Dáil Éireann debate -
Wednesday, 29 Jan 2014

Vol. 828 No. 2

Freedom of Information Act 1997 (Prescribed Bodies) Regulations 2014: Motion

Minister for Public Expenditure and Reform (Deputy Brendan Howlin)

I move:

That Dáil Éireann approves the following Regulations in draft:

Freedom of Information Act 1997 (Prescribed Bodies) Regulations 2014,

copies of which were laid in draft form before Dáil Éireann on 24 January 2014.

I welcome the opportunity to move this motion today. This will permit the making of regulations to enable the application of the provisions of the freedom of information, FOI, legislation to Irish Water. This measure is being introduced in line with the procedures set out in the existing FOI legislation but will continue in force after the new FOI legislation that is before the House is finalised.

Recent developments have highlighted the importance of a high degree of openness and transparency in helping to underpin public confidence and trust in Irish Water in light of the critical role and responsibilities of that body in respect of what is one of our most valuable natural resources. In those circumstances and given the very significant impact that the operation of Irish Water will have on all households and businesses in the State, there is a broad consensus shared by Government that the activities of Irish Water should be undertaken in an appropriately open, transparent and accountable manner so that the public can be assured that it is being operated as efficiently and effectively as possible. Application of FOI is one of several mechanisms for ensuring that this will be the case.

As the House may be aware, during the Committee Stage debate on the FOI Bill last November, I indicated that I would take steps to make Irish Water subject to FOI following the enactment of the new legislation and once the body was up and running. Following the recent public debate on the establishment costs of Irish Water and the meetings of the relevant Oireachtas committees attended by Irish Water's management and also taking into account the expected timetable for the enactment of the FOI Bill which we originally hoped would be enacted before the end of last year, I indicated in this House on 22 January my intention to take these necessary steps now to ensure that Irish Water is brought within the FOI legislation as soon as possible.

Section 3 of the Freedom of Information Act 1997 provides that regulations may be made to extend the coverage of the Act. In such cases, section 3(3) of the Act provides that a resolution approving of these regulations in draft form must be passed by the Dáil and Seanad before the regulations can come into effect following the signing into law by me with the consent of the line Minister, which in this case is the Minister for the Environment, Community and Local Government.

The normal practice is to give public bodies a period of six months to put the necessary administrative arrangements in place to enable them to respond to FOI requests in an efficient manner. There is an elaborate procedure required to comply with the Act. It is reasonable that Irish Water should be allowed some period of time to make such administrative arrangements but in the circumstances, I think a period of six months is too long. I believe that 30 working days would be an appropriate timeframe to enable Irish Water to make these necessary preparations.

Accordingly, I ask the House to support the necessary motion to extend the provisions of the FOI legislation to Irish Water with effect from the date of its legal establishment - so it will be backdated to 17 July 2013. In addition, records held by the Departments of Environment, Community and Local Government and Communications, Energy and Natural Resources and the local authorities relating to the establishment of Irish Water and in any dealings with Irish Water since establishment are and will continue to be covered under FOI, subject to the normal operation of the Act. In conclusion, I am calling for the support of the House for the motion to enable Irish Water to be brought under FOI with effect from its establishment date of 17 July 2013 and for that to happen within 30 working days of the receipt of the signing of the resolution.

Deputy Seán Ó Fearghaíl

I am speaking in place of Deputy Fleming who cannot be with us. The decision to bring Irish Water under the FOI legislation is the correct one and the Government's climbdown is welcome. The Government is implicitly accepting that it should not have rejected a Fianna Fáil amendment to the FOI legislation when it went through the Oireachtas last October that would have achieved the same outcome. We now need more than a change in the law. We need a complete change of culture with regard to Irish Water.

The instinct up to now has been to operate the company solely in the interests of management and of the aim of raising money for the Department of the Environment, Community and Local Government. The needs of customers must now be put at the heart of what Irish Water is doing and this will require an openness and transparency which, sadly, has been lacking to date.

While the extension of FOI to Irish Water is a welcome and long overdue decision, it will be totally inadequate if there is no corresponding commitment on the part of the Minister for the Environment, Community and Local Government to provide full accountability through parliamentary questions regarding what is, in effect, a State monopoly set up for the express purpose of levying water charges on families throughout the nation. The Minister should confirm his intention to provide as much information as possible in response to parliamentary questions relating to Irish Water and not force Opposition parties, investigative journalists or concerned citizens to have to submit further FOI requests for what should be routinely available information. We need to get away from the minimalist approach regarding the provision of information. I think it was the former Taoiseach, John Bruton, who famously said that he was not asked the right question when explaining why he did not give a particular piece of information. It is often said that sunlight is the best cleanser. Given the controversy in which Irish Water has been enveloped to date, it could certainly do with some sunlight. It should take a proactive approach to readily providing information that is requested in recognition that it is ultimately there to serve the public and not its management or, indeed, the Minister.

FOI requests will help shine a light on the culture and practices of the organisation but it will take political action to change the direction of the company, which has been significantly focused to date on putting in place a billing structure to extract money from families with no recognition of the need to achieve value for the customer. The claim made by Professor John Fitzgerald of the ESRI that Irish Water will incur excess costs of up to €150 million per year is indeed alarming. It is essential that the information necessary to verify or refute this claim is made readily available by Irish Water. Irish Water is essentially a State monopoly and when it becomes subject to FOI, claims of commercial and supplier confidentiality must not be used to routinely inhibit the level of detail that will be provided in response to FOI requests. It must be possible to look at actions right back to the inception of Irish Water. The commitment the Minister has made to make the FOI provisions retrospective to last July are welcome but we need to see how this will apply in practice. Any attempt to wriggle out of full transparency will only further fuel public suspicion that the Government's commitment to increasing access to information is more about spin than anything else. As it stands, every time the Minister is asked about the pricing regime and the nature of the free allowance, we are told that they are matters for the Commission for Energy Regulation, CER. Members of the public have been led to believe that there will be a generous free allocation but it now transpires that customers will pay a substantial standing charge negating the concept of a free allowance. It is imperative that the process deployed for charges is brought out into the open. The Minister should not be allowed to hide behind the CER when it is essentially doing his bidding.

The extension of FOI to Irish Water is an opportune time to look at the additional costs the Minister is imposing on FOI requests. The Minister should commit to coming back to and reviewing these additional charges in the next 12 months. I am conscious that only yesterday I asked a question of the Minister for the Environment, Community and Local Government in respect of the establishment of the Water Services Transition Office, which is the body formed by the County and City Managers' Association and which has had something of the order of €5.7 million allocated to it. I wanted, via the question, to establish who had received that money. I note that while I am told in the response that €3.5 million was paid in 2013 for the recoupment of costs for an average of two or three representatives of each county council, I have not been told who these people were.

Were those moneys in addition to the salaries already received by the councillors or were they in lieu of salaries? Were they paid to county managers? If we are to have a full approach to freedom of information, this is the type of information that we need to be able to receive on a routine basis.

Deputy Brian Stanley

I welcome the fact that Uisce Éireann will be brought under the provisions of the Freedom of Information Act and that those provisions will be applied retrospectively from last July. It is a U-turn on the part of the Minister and Fianna Fáil, if I correctly heard the latter welcoming this. Fianna Fáil had intended to restrict the legislation further.

When I submitted a parliamentary question in November, the Minister defended the exclusion of commercial State bodies on the grounds that it would lead to an uneven playing field where there was competition with private companies. In Uisce Éireann's case, however, there is no such competitor, nor should there be. This is a State company and will be the sole provider of water.

Regardless of that, our position is that commercial semi-States should be included in the Schedule of bodies covered by freedom of information. Other legislative protections can be provided to deal with commercial sensitivities. I therefore call for the inclusion of Coillte given its central role in the planning of wind farms in the midlands for electricity export. Coillte has avoided discussing many other issues for which it has been accountable on the grounds that it is supposedly a commercial company. What the Minister is doing is good, as it will help us to learn what is happening at Uisce Éireann, but I urge him to consider including Coillte in this context as well. Before his party entered into office, it promised to do so if in power.

It is important that freedom of information exists and is being applied retrospectively. I have asked many parliamentary questions about Uisce Éireann, but it has been frustrating. I looked across at Ministers and Ministers of State who either did not know the answers or needed to fob me off. This is regrettable. For example, the Minister of State, Deputy O'Dowd, was put in an awkward position. There are lessons to be learned from this process. We turned on a radio news programme and all of the answers that we had been trying to get in the House for months were broadcast over the airwaves in a matter of minutes.

There has been much discussion on strengthening the role of the House. The Minister is committed to doing so, but the Uisce Éireann fiasco diminished the role of the elected representative of all parties. Whatever we might think of one another, we have been elected by our constituents and should be able to get straight answers about taxpayers' money. Anywhere public money is spent, elected representatives should be able to get answers to reasonable questions within a reasonable time.

I hope that we receive full and open answers to Dáil questions on Uisce Éireann. Perhaps the Leas-Cheann Comhairle will allow the Minister to respond, as I am unsure of the format of this debate.

Deputy Brendan Howlin

I will have five minutes.

An Leas-Cheann Comhairle

Yes, there will be a reply.

Deputy Brian Stanley

I have a quick question on the Comptroller and Auditor General's role as regards Uisce Éireann. We all want there to be openness and transparency. As the Minister knows, we disagree with setting up a new superstructure over county councils and turning them into subcontractors, but it has been done. The Government had the majority to ensure that. Why can the Comptroller and Auditor General not audit Uisce Éireann? What are the Minister's plans in that regard?

However, this motion is a good day's work by the Government. It should have been done sooner, but at least it is being done now. That the legislation is being applied retrospectively is welcome. We will try to do our job as public representatives to ensure that public money is spent well and that the people spending it are held accountable.

An Leas-Cheann Comhairle

The next five-minute slot is being shared by Deputies Luke 'Ming' Flanagan and Wallace.

Deputy Luke 'Ming' Flanagan

We seem to be in a new enlightened period of Irish politics where semi-State bodies will be subjected to openness and transparency. This is supposedly proven by the fact that Irish Water will be covered by the freedom of information legislation. However, this would not have happened were it not for the Government being hammered into doing so by the public. It became too ridiculous to do otherwise.

Why stop there? What is so special about Irish Water that the Government would allow it to be covered by freedom of information? As Deputy Stanley hinted, why not apply the legislation to Coillte? What is so different about Coillte? Even Fianna Fáil has stated that we need a less minimalist approach to freedom of information. The dam has broken if that is the case.

Can the Minister imagine a Deputy being approached with allegations that fraud has been committed against a semi-State company only to discover that every avenue for acquiring information that should be available to him or her is blocked off, be it the Comptroller and Auditor General or freedom of information provisions? The Deputy might try to have a chat with the Minister, the company's boss. Guess what the Minister told us? He told us that he could not get information out of Coillte about an alleged fraud against our company because it was commercially sensitive. Are we meant to accept that a Minister, who is in effect the company's boss, is not privy to its information on grounds of commercial sensitivity? This is a farce.

I encountered the same issue on Roscommon County Council as a member of its corporate policy group. We were meant to be in control of the council, yet I was told that I could not have certain information about our own money because it was commercially sensitive. Why is this being done with Irish Water but not Coillte? My office is preparing a Bill to change this situation. Now that the Government is open to transparency, it will probably vote for the Bill.

Deputy Mick Wallace

Last week, the Taoiseach told the House that no public body should be secretive and that the people had a right to know. When the freedom of information motion is passed, however, 41 public bodies will be totally exempted and 24 will be partially exempted. We have probably the most oppressive freedom of information regime in the developed world. It is accepted that there is no democracy without an informed citizenry.

Big business, through its ownership of newspapers, television channels and radio stations, can buy influence and control media content. It can impact on how politicians behave and deal with legislation. This is a major problem. According to the Minister, recent developments have highlighted the importance of a high degree of openness and transparency in helping to underpin public confidence and trust in Irish Water. Might he apply the same statement to the Garda Síochána, a secretive organisation?

The problems with penalty points that we have been examining over the last 18 months bears this out strongly. The Garda still refuses to publish this code of conduct. There is no code of practice issued for statutory powers given to gardaí. It is not published. The GSOC has no power over them. Officials in the GSOC have no access to the PULSE system. They are not allowed to look at policies, practices, procedures and they cannot investigate the Commissioner. That is a big problem. Given that we do not know what is happening with the Garda Síochána, because it is not covered by the Freedom of Information Act, members of our media go to the gardaí, have a nice chat with them and the gardaí leak certain stories to them. In return, the media look after them.

An Leas-Cheann Comhairle

You are moving away from the motion.

Deputy Mick Wallace

We have a list of so-called crime correspondents who, rather than challenge the workings of gardaí, work with them instead. This is all due to the fact that we do not have proper access to information on how the Garda Síochána operates. It is in the interest of the citizens of this country that there is far more open access into how the Garda Síochána works, and not just Irish Water.

An Leas-Cheann Comhairle

I call on the Minister to reply.

Minister for Public Expenditure and Reform (Deputy Brendan Howlin)

I thank Deputies for their contribution and their support for this motion. Deputy Ó Fearghaíl characterised this as a climb-down but he was not here when we debated the FOI amendments on Committee Stage, when I explained the position on commercial semi-State companies. The default position of the new regime - to borrow a phrase from Deputy Wallace - will be that every public body will be included. The excluded public bodies are commercial semi-State bodies. We either determine that we are going to have a publicly owned commercial State sector, or we do not. No country has commercial semi-State companies that are open to a degree of transparency to which their rivals are not. Their rivals would put in the FOI requests. That is not the way it works. They are accountable under the Companies Acts as a commercial company. When I was debating this on Committee Stage, I said that where they are operating in monopoly positions, that argument would not hold. That is why I said I would look at dealing with the monopoly companies, including Irish Water, when the new legislation was enacted. I am now fast-tracking that because the enactment of the legislation is taking a bit longer and the issues that have arisen have become more acute and we need to address them. That is why I am extracting those, but we will be having a full debate on FOI generally.

Deputy Ó Fearghaíl made a point about the commentary of Professor John FitzGerald. A comprehensive rebuttal of that is available in today's Irish Independent from the Minister for the Environment, Community and Local Government, factually dealing with issues as opposed to assertions that are made by people. People need to listen objectively, not hear just the noise, but also the facts. The objective of this whole process for Irish Water is to take 34 disparate water providers to establish one world class water utility that will provide a safe and adequate water supply to the people of Ireland. That is what is in train here.

I have argued Deputy Stanley's point about the exclusion of the semi-State companies with his colleagues on the public expenditure and finance committee. Whether it is the Sinn Féin view that it is in favour of public enterprise or not, we cannot spancel public enterprise and expect it to thrive. I am in favour of public enterprise. My party, by default, is in favour of public enterprise, but we need to have such enterprises operate on a level playing field with private companies. It is a code to kill off State enterprises to pretend that we can a new burden of regime on them------

Deputy Brian Stanley

I was talking about monopolies.

Deputy Brendan Howlin

The Deputy has a fair point about monopolies. We will look at that in the context of new legislation.

I strongly agree with the Deputy on the role of the Oireachtas. We need to have vigorous sectoral committees holding State agencies and Ministers to account. I think that is happening and we need to resource it better. This will evolve over time. Having the sectoral committees doing their work and giving them the necessary resources would be very good. It will rebalance the imbalance that exists between the Executive and the Parliament, which is something I have always argued as a parliamentarian. We need to move to a European model. All that we are doing in terms of FOI, accountability and the lobbying legislation is important in that respect.

Deputy Flanagan has a dismissive notion of semi-State companies. I support them.

Deputy Luke 'Ming' Flanagan

On a point of order, I never dismissed semi-States. Get your facts right.

An Leas-Cheann Comhairle

The Minister is very limited-----

Deputy Brendan Howlin

Through the Chair, Deputy Flanagan thinks he is on the back of a lorry in this place, and he can scream down people with whose views he does not agree. I heard him say that he wanted to put in place a regime that in my judgment would kill off the semi-State sector. That is not something I am going to support. In terms of the general-----

Deputy Luke 'Ming' Flanagan

Do you support the-----

Deputy Brendan Howlin

Stop shouting people down. This is Parliament. You are not on the back of a lorry. This is our national Parliament and people are entitled to hear and be heard, the same as I listened to you. I did not shout you down.

Deputy Luke 'Ming' Flanagan

Bring on the next election.

Deputy Brendan Howlin

The commitment I brought to the Government last year is to join the Open Government Partnership, which is a cutting edge set of measures to have transparency in everything we do. Part of what I want to do in that is to have what I describe as "open data". I hope that FOI will become obsolete over time, because open data means that we should have all information in the public domain as a matter of course. We have to work towards that and that is the objective I have set for the Government. We are drawing up a national plan on the Open Government Partnership, and I am pleased to say our efforts to date are such that we are now going to host the European Open Government Partnership annual meeting, which will take place in May. The cutting edge countries in respect of open government, FOI and so on will all be here. At the last meeting in London, I was asked to give the presentation because the legislation we have crafted on whistleblowers is regarded as world class. All these things are being addressed and I thank Deputies for their support.

Question put and agreed to.