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Dáil Éireann debate -
Wednesday, 7 Feb 2018

Vol. 965 No. 2

National Archives (Amendment) Bill 2017: Report and Final Stages

Amendments Nos. 1 to 3, inclusive, will be discussed together as they are related.

I move amendment No. 1:

In page 3, between lines 10 and 11, to insert the following:

“ “Information Commissioner” means the Office of the Information Commissioner as outlined in section 43 of the Freedom of Information Act 2014;”.

We obviously agree with the thrust of the Bill and acknowledge that more archives are going to come into the public domain.

The worry we have as a party is that the Bill as it stands could allow for a Minister in the future to make decisions on the basis of the Bill which might be political. What we are simply trying to do with these amendments is depoliticise those decisions. All of us have loyalties to our own political parties and objectives and often archives can shine a light on actions of colleagues or foes. For a Minister to have such a clear power to determine whether archives will be made available etc. creates a difficulty. That is the reason these amendments have been tabled.

A Leas-Cheann Comhairle, you might clarify a matter. My understanding was that amendments Nos. 1 to 3, inclusive, would be grouped together.

Discussed together.

Do you wish me to respond after each amendment?

You can deal with the three of them now.

Amendments Nos. 1 to 3, inclusive.

Yes. You can discuss the three of them together.

Thank you, a Leas-Cheann Comhairle.

I thank Deputy Tóibín. We discussed this considerably on 7 December on Committee Stage. However, I will make some opening comments in regard to it.

The role of the Information Commissioner is defined under the Freedom of Information Act 2014. Amendments Nos. 1 and 3, if carried, would give a co-decision role to the Information Commissioner before a Government Minister could agree to transfer records to the National Archives after 20 years. My Department has been in contact with the Office of the Information Commissioner and, as the Deputy knows, he has informed us that he would be reluctant to take on what appears to be a decision making role that may not fit with his statutory role as Information Commissioner. The Department of Public Expenditure and Reform also supports that view.

I am aware the Deputy is concerned there may be political influence over the early release of documents. All decisions on records to be released under this proposed legislation will be taken in consultation with the Director of the National Archives, John McDonagh, whose functions are enshrined in legislation in section 4(1) of the National Archives Act 1986. In a sense, he is a neutral voice separate to the political process. The input of the director as provided for in section 4 of this Bill allows for the balance the Deputy seeks. I therefore cannot accept amendments Nos. 1 and 3.

In regard to amendment No. 2, and again we discussed this on Committee Stage, the Deputy is requesting the substitution of the word "may" with "shall". The procedure proposed in the National Archives (Amendment) Act is cumulative. I have to say to the Deputy that I consulted with the Attorney General subsequent to our committee meeting on 7 December regarding any proposals to substitute the word "may" with "shall" and he has said that it is cumulative and that before I make any order, I must first consult with the director and obtain the consent of the Taoiseach, the Minister for Public Expenditure and Reform and other relevant members of Government pursuant to paragraph (a). Second, I also have to be satisfied as to the matters referred to in paragraph (b). To clarify for the House, paragraph (b) states:

The Minister may make an order under this subsection where he or she is satisfied that—

(i) (I) the records concerned are of significant historical or public interest such as to warrant their transfer to the National Archives, or

(II) the transfer of the records concerned to the National Archives will facilitate the balanced and fair reporting of matters of common interest to the State and other jurisdictions,


(ii) the arrangements for such transfer are adequate.

If the word "shall" is placed in paragraph (b) that could lead to confusion as to whether I, as Minister, must make an order if I am satisfied as to the matters referred to at paragraph (b), notwithstanding the conditions provided for in the previous paragraph, that is, consulting with the Director of the National Archives and obtaining the consent of the Taoiseach, the Minister for Public Expenditure and Reform and other relevant members of Government. I cannot make such an order, therefore, unless I have consulted with the director, received the consent of the relevant parties and I am satisfied as to the matters referred to in paragraph (b). I therefore cannot accept the amendment.

Where stands amendment No. 1?

I will press the amendment.

Amendment put and declared lost.

I move amendment No. 2:

In page 4, line 18, to delete "may" and substitute "shall".

Amendment put and declared lost.

I move amendment No. 3:

In page 4, lines 18 and 19, to delete "he or she is satisfied that" and substitute "the information Commissioner is satisfied".

Amendment put and declared lost.

I move amendment No. 4:

In page 4, to delete lines 27 and 28.

There are a number of weaknesses in the processes the Government is using in this area. First and foremost are the difficulties with a political decision being made by the Government on whether a particular document will be made available and then the issue of whether the resources will be made available to the Department in order for the Department to be able to carry out its work. As we know, the Department and the National Archives have had difficulty in dealing with much of their workload in recent years. There is a general feeling that there will be a weakness in this process in making sure these archives are made available to the general public.

Again, we discussed this on Committee Stage. If we were to accept the amendment it would put the records at risk. The transfer of departmental records more than 30 years old, the subject of the amendment, is dealt with in the main Act. Essentially, this proposed legislation mirrors the current requirements in the existing legislation where the Director of the National Archives will be responsible for ensuring that arrangements for the transfer of files are adequate, both in the Department responsible for transferring them but also in the capability of the National Archives to take them.

This amendment seeks to delete a provision included in the proposed legislation that assures the safety of the archives. This requirement that the arrangements for the transfer of records are adequate is a long-standing provision in the existing legislation. If this amendment is adopted, it could put records at risk as it would suggest that records could be transferred in a situation where the storage facilities are not adequate.

We consulted with the Director of the National Archives, John McDonagh, who said there are not sufficient resources currently to take all of the archives over 20 years old. That is particularly relevant as the National Archives are embarking on a major upgrading of its facilities on Bishop Street. There is an €8 million development plan and it will take a number of years to complete. The amendment the Deputy is proposing would remove the flexibility that the archives have currently to best manage the intake of records. In the circumstances, I consider that this amendment could put records at risk and, therefore, I cannot accept the amendment.

Amendment put and declared lost.
Amendments Nos. 5 and 6 not moved.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

I apologise on behalf of Deputy Niamh Smyth who is at a function commemorating Countess Markievicz. Fianna Fáil is happy to support the Bill, which is in the interests of Government transparency. It is important that the Republic of Ireland aligns itself in this regard with Britain and Northern Ireland so that we can get across our side of the story in respect of the release of State papers of relevance to Anglo-Irish relations in particular. Fianna Fáil is concerned that many Departments are failing to transfer their records to the National Archives, which matter requires attention. We are also concerned that no system is in place to manage digital records. We hope the Government through the Minister will take progressive steps to ensure Departments meet their statutory responsibilities in relation to archive management and put in place a proper archival management system for digital records.

I was very interested to see the release of the State papers from 1987 because they were of particular interest to me and my family. A letter was released, allegedly send by the UVF to my father, the then Taoiseach, informing him that MI5 had asked the UVF to assassinate him. That was obviously of some concern. It shows what information can be released and the importance of these State papers. The alleged letter from the UVF is something that needs to be investigated further, although it is probably not a matter for the House this evening. Certainly, it is something I will be looking into.

Fianna Fáil supports the Bill which is in the interests of transparency. I hope it will benefit historians in particular and ensure that important papers on Anglo-Irish relations and the Northern Ireland situation are released simultaneously in the Republic and in the United Kingdom.

Sinn Féin welcomes the passage of the Bill. I agree with Deputy Haughey that the difference in release dates between the two countries has been a major problem. The British have obviously been ahead of the game and, as a result, could release papers into the public domain giving their perspective, thus colouring public understanding of serious events in the history of this State. At the time of the release of the particular letter to which Deputy Haughey referred regarding threats to his father's life, I was really struck by the lack of response from the Government. We had documentary evidence of a very strong allegation that the life of a Taoiseach of this country was under a significant threat emanating from the sovereign Government of the neighbouring island through the UVF. However, there was no response from the Government to that information whatsoever. There are many people in Dublin and elsewhere who are very aware that the British are also sitting on documents relating to the Dublin and Monaghan bombings. There is a refusal and a strong reluctance to permit those documents to be made available.

The objective of a modern Government should be a transparent democracy. To have a transparent democracy, we must ensure that information is placed in the public domain. When that information is in the public domain, it allows citizens to make better choices and to understand the processes and the systems around them to a great extent. It allows them to hold those systems to account. My only concern - albeit a strong one - is that we are not providing the necessary resources for Departments to make these archives available within the time provided for in the Bill or for those documents to be processed in such a way as to make them digitally accessible to citizens. I have not been convinced otherwise as yet. I urge the Minister of State to ensure that those issues are addressed.

I thank Deputies Haughey and Tóibín for their comments. It is very important that our shared history is reflected in an adequate way. They are quite correct that the UK has been five years ahead of us since 2013. The 1987 records were released on 1 January 2018 whereas the papers released in the UK on that date related to 1992. It is important to have a synchronised release of official records in order that we can ensure, as both Deputies pointed out, that the Irish side of the story, particularly regarding Anglo-Irish and North-South relations, is reflected in a comprehensive way. That is why the Bill is very important.

In the context of Deputy Haughey's late father, I note the provision in section 8 of the principal Act that provides for the retention of any record which "would or might cause distress or danger to living persons on the grounds that it contains information on individuals, or would or might be likely to lead to an action for damages for defamation." Of course, that only applies to living persons but it is an important protective clause.

I thank the Deputies for their comments. The legislation provides a mechanism to ensure that records over 20 years old which are of significant historic or public interest can be released to the National Archives and, thereby, to the public by recognising the significant resource issues which have been pointed out. I thank the Deputies for their co-operation in expediting the passage of the Bill.

Question put and agreed to.