Eamon Gilmore
Question:1 Deputy Eamon Gilmore asked the Taoiseach the progress made by the Office of the Attorney General in implementing the Sullivan report following the A Case in 2006; and if he will make a statement on the matter. [16717/10]
Ceisteanna — Questions
Constitutional Issues
Enda Kenny
Question:2 Deputy Enda Kenny asked the Taoiseach if he will report on the implementation of the Sullivan report; and if he will make a statement on the matter. [17726/10]
I propose to take Questions Nos. 1 and 2 together.
The Attorney General has informed me that all of the recommendations of the Sullivan report have been fully implemented.
One of the developments that occurred in the aftermath of the Sullivan report was the establishment of the Joint Committee on the Constitutional Amendment on Children. The committee, which was chaired by Deputy O'Rourke, reported in September 2008 and recommended that legislation to deal with so-called soft information should be introduced as a matter of urgency. Why has such legislation not yet been published? What is the Government's intention in respect of the legislation?
At the beginning of this year, the committee recommended that there should be a constitutional referendum on the rights of children and it published an agreed wording to be put to the people in such a referendum. What is the Government's position regarding the holding of a referendum on the rights of children?
The Deputy's second supplementary is somewhat outside the scope of the original questions.
No, it relates to progress relating to the Sullivan report. The report in question dealt with the A case in 2006 and the matter to which I refer is one of the follow-ons from it.
The recommendations in the Sullivan report relate to the internal workings of the office itself and were designed to ensure that matters of a sensitive nature would be brought to the urgent attention of the Attorney General. All of those recommendations are being implemented.
On the other matters to which the Deputy refers, I have outlined to the House on a number of occasions the position with regard to the proposal for a referendum on children's rights. Work in that regard is continuing. I understand that legislation relating to soft information is being dealt with by the Minister of State with responsibility for children, Deputy Barry Andrews.
The Taoiseach is well aware of the Taoiseach that must be followed with regard to the preparatory work that must be done to facilitate the holding of a referendum. The all-party Oireachtas committee did its work well and its members, on all sides, agreed on a wording, which was forwarded to the Minister of State with responsibility for children. There is a process with must be undergone when information of this nature arrives on a Minister's or Minister of State's desk.
That matter is not contemplated by the two original questions.
It relates to the holding of a referendum on children's rights, which emanated directly from the Sullivan report. If the Ceann Comhairle has a difficulty with that, I am sure I could probably be of assistance to him.
What stage has the work of the Minister of State with responsibility for children, Deputy Barry Andrews, reached? Does the Taoiseach envisage that the process involving the Minister of State to which I refer will be concluded before the House rises for the summer recess? The latter will have a bearing on whether it will be possible to hold a referendum on children's rights this year. I hope it will be possible to hold such a referendum.
What is the current position with regard to vetting people who work with children? It appears the HSE has placed some children with certain foster parents who have not been vetted. That is intolerable, particularly when one considers what could happen. Will the Taoiseach comment on that matter?
The recommendations in the Sullivan report make no reference whatever to a constitutional referendum on children's rights. Instead, they relate to risk assessment procedures, the co-ordination and allocation role of the advisory counsel, management of the office and information technology. There is no reference whatsoever to the referendum on children's rights in the Sullivan report. I have outlined to the House the progress in regard to that matter. Specific questions that are the line responsibility of the Office of the Department of Children and Youth Affairs can be addressed there; I do not have the information to answer those questions.
All of these matters dealing with children — the Sullivan report and every other report — have to be taken into account in the context of holding a referendum on children's rights. What is the position in regard to that?
With respect, the questions relate to——
Does the Taoiseach know the answer?
These questions ask me to report on the implementation of the Sullivan report. That report made specific recommendations in the areas set out in the report. The reply, as I am informed by the Attorney's General's office, is that all the recommendations of the report have been fully implemented. All of the supplementary information I will have in regard to this matter relates to the Sullivan report.
So the Taoiseach does not know.
Putting down a specific question will elicit the answers.
The Taoiseach will recall that the Sullivan report arose from a situation that developed when the Government had not been advised that a constitutional challenge had been taken by somebody who was convicted of child rape and was then released from prison. That is my recall of the context in which it arose — the Government had not been informed of the constitutional challenge to the statutory rape law and the self-confessed child rapist was released from prison. In the context of the Sullivan report, which was published in 2006, can the Taoiseach give us any sense of certainty that we will not face a similar situation again? Can he, in whatever response he may have had prepared for this sequence of questions, give the House any assurance that we are not likely to see a recurrence of the situation that pertained to the Sullivan report in 2006?
In regard to the centrality of the Office of the Attorney General to the Sullivan report and all that maintained leading up to it, does the Taoiseach accept there would be greater confidence in that office if there were greater transparency and openness in regard to its role? Excepting the confidentiality relationship between the Attorney General and the Cabinet, does the Taoiseach agree there are matters on which the Attorney General advises that would allow for greater openness and contribute to a greater understanding in the first place, as well as a better acceptance of decision-making on the part of the Attorney General and the Government where confidentiality is not required? As an example, the Taoiseach was not overly pleased about my questions at the time but this might apply in regard to my queries on the advices the Attorney General had given vis-à-vis the HSE and the reports on the deaths of children in State care. That is just one example.
The review conducted by Mr. Eddie Sullivan, former Secretary General in the public service section of the Department Finance, arose in the context of an information and notification deficit that occurred in the Attorney General's office over the handling of a particular judicial review case known as the CC case. The case was first notified to the Attorney General's office in November 2002 by the Office of the Chief State Solicitor by way of a minute referring to the case listed on 16 December 2002 and requesting the nomination of counsel. A declaration was sought in the CC case by way of judicial review that the Criminal Law (Amendment) Act 1935, section 1(1), was repugnant to the Constitution. The respondents in these cases were Ireland, the Attorney General and the DPP. The report sets out the background, explains what happened and gives the overview of the office. It goes on to make certain recommendations regarding governance arrangements and so on. All of the recommendations arising from that review are being implemented.
Regarding the question of transparency in respect of the Office of the Attorney General, the Attorney General's functions derive from the Constitution. His position is described in Article 30 of the Constitution as the adviser of Government in matters of law and legal opinion. The functions, powers and duties of the Attorney General are to be found in the Constitution, in legislation, primarily section 6 of the Ministers and Secretaries Act 1924 and in judicial decisions delivered prior and subsequent to the founding of the State. The Attorney General is assisted by advisory counsel in the discharge of this wide range of functions. The four principal legal functions carried out by the office as a whole may be summarised as the provision of legal advice, legislative drafting, the processing of litigation and conveyancing and other transactional services through the Office of the Chief State Solicitor.
In regard to the policy that applies, I am answerable for this in the House. The Attorney General, in terms of legal advice, has the confidentiality of Cabinet. It is important we respect his independence and that his advice is given based on the merits of the case. It is a matter for Cabinet or Ministers to decide what they wish to do thereafter. I believe there is transparency consistent with the Attorney General being allowed to carry out that independent role effectively.
I have not had an opportunity to ensure certainty in terms of my point in this regard. I understand the individual at the centre of the CC case went on to commit a further heinous act some years later, with tragic consequences for people. The Taoiseach and I may differ on this. If it is the case that there is no precedence in regard to the release of advices by the Attorney General, it becomes ever more difficult to argue the case. The Taoiseach may or may not accept there is an element of questionable uncertainty or lack of confidence in the role of the Office of the Attorney General in regard to this and other matters. I suggest that confidence could be restored if in certain situations where clearly there is not a serious confidentiality issue involved the advices could be made known and offered to Opposition parties and spokespeople as appropriate. This would perhaps provide for a greater understanding of decisions taken by Cabinet and in regard to advices given by the Attorney General.
Would the Taoiseach consider such a proposition and will he explore any merit in this regard in due course?
The issue arose when the importance and sensitive nature of the case was not brought in a timely fashion to the attention of the Attorney General. Therefore, the question that arises is not in regard to the merits of the advices subsequently provided by the Attorney General or advisory counsel but in regard to the timeliness in this regard based on the fact that the system did not respond in the way one would have expected when this important and sensitive case arose. Amidst all this confusion, the matter went to court and was dealt with independently by the courts. There were lessons to be learned for the future to avoid a recurrence of the set of circumstances in which this issue arose from the Attorney General's knowledge of the stage the case was at and what was being done on an operational basis regarding it. This would have been one of hundreds of cases that would have been ongoing at any given time. Lessons must be learned from that and it is to the credit of the office that all the recommendations outlined in the report are being implemented. That is what the House would expect and I am glad to report that is the case.
On the wider issue of where there are often different points of views about the merits or otherwise of the advices of any particular legal officer, any government can only rely on, and is constitutionally required to deal with, advices based on the Attorney General's advice. Otherwise, one would get advices, and possibly contrary advices, from a range of people which would not necessary add to the coherence or understanding of the legal aspects of a particular decision that needed to be incorporated by Cabinet on a particular subject.
There are good reasons for that being the case. The independence of the Attorney General must be respected. His office is not a political office in that sense. He is a member of the Government but he retains that independent legal function. It serves Government well to have it that way. The matter for resolution in respect of advices he gives are resolved in the courts, not here. The advices he gives, for example, on the preparation of legislation are discussed here. There is good reason he is not brought to the centre of political controversy or debate and in that way politicisation of the office is avoided.
Departmental Records
Enda Kenny
Question:3 Deputy Enda Kenny asked the Taoiseach the procedures in place in his Department for the archiving of documents and records that are in electronic form; and if he will make a statement on the matter. [16886/10]
Eamon Gilmore
Question:4 Deputy Eamon Gilmore asked the Taoiseach if he is satisfied that adequate procedures are in place within his Department for the preservation of records and documents held in electronic form, especially in regard to meeting the obligations of his Department under the National Archives Act; and if he will make a statement on the matter. [17845/10]
Caoimhghín Ó Caoláin
Question:5 Deputy Caoimhghín Ó Caoláin asked the Taoiseach if he is satisfied that there are adequate procedures and facilities in his Department for archiving documents held in electronic form; and if he will make a statement on the matter. [20231/10]
I propose to take Questions Nos. 3 to 5, inclusive, together.
I am satisfied that there are satisfactory procedures and facilities in place in my Department for the preservation and archiving of all records, whether in electronic or paper form or otherwise.
My Department complies with the requirements of the National Archives Act 1986 which stipulates that all official records, regardless of their format, which are received or created by the Department of the Taoiseach must be preserved.
Specifically with regard to the preservation of records held in electronic form, all members of staff in my Department are provided with the appropriate ICT facilities to create and manage these records as part of the Department's work support system.
All electronic records are stored on the Department's storage area network on which every individual staff member and every section is allocated space. The storage area network is backed up nightly with incremental back-ups, weekly with full back-ups that are stored for one month, monthly with full back-ups that are stored for at least 12 months and annually with full back-ups that are stored indefinitely.
Each staff member also has an additional e-mail file. They are backed-up and stored as above. In addition, all e-mail messages in my Department are electronically stored using an e-mail archiving product that captures all e-mail message into a secure e-mail archive.
The National Archives Act lays down regulations as to how the storing of records is governed and empowers the National Archives to instruct State bodies on the storing of archives. I understand there are currently clear regulations governing the storage of paper records but it appears there are no regulations governing the storage of electronic records. The Taoiseach said that all the staff in his Department are enabled to do this. I understand, and the Taoiseach can correct me if am wrong, that systems on which storage takes place today use the term "2007 system" and that such systems may well be inaccessible in 20 or 30 years' time. Does what the Taoiseach referred to in his reply cover the putting of electronic information in a system that can be accessed or that it will be possible to transfer to a system whereby historians in the future can look up information contained in his Department? Is that the case? Is the Taoiseach satisfied that whatever information is in his Department, both in paper and electronic form, can be stored properly? Under the National Archives Act, there is an entitlement to instruct State agencies to transfer electronic information to a system that will enable it to be accessed. Did the Taoiseach in his reply confirm this to be the case, namely, that no information, either paper or electronic, will be lost for future years?
As I said in my primary reply, we are in compliance with the Act, which, as the Deputy knows, is about preserving records for storage and subsequent release within the provisions of the Act. The Department is complying with that, according to my information.
The Department uses standard well-documented formats, such as Microsoft Word, Microsoft Excel, PDF and Lotus Notes for electronic documents and records. Whenever system or database upgrades are performed checks are carried out to ensure that existing electronic documents and records remain accessible. It is also standard practice in my Department to convert data in older formats to more up to date formats on an ongoing basis to preserve accessibility into the future. For example, older documents created in Lotus Word Pro are converted into Microsoft Word format and older spreadsheets created in Lotus 123 are converted into Microsoft Excel format. These are updated according as upgrades come on stream.
The National Archives Act empowers the National Archives to instruct Departments and agencies to migrate information to systems that can be stored for the future. Does the Taoiseach have any information about that? Some Departments are not under an obligation to do so. Letters came to public notice recently from the Famine period, for example. I do not say these kinds of letters are in the Taoiseach's Department but in future years that information will be of interest to certain people and one would not want to lose it from our history. Does the Taoiseach's brief contain any information regarding the implementation of the National Archives Act being carried through by other agencies and Departments where they are concerned?
The National Archives advisory council has been dormant since 2007, when the last appointments ended. Is it intended to reappoint a National Archives council, abolish it or merge it with some other entity whereby some person can reflect on the situation that applies in the National Archives? There are obviously problems of storage and so on.
The issue regarding the council mentioned by the Deputy is that the Government has indicated that the National Archives, the Irish Manuscripts Commission and the National Library of Ireland shall be merged into a new national library and archives of Ireland. That merger will require amendment of the National Archives Act 1986 and the National Cultural Institutions Act 1997. The Minister for Tourism, Culture and Sport, Deputy Mary Hanafin, proposes to update the relevant archival legislation as part of that process. The new draft legislation will abolish three separate existing bodies and establish a new body. The initial draft of the legislation has been completed and transmitted to the directors of the National Archives and National Library and to the chairman of the Irish Manuscripts Commission for their observations. It is intended to bring the legislation before the Houses this year and it is the Minister's intention to reappoint the council in a new guise in order to advise on the amalgamation process as soon as she has the observations of the directors and the chairman of the Irish Manuscripts Commission.
The Deputy asked whether any electronic data has been archived away from the Department's storage area network. No data has been archived to date as there is sufficient capacity in the storage area network to accommodate all electronic records in my Department. Until such time as standards and guidelines are available my Department will continue to retain electronic documents and records indefinitely.
I thank the Taoiseach for the update on the merging of the National Library with the Irish Manuscripts Commission and the National Archives. Some careful reflection is needed on the composition of that proposed body. My question is in the context of the Irish Manuscripts Commission. I understand a significant number of important and valuable Irish manuscripts are held in monasteries and other locations abroad. We know the number and locations of these documents but many are beginning to seriously disintegrate. They are a fundamental and valuable part of this country's heritage and history, and some are very aged. It would be important for the authorities and owners of the locations where the manuscripts are held to be contacted either by the Department of the Taoiseach or the reformed entity as a matter of some urgency.
The Taoiseach will recall a number of years ago when an exact facsimile of the Book of Kells was introduced and sold to locations around the world. In these cases, the manuscripts are starting to disintegrate and will be beyond reprieve over time. It is an issue for the country and the manuscripts involved are of exceptional importance to the country and the make-up of our history. It would not do for them to be irrevocably lost.
I have a recollection of the Deputy raising this matter before at Question Time. I do not have any relevant supplementary information to the question asked. I will have the matter checked out and come back to the Deputy.
I thank the Taoiseach.
The State and the National Archives have considerable experience of the storage and retention of paper records and it is a credit to the Civil Service over the years that very good files have been retained, maintained and transferred to the National Archives, which has been very important for historians.
We have considerably less experience of the retention and storage of electronic records and I appreciate that the Taoiseach has set out the way in which records are kept electronically and backed up. What assurance do we have that these records will survive in electronic format and future historians, when they come to consider documents under the 30-year rule, will still have the range of material available to them as they have had up to now?
I heard the Taoiseach's reply to Deputy Kenny with regard to the National Archives advisory council, which has not been in place since November 2007. This kind of body is required now to advise on what is a major transition from paper to electronic record keeping. I would have thought that it is at this time a body like that, particularly if it included technical expertise, which would be exactly what is required. Is it not the case that the proposed merger of the National Archives, the National Library and the Irish Manuscripts Commission will make this position worse? I do not understand how the merging of the National Archives and the National Library will improve the keeping of records and their retention.
Regarding contemporary records, an issue arose when the Ryan report was published, in that material was available to the commission but not included in the report. The records of the interviews and accounts given by victims of abuse should be retained, so can we have an assurance to this effect and that they will be available in the National Archives?
Will the Taoiseach assure the House that the records being created in respect of NAMA will be retained for future reference?
Under the legislation, the normal reporting mechanisms have been put in place regarding NAMA. Obviously, the statutory requirements there will be adhered to in the normal way.
On the matter raised by the Deputy about the Ryan report, I will have to check on the situation. As he knows, the non-adversarial nature of the way in which people were able to bring their claims meant that statutory proofs were not required and people were not being convicted in that sense. People who could prove that abuse existed de facto and that they were in attendance at those institutions proceeded to obtain compensation on that basis to avoid the adversarial court system. I do not know what impact that process has on the extent to which that information can become more widely available. I will have to check and get the details as to what is to happen in respect of that documentation and inform the Deputy accordingly.
Regarding the earlier matter that the Deputy mentioned, the talk is that the council, as I understand it, will be appointed on the basis of the present consultation that is taking place between the three organisations. Once she has those observations, she can look to the establishment of such a council. I cannot say why it has not gone ahead. Perhaps a direct question to the Minister concerned would derive more information as to the circumstances behind that.
As to the question of electronic records being preserved and provided in the same way as paper files in the past, as I have said the whole purpose of the archives Act has been to impose an obligation on Departments of State to preserve records created and-or received in the course of performing official functions, to seek authorisation from the director of the National Archives prior to the destruction of any of those records and, from among its record holdings, to transfer to the National Archives those records worthy of permanent preservation because of their ongoing value for administrative and historical research purposes when the records are 30 years old so that they can be made available for public inspection and research use. The Act applies to all records of Departments of State regardless of the format, so it is an obligation. As I outlined in the previous answers to the question, I can confirm that my Department, in discharging its responsibilities as a Department of State, is meeting those requirements, including on electronic data.
Regarding my question on the NAMA records and with respect, the Taoiseach is making a great presumption to the effect they will be maintained in a format capable of being available under the National Archives Act 1986. Has the Department of Finance or the Government given an instruction that the records relating to NAMA are to be preserved and made available in the course of time? If that direction has not been given, can we have an assurance that it will be?
Regarding the retention of records by Departments, the National Archives Act was introduced in 1986 at a time when information technology as we know it now was in its infancy. That was a quarter of a century ago. Has any audit been carried out on the adequacy of the way in which records are being retained to ensure that they will be available for the archive? Records have traditionally been available in paper form, but much more material is stored today in electronic format, and the kind of note that might be written on the margin of a paper by a civil servant is now more likely to be in an e-mail. Such records are essential for future historians. Has there been any auditing or any kind of check done by someone with competence in this area to assure us that the records are being maintained? The Taoiseach has said it appears that it is largely at the discretion of individual Departments as to what records should be kept.
I was making the general point that there is normal reporting mechanisms to the Houses of the Oireachtas in respect of the operations of NAMA. The banking laws that apply in this case apply as they do in respect of any banking transactions. Obviously, I cannot give any commitment that all this will come under the National Archives Act. I do not think that was intended at the time. The accountability arrangements for the National Asset Management Agency are in place under statute and we will abide by them.
Given the increased use of information technology across Departments, it is anticipated that the volume of digital material eligible for transfer to the National Archives will increase substantially in the coming years. This is one of the biggest challenges that national archives around the world will face in future. Section 19(3) of the National Archives Act 1986 provides that the Minister for Finance may make regulations, after a consultation with the director of the National Archives, for the proper management and preservation of departmental records. This power is similar but not identical to the power of the Minister for Finance under section 15(5) of the Freedom of Information Act 1997 to make regulations, after consultation with the Information Commissioner and the director of the National Archives, providing for the management and maintenance of records held by public bodies. That is an area that could be examined profitably to deal with this changing trend.
Much of what I had wanted to ask on the archives advisory council has already been put to the Taoiseach. He has told us about the review under way on how this will be presented in a new format with other areas of related interest. He mentioned the National Library. We are gone almost three years now without the council, and given the significant challenge to the safe storage and maintenance of archival material — both paper and electronic — is there not a reason to expedite a decision on the new arrangements that will apply?
The last time we asked these questions, the Taoiseach indicated to me that a Bill would be brought forward following the determination of the type of advisory council that would emerge. Does he have any idea when the current considerations will conclude? When will we see that legislation so that we can look at the terms of references for a new archives advisory council, by whatever name or format? I presume no legislation is under preparation because no decision on the future format of all of this has been taken.
With regard to the various Departments, and high volume paper usage Departments in particular, are different regimes in place for the retention of files material? Is there a period of time after which they are normally disposed of? Is there a blanket retention? Is the Taoiseach in a position to give any sense of whether different arrangements apply to high volume paper usage Departments, such as the Departments of Health and Children and Social Protection?
A question please Deputy.
Is the Taoiseach in a position to offer any insight into this?
The National Archives Act sets out the obligations on Departments to preserve records that are received or created in the course of performing official functions. One can then seek authorisation from the director of the National Archives prior to the destruction of any of these records. In other words, not all records per se must be archived and maintained, for obvious reasons. One can transfer to the national archives those records worthy of permanent preservation because of their ongoing value for administrative and historical research purposes when the records are 30 years old so they can be made available for public inspection and research use. There is an obligation to retain records and one has an opportunity to obtain the consent of the director of the archives to destroy records. There is also a requirement to transfer after 30 years those records that are relevant for historical research or other administrative reasons.
With respect to the management and preservation of electronic records, it is important to understand that while records in the past have been predominantly in hard copy format, time has not been as critical a factor in their preservation. The advent of electronic records has meant that it is not possible to wait until 30 years from creation to take measures to ensure preservation. By their nature, electronic records are more vulnerable to loss in the short term because of the nature of their composition. This brings into sharp relief the question of procedures to manage and preserve electronic records, preferably from the point of creation. Like all Departments, the Department has procedures in place to ensure the backing up and protection of electronic records created. The point to be made is that the question of regulations, and whether the Minister for Finance should in consultation with the director of the national archives for the proper management and preservation of departmental records provide for such regulations, is a matter for consideration at any time. The growing volume and trend of electronic storage of data may well require that something needs to be done.