other major change is in regard to the deliberative process. From now on, the Secretary General of a Department can say that the deliberative process is ongoing. God knows many major issues in this country are ongoing, not for years but for decades. As long as a process is ongoing, documents can be shielded from public view and public debate. This is a deliberate attempt to undo one core element of the Freedom of Information Act in so far as it relates to the operation of Government. Quite clearly, the Government has decided that, in terms of shining the light of public scrutiny on administration, that is fine and dandy, acceptable and good as long as it does not touch upon itself and its workings.

A sensible argument could be made for changes in this area. We do not have a closed mind to that. That is why the way the Govern ment's Bill has been handled is so debasing of free debate and proper scrutiny and respect for this House and respect for others who are charged with a role in this, including, in particular, the Information Commissioner.

I wish to address a question to the two Cabinet Ministers present both of whom are honourable people and honourable public servants. Will they accept the goodwill of the Labour Party proposal, not to roll back everything the Government is proposing but simply to put everything on hold? I ask them to freeze things as they are for a year and allow all who are genuinely concerned with this important public right to have their input fairly weighed. Then, 12 months from now, a Bill can go through this House on which we are all agreed. I ask the Minister to accept this conciliatory and positive proposal from this side of the House on a Bill that is in all our interests.

I intend, if I may, to share my speaking time with my colleague, Deputy Michael Smith, the Minister for Defence.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

It was suggested that all the proposals in this Bill were one-way traffic and that all of them were motivated by the convenience of the Government. I draw Deputies' attention to section 25 of the Government's Bill, which provides that records held by public bodies relating to the costing, assessment or consideration of any proposal of a political party carried out for or on behalf of that party should be exempt. I remind Deputies opposite that that proposal is in ease of them. At this moment the Information Commissioner is considering a case where someone has applied to him for the release of that information. This section was not proposed by the top level group but by the Department of Finance, which became aware of the situation and believed the principle that the deliberative process of the Opposition parties should not be impeded by the operation of this Act and that they should be free to consult the Department of Finance in relation to proposals of their own in confidence without the danger that some journalist might do to the Opposition what they claim is perfectly right when done to Government, that is inquire into their deliberative process and into what they are considering doing or proposing in this Chamber. That is one example of a measure in the Government's Bill which is not driven by the interests of Government but by the interests of fair play and the deliberative process of the Opposition.

I note that the Information Commissioner has, today, published a commentary on the Freedom of Information Act 1997. I have not had time to read it in its entirety or to study its conclusions in their entirety but I am struck by the second paragraph of his background statement in which he says that he is conscious that many commentators would like him to state his views on the proposed legislation but that he does not intend to do so because it would be entirely inappropriate for him to engage in public debate on the merits and demerits of the Government's Bill. He goes on to say that the Constitution provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas and that it is the role of the Information Commissioner, in relation to the Freedom of Information Act, to implement the legislation passed by the Oireachtas in an independent and impartial manner. He then goes on to say that, given the importance of the proposed changes to the Act, however, and having regard to his statutory reporting relationship with the Houses of the Oireachtas, he has decided to publish a commentary of the Act under section 39 of the Act. He quotes the relevant provision: "The Commissioner may prepare and publish commentaries on the practical application and operation of the provisions, or any particular provisions, of this Act, including commentaries based on the experience of holders of the office of Commissioner in relation to reviews, ." Reviews, by the way, are not top level reviews but reviews under section 34 of the Act, which are reviews of decisions.

In his decision to engage in a commentary which involves evaluating and passing comment on the provisions of the Government's Bill, the commissioner seems to have strayed across his self-imposed line. He seems to have said that on the one hand, it was not his function and to have implied that it would be improper of him to comment on the merits and demerits of a Bill and on the other hand, he resorts to section 39 of the Act and relies on his capacity to make a commentary on the Bill to justify the particular observations he has to make. Without making any more severe criticism of him, it is abundantly clear that section 39 does not empower him to comment on Bills. It asks him to comment on the application of the provisions of the Act and of reviews of decisions carried out under the Act.

This, perhaps, exemplifies one of the problems of the Act. It has been pushed vigorously – I do not decry the commissioner's vigour in carrying out his work – even to the point where, for instance, Opposition requests for information to cost their own financial records have been the subject, when resisted by the Department of Finance, of attempts to get at them through the Office of the Information Commissioner. I put those points to Deputies for them to contemplate. It is not all a one-way street.

I welcome the opportunity afforded by the presentation of the Labour Party Bill to set the record straight about the Government's position on freedom of information. The Government's position is quite reasonable and straightforward. The measures proposed in the Government's Bill, which is before the Seanad, are based on the need to ensure that the business of Government is efficiently organised. The Government must be able to consider all aspects of important public issues and then reach decisions in the best interest of the whole community. That is the function of Government. It is the Government's view that the existing Act prevents this and it must therefore be amended.

The Government has examined the position carefully in light of the conclusions reached by the high level group of Secretaries General and other factors and has, quite properly, made its decisions about the best way forward and incorporated these in its proposed legislation. We do not believe that it is in the public interest that records relating to Government decisions should be released in a manner which undermines those decisions or leads them to being re-opened.

The Freedom of Information Act 1997 has made a major contribution to public life in Ireland. I accept that point and I accept what Deputy Howlin and others have said to that effect. People can now get access to all manner of records. They can get papers relating to a huge range of economic and social policies being implemented by Departments and public sector organisations of all kinds. They can also get information about the personal material held on them by public bodies as well as the reasons for decisions made in relation to them.

As a result of the Act, there has been a significant improvement in the quality of public debate in Ireland. Debates on important issues are definitely more informed. One only has to look at newspapers today and compare them with the position ten years ago to see that there is now more and better coverage of public policy and its impact on Irish society and the economy. There are probably many factors which have brought this improvement about – for one thing, we have more media outlets than before – but it is undeniable that the Freedom of Information Act has played a major part in informing and therefore encouraging public debate.

We have some way to go before we see the extensive use of freedom of information that has emerged in the United States, for instance, but there is no doubt that Ireland is moving in that direction. The impact of the Act is borne out by the volume of requests made under the Act – over 44,000 in the period from April 1998 to December 2001. A second important statistic is the number of bodies covered by the Act, which has increased from 67 in 1998 to a total of 370, including local authorities, health boards, voluntary hospitals and numerous other State agencies, bodies and institutions, including those in the enterprise, broadcasting and third level education sectors.

These developments must be encouraged. The kind of debate we are seeing in Ireland is part and parcel of a healthy democracy. Debate about public issues is one of the ways in which a democratic society is established and sustained. I assure the Dáil that I welcome this new approach to the way we run our affairs in this country. I do not want to take away from it and I want to see further developments in this direction.

Freedom of information has also played an important part in public service reform in Ireland. The 1997 legislation has gone a long way to establishing more openness and accountability throughout Government. The Act has served to inculcate a more open attitude across the public service to the release of information on an administrative basis which previously would not have been readily available.

I assure the House that there is no question of moving away from what has been achieved since the introduction of the Freedom of Information Act. This is not the purpose of the legislation that has been introduced in the Seanad. I would return later if time permitted to the purpose of the Government's legislation. Before I do that, I want to look at the Bill we are debating. To be honest, I find it a little confusing. As I understand it, the Bill seems to have two main aims. First, to extend the present five year exemption to six years and, second, to provide for a consultation process established in statute. According to this Bill the consultation would be a fairly major undertaking. The Information Commissioner is to consult with interested parties, which include the members of the consultative groups established by the Minister for Finance, members of the media, including the National Union of Journalists, business users, members of the Houses of the Oireachtas, members of the legal profession as well as non-governmental organisations.

Following this complex process, which is to be undertaken within 12 months, the commissioner is to examine each and every proposal to amend the 1997 Act and lay a report before each House of the Oireachtas. It is not entirely clear from the Bill what precise role the Government is to be accorded in this exercise. Section 6 merely instructs the Government to "have regard" to the reports of the commissioner and the joint committee. I assume this is intended to allow the Government to exercise some element of choice over what measures it would then be allowed to introduce.

It has been clear in recent days that the alleged lack of consultation by the Government about its Bill is supposed to be a major problem. I can only assume that this is the main reason for the Labour Party Bill we are debating. It must be said clearly that the Government was not and is not obliged to consult with the persons mentioned in the Labour Party's Bill. In certain circumstances it is open to the Government to decide to take its own advice or, as was done in this case, to appoint a top level group of people, whose independence and integrity is unquestioned, to examine these issues and the effect of the Freedom of Information Act on the consultative and legislative process of Government policy.

As one who has some degree of experience, as Attorney General I was in a position to operate an office of State, largely free from the constraints of the Freedom of Information Act in its entirety. When I was transposed by a remarkable process to which Deputy Rabbitte has alluded to the position I now hold, the dramatic change that I found – I do not say the Department of Justice, Equality and Law Reform is as it is—

Most of the Department of Justice, Equality and Law Reform is exempt.

—solely because of the Freedom of Information Act – where the Freedom of Information Act has full range on the deliberative process is stark and undeniable.

It is called democracy.

I ask the Labour Party to concede that one of the unintended consequences of the passage of the Freedom of Information Act was a transmutation of people's attitudes to recording the reasons for making decisions, putting in writing vigorous exchanges of views, contradicting other persons or putting in writing views which would require moral courage rather than expect the approbation of the media if they were revealed. These are the natural and predictable consequences in some measure of the Freedom of Information Act which I support. None of us should fool ourselves into believing that the unalloyed good of putting the searing search light, to which reference was made earlier, on the process of government and the processes of governmental institutions in this society, is all one-way traffic and its effects have been for the better and that there have been no deleterious side effects because there certainly have been. The Government's view in June 2002 was that it had to be addressed as a matter of urgency. If we were to function properly as a Government under the Constitution—

Why did the Minister not say that last year?

—as a collective authority—

Why was it not in the manifesto when the Minister was climbing up lampposts?

I have heard the Deputy's question and it is getting more silly the more she repeats it.

Why was it not in the manifesto?

Acting Chairman (Mr. McGinley): As the Minister has only one minute remaining I ask the Deputy to allow him to continue without interruption.

The Minister should answer the question.

What is the answer?

The Minister should answer the question.

What I want to say is simply this—

The Minister should answer the question.

This is the Labour Party. It tries to barrack anybody who tries to speak in this House. The Government is required under the Constitution to meet and act as a collective authority. One of the things that would be deleterious and bound to damage that process would be if its preparatory documents, in which contrary views are expressed, were to be laid open to public scrutiny almost immediately after a decision was made, in circumstances where the fundamental ethic of government is to go out and support decisions, even those to which one was strongly opposed, and not to disclose one's own opposition. That is a fundamental ethic of government which Deputies opposite would be foolish to forget.

Is the Minister worried about Abbotstown?

That has nothing to do with it. I ask the Deputy not to be facile and glib. There is a fundamental rule of our democracy that the Cabinet works together and if one does not agree, and it is sufficiently serious, one gets out. While one remains inside one remains a team player and supports the majority view, no matter how convinced one is that that view was not the view one would have preferred to have been taken on the day. If one then says that all the material in which one vigorously puts one's point of view is to be put in the public domain one undermines that ethic of government and fundamentally weakens the processes by which the Executive arm of the State is required to function. My last remark is—

Just one word – secrecy.

—in relation to parliamentary questions. There is nothing sinister about the provision in the Government's legislation to the effect that material prepared by civil servants to be of assistance to members of the Government when answering parliamentary questions should be available to the Opposition or the public generally. It has frequently been my experience that some of the material with which I have been so generously endowed by my Department is material over which I would not stand. If it were furnished to me and if I had a choice about it I would say: "Take it away and shred it. I do not want it."

Then why not show it? Why not disclose it and the civil servants will stop writing rubbish.

In those circumstances, when one stands up in the House to answer questions one does so on the basis of telling the truth. Sometimes arguments are put before one which, in one's own good judgment, one would like to make. It is ridiculous to say that every piece of helpful advice from a public servant given for the purpose of being accountable to the Dáil, should, ipso facto, become part of the public record just because somebody on the Opposition benches makes a Freedom of Information Act request.

The Government's Bill is a carefully balanced package of proposals which preserve the basic objective of freedom of information, while ensuring that Government can continue to conduct its business in an effective manner, in accordance with the public interest. This is the key objective – to strike the right balance between openness and transparency on the one hand and the effective functioning of the Government process on the other.

The centrepiece of the Government's Bill is the amendment of section 19 dealing with meetings of the Government. I am pleased that many commentators seem to have accepted that the extension of the period of protection for Government records from five to ten years is a necessary and sensible measure. It was always recognised that a period of protection for such records had to be a feature of FOI. Those who framed the original Act recognised this and provided for five years, a shorter period than in any other jurisdiction where such periods apply.

However, it is becoming increasingly clear that five years is not an adequate period for this purpose. As the high level group established by the Government to review the operation of the Act stated:

As experience is gained in the operation of the Freedom of Information Act, it is evident that a five year moratorium on the release of Cabinet records is too short. It does not give Ministers the assurance that they require to commit views freely to the record if those views are to be divulged in such a relatively short space of time.

I have no hesitation, therefore, in recommending to this House that the restriction of five years for Government records should be raised to ten years. A ten year limit still leaves Ireland with a liberal regime. To those who contend that the Government is out of step or that the measures in this Bill go too far, I draw their attention to the following provisions from FOI Acts overseas with which our Act is commonly compared. In Australia, the Secretary to the Department of the Prime Minister has the power to certify that a document is a Cabinet document. Such a certificate establishes conclusively that the document is exempt. In New Zealand, a record may be withheld if it is necessary to maintain the consti tutional conventions which protect collective and individual ministerial responsibility or the confidentiality of advice tendered by Ministers of the Crown and officials.

In Canada, the Act does not apply for 20 years to a long and non-exhaustive list of Cabinet confidences, including correspondence used for reflecting communications or discussions between Ministers of the Crown on matters relating to the making of Government decisions or the formulation of Government policy and records, the purpose of which is to brief Ministers of the Crown on matters before Cabinet.

Specific protection is afforded to ministerial communications in the UK. Protection is also afforded information which would, or would be likely to, prejudice the maintenance of the convention of collective ministerial responsibility or which would, or would be likely to, inhibit the free and frank provision of advice or exchange of views for the purpose of deliberation. The amendment to section 19 also deals with two other areas directly linked to the Cabinet process, inter-ministerial communications and committees directly supporting the deliberations of Cabinet.

Protection of Government records also covers communications between Ministers on live Cabinet issues. These communications are an extension of the Cabinet exercise of collective responsibility and it is entirely logical that the same protection as applies to Government records should also apply to these records. This principle is recognised in other FOI regimes, for example in the Canadian and UK models. There has been misleading comment on this provision from various quarters and suggestions were made that all correspondence from Minister to Minister will henceforth be unavailable for release. That is simply not the case.

There also appears to be a misunderstanding about the protection of records of committees directly supporting the Cabinet. Again, this is a tightly drafted provision to cover cases where officials are mandated to assist Cabinet deliberations on matters before the Cabinet and to report directly to the Cabinet.

They were covered in the original Bill.

To ensure that such protection is only afforded to records which genuinely fall within these categories, the Bill provides that the Secretary General to the Government must certify that the committee concerned meets the relevant requirements. This is a reasonable, prudent and logical measure which will operate to ensure that Government is provided with comprehensive advice, expressed in totally frank and candid terms on the complexities of the issues under consideration.

The question of fees has also attracted particular comment. Let me make it clear that there will be no fees for records relating to personal information.

Will the Minister give way under Standing Order 47 to answer a question?

An Leas-Cheann Comhairle

Please allow the Minister to continue. This is not Question Time.

These are explicitly precluded by the Bill. Section 26 of the Bill is an enabling provision allowing the Minister for Finance to introduce upfront fees. I fully agree with my colleague, the Minister for Finance, Deputy McCreevy, that this is long overdue. As I have said, FOI has been making an important contribution to public debate and to public service in this country. However, this does not come cheap.

Put the question to the Minister.

An Leas-Cheann Comhairle

It is not Question Time. The Minister is not giving way.

The statistics alone indicate that FOI is now a significant burden on Departments. Fees were provided for in the original Act but they have not worked as charging of fees has been the exception rather than the rule. My colleague, the Minister for Finance, Deputy McCreevy, has spoken of the cost of particular requests amounting to thousands of euro. Every public servant involved in processing an FOI request will testify to the time involved. This involves acknowledging the request, discussions with the person to ensure the request is adequately focused and understood, estimating search and retrieval time required, locating relevant records, examining each record line by line for any exempt matter and considering public interest arguments for and against release.

Where third party information is involved, the process can be even more onerous with the requirements to locate and contact third parties, issue formal consultation letters, consider submissions and notify appeal rights. As the fee regime is not working, the Bill now before the House will allow the Minister for Finance to prescribe fees for requests for access to records and for applications for review of decisions which must be paid before anything else happens. Contrary to media reports, the level of the upfront fee has not yet been decided. The high level group mentioned a possible fee of €20, which accompanies planning appeals, as a possible example but the Minister for Finance has stated that he has still to give very careful consideration to the setting of fees and, in doing so, will be careful to strike a balance between the burden and cost of administering the legislation and the need to facilitate access to information.

The Bill contains a number of technical provisions which are designed to improve the operation of the Act. These are based on the experience to date and draw from the work of the Civil Service users' network, the advice of the central FOI policy unit of the Department of Finance and the interactions and discussions between the Department and the Office of the Information Commissioner over the years.

The Government is also proposing to amend section 20, deliberations of public bodies. More certainty is required in this area for the effective functioning of the Government process so that records which relate to ongoing deliberations of Departments are not released into the public domain prematurely in such a way as to undermine the process of Government.

Because it can be difficult to establish whether a deliberative process has ended, the Bill provides that the Secretary General of a Department can certify when a deliberative process is still in progress or has concluded. Secretaries General are responsible people and are in the best position to make an assessment about the work in their Departments. In exercising this function, they will be obliged to operate in accordance with the principles of the Act which provide that it is to enable members of the public to obtain access to the greatest extent possible, consistent with the public interest and the right to privacy, to information in the possession of public bodies. Again, the need for secure protection of the deliberative process is a feature of other jurisdictions and I would instance the Australian FOI law which also provides for certification by secretaries general. The certification provision applies only to Departments, which comprise only 17 public bodies out of a total of 370 covered by the FOI Act.

I do not propose in this debate to dwell on all the other provisions of the Government's Bill – these have already been presented by the Minister for Finance. However, I am satisfied that, having considered the advice of the high level group and having drawn on its experience of the operation of the Act for five years, the Government has proposed a Bill which will improve the day-to-day operation of the Act, better reflect the cost of FOI and protect the integrity of the Cabinet process and the exercise of collective responsibility. The Bill which we are debating today does not address these key objectives and I cannot, therefore, support it.

I thank the Labour Party for introducing this Bill. I also thank the Minister for Justice, Equality and Law Reform, Deputy McDowell, for attempting to address the Bill rather than reading a mimeographed speech into the Official Report.

June 2002 was a significant time for the Government. It was then it discovered that all its free-flowing spending and the promises it made in the election to a gullible public were unsustainable. It was also then it discovered that the rules of disclosure under which it operated for five years were suddenly unsupportable. The public wonders if the two are connected. Was the discovery that all its promises could not be sustained connected to its realising that all the papers around at that time could not be published? There is deep public suspicion about this. The Minister is living in a fool's paradise if he does not know that.

People are increasingly seeing a Government arrogant in its approach, reneging on promises made, making the weakest in our community suffer for over-spending and now seeking to undermine the right of the public to information available to them during the years the Government was in office. We are led to believe that during those years Ministers were scared to put their thinking on paper. We are to believe they were quaking in their boots, were afraid to discuss matters freely or put them on paper because Cabinet confidentiality would be undermined. Yet, these people worked quite freely in the knowledge that all would be revealed five years later. No one has shown me any Government decision that was undermined because of Ministers' fears to submit material in writing. There is no evidence from the high level group of Government breaking down because Ministers were spending inordinate amounts of time at Cabinet on unresolved issues because they were afraid to put those matters in writing. There is no such evidence. The public rightly believes that the real reason behind this is that Ministers are afraid of their sins. They do not want the information on which certain decisions were made to become available, as was the rule under which they operated at the time.

The Minister for Justice, Equality and Law Reform, Deputy McDowell, was to be the public defender and ride shotgun, as Deputy Rabbitte said, on the ways of Fianna Fáil and its tendency to abuse single party Government. The only bullets he has come up with are targeted at the Information Commissioner. It is he the Minister excoriates in this Chamber. The Government, having failed to consult the Information Commissioner about legislation in which he was intimately involved then comes into the House and attacks him as if his motivation was suspect. The approach the Minister for Justice, Equality and Law Reform has taken is contemptible. He admitted he had not read the report but he should have done so before he made that accusation.

I am not a lawyer and I bow to the Minister for Justice, Equality and Law Reform in this regard. However, section 36 states that the commissioner shall keep the operation of the Act under review and may, subject to subsection (2), carry out an investigation and so on. The commissioner alone is statutorily charged with keeping this legislation and not the high level group. He is absolutely entitled to point out to the Houses of the Oireachtas how proposals to change it will undermine its operation. It is clear if one takes the trouble to read the report – unfortunately, the Minister did not have the time to do so – that he had a profoundly different view of the Freedom of Information Act than the high level group whose independence the Minister applauds. These are not independent people. The high level group consists of people who are on the side of those who have an interest in just one side of the operation of the Act. There are others, including the citizens, Members of this House and the NUJ, who have a very different view, yet the Government only sought to consult one side. That was not an independent review and to say that is not to reflect on the integrity of the group. They are parties in this issue and are not independent and the Minister is treating the House with contempt by suggesting they are.

It is clear from the commissioner's report that he has taken a different view. His view of the Act is that it is based on the presumption of openness and not secrecy. This is clear in relation to section 19. Any reasonable person reading section 19 would agree that the Information Commissioner's interpretation is correct. It includes words like "may refuse", the presumption being that, in many cases, they may not refuse but the Government is changing that. It states that the opportunity to refuse will be solely related to Government meetings but the Government proposes to change that as well. It further states that the records which will be protected will be around statements made at Government meetings but again the Government proposes to throw the net extraordinarily wide to protect everything from tax consultative groups to any little two-bit committee Ministers might appoint. They will all be protected as if they were statements before Cabinet. This is a different approach to that in the existing Act.

It will cover the Deputy's request to the Department of Finance.

This is about the costing of manifestos. I have no problem allowing such material to be made available after five years, which is in the legislation, or even within a shorter period. The protection is during the period of a general election.

The five year rule did not apply.

I have no difficulty allowing such material to be made available once the election is over. Naturally, there is commercial sensitivity which is recognised in the Act, to the effect that one does not release commercially sensitive information. Similarly, during the course of an election campaign, there is politically sensitive information which one does not release to one's opponents. The Minister is making some sensible changes there and I do not dispute that there needs to be some protection. It should not be five years but perhaps a couple of years. It is wrong to suggest that this change, which may have justification, justifies throwing out all the protection to allow the public access to Cabinet decisions.

This has been a deeply flawed process. I am not convinced by the Minister's suggestion that what is at the heart of this is to protect the way in which the Cabinet works. What is at work here is the idea that information will become available over the next five years relating to decisions taken five years ago in the lifetime of the last Dáil which would be potentially embarrassing. That is the only reason these changes are being made. There are no examples in the report of the high level group showing justification for the type of changes being made. This is a bad piece of work which reveals much more about the way in which this Government is thinking, the arrogance it has adopted after a term in office and the way it is circling the wagons to make sure it will not be exposed over the next five years to the type of accountability to which the public has a right. That is the motivation behind this legislation.

I have not been convinced by any of the speeches I have heard or read. Not a shred of honest appraisal based on experience has come before the House to justify the changes being made. If the Minister produces some honest appraisal of problems, I will listen. I have an open mind but I see no such appraisal in what is before us. The Information Commissioner got it right. He has highlighted constitutionally unsound definitions and noted that some of the attempts to bring in changes have abandoned all the obligation to demonstrate harm which was at the heart of the old Act, that is, that secrecy can be protected if it can be demonstrated that harm will result if the information is released. The Government is trying to reverse that presumption. That is what is going on here. It is not sound and is not good for the citizen. It should be roundly rejected. I hope that at this late stage, the Government will accept what the Labour Party is offering, namely, an opportunity for us, who have a mutual interest in getting this right, to co-operate, instead of continuing with this jackboot tactic which has been a feature of the last couple of weeks, particularly in this House.

The Information Commissioner has done a good job since his appointment. Nine times out of ten he defends the right to know and the right to transparency and openness in all dealings with Government, health boards, county councils and other public bodies. When the Government increased the amount of money an unfortunate person had to pay under the refund of drugs scheme by £10 per month in 1999, I made a request in regard to that decision under the Freedom of Information Act. I was told by the Department of Health and Children that if it gave me the information, it would undermine the very workings of the Government at its highest level and that it would compromise the bargaining position of the Department of Health and Children in the context of future negotiations with the Department of Finance. Eventually on appeal, the Office of the Information Commissioner agreed to give me the information which was that it was a cost saving exercise on the part of the Department, namely, that it would increase the tax on the sick person so that it would save money under the refund of drugs scheme. If this Bill is passed, will we have access to such information or will the Secretary General of the Department say it will effect future deliberations of the Department and refuse access to the information? The Government wants to close the window which is partially open or to place a fog over what is really going on at Cabinet or in our country.

If one looks at the budget for the Department of Community, Rural and Gaeltacht Affairs, one will see there is a 16% increase for the programme to fight the drugs problem, particularly in cities. However, if one investigates it further under the Freedom of Information Act, as I have done, one finds that there is a shortfall of €7 million and that the advice to the Minister, Deputy Ó Cuív, was that the Cabinet Sub-committee on Social Inclusion and Drugs approved €23 million of work to be done by the local drugs task forces but that the budget was cut back by €7 million. We will not get such information if this Bill is passed.

The Minister for Justice, Equality and Law Reform said one only has to look at newspapers today and compare them with the position ten years ago to see there is now more and better coverage of public policy and its impact on our society and economy. Let us look at a recent decision. The Irish Times stated that the Department of Foreign Affairs plans to move the passport office to Balbriggan, which is great. However, if one reads further there is a comment by a county manager that this took place “in the face of very stiff competition”. The Freedom of Information Act allowed me to discover that €20 million of taxpayers' money will be invested in a new passport office, which is a good thing, and that the office will be in Balbriggan, or so it was thought until the facts were known.

The documents released to me under the Act suggest that there are a number of developments in different areas which would be suitable. Drogheda, my home town, is top of the list but Balbriggan appears with an asterix and the document states that it will not be ready in time. Further information about the location of this €20 million spend by the Government states that the Department got a telephone call about this issue and a document states:

It is a pity that work on the business park in Balbriggan is not more advanced as it is in a good location. Unfortunately a building there is not going to be available for a year after we need it.

A memorandum of meetings between the Department of Foreign Affairs and the Office of Public Works states:

Given the timeframe, it was agreed that a building with at least planning permission in place will be required. The development at Balbriggan would, therefore, not suit.

Nowhere can I find a report on why this building and €20 million of taxpayers' money is going to Balbriggan. I do not know why it is going there although the freedom of information legislation helped me to find out that there is a big question mark over how it got there.

There may be different reasons for that but the reason the decision was made is being withheld from me. I was told it would be given to me in due course when the contracts are signed by the Department of Foreign Affairs, the builder and Fingal County Council. However, it is clearly in the interests of transparency and openness that the information is made available. If the Bill is passed, I do not believe it will be made available?

The Minister for Justice, Equality and Law Reform attacked the Information Commissioner, the defender of the public interest in regard to freedom of information. I welcome the fact that the commissioner has made a submission, which just arrived today, and it is very important that his views are listened to.

There has been a lot of talk about the high level group's consideration of the Act. What of ordinary people who want to establish their right to information on them and what of those on the Opposition benches who want to expose duplicity or double standards in decision making at Government level? They need to and want to know. If the Government succeeds, we may never know and that would be a grave injustice to the democracy, transparency and openness in which the Minister for Justice, Equality and Law Reform claims to have such interest.

Tonight, I have had to listen to the most pathetic defence of Government proposals I have ever heard in my long time in this House. The Minister for Justice, Equality and Law Reform, Deputy McDowell, opened by telling the House that the Bill was partly in the interests of the Opposition. He quoted part of section 25 as being in relief of the Opposition. He then said, off the cuff, that this proved the Bill was not completely driven by the interests of Government. However, there are 27 sections in the Bill so there is the clear implication that the other 26.5 sections are in the interests of Government, as, of course, they are.

The Minister went on to fire a shot across a person who dared to quote an independent view on Government proposals – the Information Commissioner. I declare an interest because I knew the commissioner when he was secretary of the Department of the Public Service, for which I had responsibility as Minister of State at one time. I know of no more independent, decent and honourable man in the public service, yet, because what he said independently did not coincide with the Government view, the Minister, Deputy McDowell, went so far as to claim that the commissioner had no entitlement to express a view.

The Minister went on to quote section 39 of the original Act which entitles the commissioner in this regard, but that is not the point because the Minister is adept at quoting constitutional and legal points to cover political arguments. His political argument is that nobody should dare question the Government in what it is doing. The Minister stated in his speech that it was not clear to him that the Government can or should consult the Information Commissioner, or any other person or body, about how it should carry out its business. The Government's business is legislation yet it does not even bother to consult this House. The way it is jackbooting this legislation through the Seanad is a disgrace, as is the way it has indicated that it is not interested in any view from a Senator or a Member of this House. This is typical of the way the Government conducts its business.

In the pathetic defence of the Bill from the Minister for Defence, he referred lamely to the high level group and stated that the Bill draws on the group's experience and, on that basis, the Government has proposed a Bill which will improve the day-to-day operation of the Act. What was the original Act about? The Freedom of Information Act was – I am quoting from the Long Title – to enable members of the public to obtain access, to the greatest extent possible, consistent with the public interest and the right to privacy, to information. How can a restriction on that be in the best interests of the operation of the Act?

It is a hugely important point. The Freedom of Information Act was not produced for the benefit of the media or the Opposition – I accept the media have an interest in it and more power to them – but for the benefit of the public. Does the Government give a damn about the public? This is one more example of the fact that it does not. This Act was introduced in 1997 for the benefit of the public. The restrictions proposed by the Government are clearly on the right of the public under the 1997 Act. This point must be driven home so that the public knows that this Bill is taking from its rights, not just from the rights of the media and the Opposition. In more than 25 years in the Dáil, this is one of the most serious assaults on our democratic system that I have seen.

Members should remember the background to this. When the freedom of information proposal first emerged, it had the backing of all parties. It was not a creature of the rainbow Government simply because that Government put it through the Oireachtas – it had been part of the programme for Government of an earlier Fianna Fáil-led Government. In 1997, the legislation had all-party backing and went through the Oireachtas without a single dissenting voice. The only criticism of the Bill came from those in Fianna Fáil and the Progressive Democrats – God bless them – who thought it was too restrictive. They should explain themselves now. Nonetheless, that Bill had support from all sides whereas this Bill is being rushed through with unseemly haste. It is the hallmark of a single-party Government, a parliamentary dictatorship which is heading this country towards Mugabe- land. This Bill has all the hallmarks of institutionalised majoritarianism.

The Government has not faced the fundamental issues immediately apparent on this issue. Is the Government prepared to put the possible embarrassment of its Members before the rights of the public? That has not been confronted, nor has the issue of who the records belong to. Do they belong to Ministers, civil servants or the public? Have Ministers and senior civil servants the courage to write down their views and stand over them or is the purpose of this legislation to ensure that they do not have to do that?

I will return to this matter on Second Stage but will now turn to the report of the Information Commissioner, another important matter. The commissioner makes it clear that the amendment to section 20 in the proposed Bill could create serious legal and other problems which have the potential to result in costly legislation. He also makes it clear that the amendment to section 19, in particular, the definition of Government, is absolutely unique in that "the Government" is now to, apparently, include a committee of officials. I realise that the Government is arrogant and thinks it can sweep all before it and ignore the Opposition and the media, at least in the short-term – although it will, as usual, curry favour with the media in the run-up to the next general election – nonetheless, I will issue one little warning to the Government. The Government is not entitled to tell us in a Bill how it is defined, because the Government is defined in the Constitution as consisting of members who shall be appointed by the President, in accordance with the provisions of the Constitution. It is not constitutionally possible for the Government to produce a Bill telling us that the Government can now include a committee of officials. The Labour Party's Bill provides a sensible proposal. Let us adjourn this discussion for a year. That will give us the opportunity to have proper consultation. Let us get rid of the arrogant approach of this Government and end up with a decent amendment if, in fact, such an amendment is necessary.

Debate adjourned.
Top
Share