The draft minutes of the meeting held on 16 March have been circulated. Are they agreed?
Business of Joint Committee.
Is everybody who attended the meeting present?
Seven members were present, including Deputy Nolan and me. The Deputy's points were well noted. He contacted me to object to the change which had been agreed by two thirds of those present and I went with the majority as I could not get unanimous agreement on a day. That is in keeping with the normal rule for committees. As no matters arise, are the minutes agreed? Agreed.
I will leave it as it was.
The next item on the agenda is correspondence. We will proceed in accordance with the schedule issued. I hope members have most of the correspondence issued to them in batches over a period. Some of the items are routine, while others may require discussion.
Item 304 is a letter to the committee from the OECD enclosing a compilation of recent policy briefs on the work of the OECD in China. I suggest we note the letter, a copy of which will be available on request.
Item 305 is a letter to the clerk from the EU liaison officer enclosing correspondence received from the European Union on documents adopted at its session in December 2005. Is it agreed that we should note the letter? Agreed.
The next item is a letter to the Chairman from Senator O'Toole regarding tolls and toll barriers on the M50 as between the State, local authorities and National Toll Roads. As the Senator is not present, I suggest we defer the matter to the next meeting. The documentation supplied is being considered by the Committee of Public Accounts.
Item 307 is a letter to the Chairman regarding section 32 of the Freedom of Information Act. The letter from the Information Commissioner's office was dealt with at the last meeting.
The next item is a letter from the Minister for Foreign Affairs regarding the proposed relocation of DCI to Limerick. We wrote to the Minister following our discussions on the decentralisation programme. His reply is to be noted. The issue of decentralisation will fall to be considered as part of our work programme for 2006.
The next item is a letter from the regulator regarding his retirement. If it is not too late, we will write to Mr. Liam O'Reilly to wish him well in the future and thank him for his assistance.
The next item is a letter to the clerk from Deputy Ó Caoláin enclosing correspondence regarding an individual taxpayer from whom we received correspondence subsequent to our last meeting. Can we take this issue in a couple of minutes?
Is there a further item on the list?
Yes. I am not moving away from the matter to which we will return in a few minutes.
The next item is an e-mail from Mr. KevinLeydon regarding Strasbourg activities. Item 312 is a letter to the clerk from an individual — a lady in Rosslare strand — who wants to bring a matter to the attention of the committee. It relates to the Freedom of Information Act. We can take the matter into account in concluding our report on the Freedom of Information Act review. We will hold onto the letter and consider it when signing off on the report.
Item 313 is a letter to the clerk on behalf of the Ombudsman acknowledging previous correspondence. Item 315 is a letter from Deputy Burton in connection with the Irish League of Credit Unions. As the Deputy is not here, we will defer the matter until she is present.
The next item is an e-mail to the clerk regarding an up-date on interparliamentary debates in national parliaments. I suggest we note the document. We appear to be receiving a lot of correspondence in connection with the EU Presidency.
The next item is an e-mail from Mr. Kevin Leydon regarding highlights of the week in European Parliament documentation. Item 318 is a letter regarding correspondence received from the European Parliament on its session in January. We will note the letter. Item 319 relates to a partnership submission from the Combat Poverty Agency. I presume each member has received a copy of the document. We will note the letter.
Item 320 is an e-mail to the clerk from Mr. Kevin Leydon regarding taxation and the competitiveness agenda. He asks if we need a detailed report on the issue of taxation and customs in the European Union. The e-mail advises us of work being undertaken on the issue taxation by the European Commissioner. We will ask to be provided with a more detailed note.
Will it be circulated?
It will. When we receive it, it will be dealt with under the heading of "correspondence".
Item 321 is an e-mail regarding EU scrutiny and CFAC, the conference of chairpersons of financial affairs committees to be held in Vienna on 29 May.
The committee must be represented.
Can we agree to seek costings to allow the committee to be represented? The matter will be included in the agenda for the next meeting.
Item 322 relates to the OECD forum 2006 on the need for balance in globalisation. Deputy O'Keeffe indicated that he was interested in this item.
The Deputy is a roving ambassador.
We will agree to send two representatives from the committee. We will put the matter on the agenda for the next meeting. An Opposition member can travel with a member from the Government side.
I thought the Deputy was a member of the Opposition.
In politics it sometimes pays to be firmly on both sides of the fence.
I would let him off on his own.
We will discuss the costings at the next meeting because they must be approved by the committee.
Item 323 is a letter to the committee from an individual regarding Tralee Beef and Lamb. I do not know what to do about this. Have members of the committee a view on the matter?
Is it another proposal from Deputy Ned O'Keeffe?
Yes.
I propose we defer further consideration of the matter because there is correspondence from a citizen in Ardfert. We should defer it until Deputy O'Keeffe is present. We can then decide what is the appropriate action to take.
The committee held a meeting. Members were to meet some of the financial institutions but they have not reported back to the committee.
Item 324 is an e-mail which we will note from the clerk of the Sub-Committee on EU Scrutiny regarding additional information on COM (2005) 608 which was referred for consideration to the committee on 26 January. The issue of EU scrutiny will be on the agenda for the next meeting at which there will be a full update.
Item 325 is an e-mail which we will note from Mr. Ronan O'Connor from the Department of Finance regarding updated information on COM (2005) 327. The matter will be included in the review of the EU scrutiny progress report at the next meeting. There are a number of items but, as I said, we will deal with the matter of EU scrutiny separately. Item 326 is a letter to the clerk on the same issue. We will defer consideration of these items and deal with them together as one batch.
The next item is No. 327, a letter from an individual regarding a complaint to OLAF and the Garda Commissioner. We received an e-mail from this individual previously and decided that the issue was not within the committee's terms of reference. We noted it but did not engage in correspondence on the issue. I propose the same response on this occasion.
I will not even try to decipher to what the Chairman refers. Is the suggestion that Mr. Timmins was not able to respond in any way? Is there no provision that allows the clerk to the committee to reply directly to the individual?
We will discuss this in private session.
The joint committee went into private session at 3.22 p.m. and resumed in public session at 3.25 p.m.
Following discussion in private session, we have agreed that the committee will request the clerk to the committee to write to the correspondent stating that the matter is not within the terms of reference of this committee. He will send the correspondent a copy of the terms of reference and point out that we can take no further action on the matter.
Item No. 328 concerns the OECD forum. We will deal with this in a moment as it is connected to a further item.
The next item is a letter to the Chairman from the Minister of State at the Department of the Taoiseach and concerns the transposition of EU matters into Irish law. This matter was discussed at a previous meeting and we agreed to write to the Minister of State with direct responsibility for European affairs, Deputy Treacy. He has sent a comprehensive response which I suggest members should study or use as they feel necessary.
Why did we request this?
At a previous meeting Deputy Burton requested information on the position regarding the transposition of EU measures into Irish law. She wrote to the committee and we wrote to the Minister of State, Deputy Treacy, asking up for the up-to-date position on transposition. We received a detailed response and it is available to members of the committee.
Thank you. I apologise, but I must leave to speak in the House.
Is it agreed that we note the Minister of State's reply? Agreed. The next item is No. 330, a letter to the Chairman from the Minister of State at the Department of the Environment, Heritage and Local Government regarding Tralee Beef and Lamb. We have already agreed to leave this topic until Deputy O'Keeffe is present.
The next item is a letter to the Chairman from an individual regarding his case with the Revenue and the Ombudsman. Deputy Ó Caoláin submitted correspondence on this topic and there is a detailed letter from the correspondent. As we are in public session, I ask members not to refer to the correspondent by name. We come back now to deal with Deputy Ó Caoláin's letter, which we had postponed.
The reason I did not pick up on this item is that the earlier correspondence from Tralee Beef and Lamb eclipsed it; Nos. 330 and 331 are together. I have not read the further correspondence and I am therefore at a disadvantage. I record my thanks for the distribution of the correspondence I presented to the committee earlier on this case. I sought to bring to the committee's attention that following on a parliamentary question I tabled, I established that this case sets a precedent.
It is unique.
One cannot know whether it is unique or sets a precedent until another case presents. If another presents, the previous case can be cited. This is important information. While I have further correspondence from the Minister, which is a reaffirmation of the position he has taken heretofore, namely, that on the advice of both the Revenue Commissioners and the Ombudsman's office, the matter is dealt with and closed.
I alert members of the committee to the further correspondence from the Revenue Commissioners and request that we give further consideration to this important issue. I am at a disadvantage in that I am not privy to the content of the most recent missive from the individual which I now have opened before me. Irrespective of what he may say, the issue for this committee is to highlight the fact that this is a unique case which may also set a precedent. I suggest that the committee should again bring that matter to the Minister's attention. I make that proposition without any sense of expectation of a change in response but it is important that this committee continues to give its attention to this case and the questions arising therefrom. Apart from the fact that I have gone down this road personally in a follow-on to the parliamentary question, I propose that the committee write to the Minister to bring the detail of this fact to his attention and to request his further consideration in line with the committee's view that this is important new information.
I refer to the last letter, dated 8 February, which the Minister wrote to the committee on this subject saying that the door was effectively closed. The committee dealt with this at the previous meeting.
I take issue with one paragraph of the Minister's letter and we will include it in the reply. He states that the case concerning the individual is very different from the case concerning redress for taxpayers. He states that this case was not the subject of a report by the Ombudsman to the Houses of the Oireachtas. He states that while the Revenue Commissioners did not accept the recommendation of the Ombudsman in this case, a compromise was reached in January 2004 between both offices in full and final settlement of the case. The letter states that the gentleman accepted the terms of the settlement and the settlement amount was paid to him. This may be technically correct but I do not regard it as a fair representation of what happened.
The committee is satisfied from its correspondence that a deal was done unilaterally between the Ombudsman and the Revenue Commissioners whereby if €300,000 was offered, a special report would not ensue. The Minister's reply states that the terms of the settlement were accepted. The gentleman's acceptance was irrelevant because the case was closed by the two offices. I hope the Minister is not under the impression from whoever drafted the letter that the taxpayer was party to that agreement in some way. From the way that letter was drafted, one could be excused for thinking that the gentleman was part of the agreement. It is an accurate but not a fair representation of the situation. Does the Deputy appreciate the point I am making?
I concur with the Chairman's point. One can anticipate a response along the lines that once the cheque had been negotiated, this wasde facto an acceptance, which it is not. I could anticipate that such an argument might be presented. It is the correspondent’s view that this was an interim position as he was holding out for the full repayment of the sum as indicated in the Ombudsman’s first assessment.
The committee will include a final point in its reply to the Minister's letter that the €300,000 which was paid — I have seen a copy of the payment slip — was described as "compensation" and not as a repayment of tax. It is important to separate the issues. We are not now referring to a repayment of tax issue but rather an issue of compensation. This should be restated in the reply to the Minister. I have no great expectations of a change of heart but the committee is clear in its approach to this matter and we should not be deflected from our view, regardless of the views of others.
I fully agree.
The next item on the correspondence agenda is No. 332, an e-mail regarding the latest agenda of the ECOFIN Council meeting on 14 March 2006. Has any member expressed an interest in attending that meeting? If nobody has expressed an interest, it will be noted.
No. 333 is an e-mail from Michael Murray, Department of the Environment, Heritage and Local Government, regarding a section 32 report, a freedom of information report. This will be included as part of the committee's consideration of that report.
The next item is a letter to the Chairman from the Minister of State, Deputy Kitt, regarding the select committee debate on the Supplementary Estimate for the Office of the Chief State Solicitor. The committee requested this information just before Christmas as part of the debate on the Supplementary Estimate. The details are available and members are free to read them.
I raised an issue with them at that meeting. This information seems to focus exclusively on the Supplementary Estimate rather than the total Estimate. I refer to a group outside the gate yesterday to do with the State contesting cases. My understanding is that a couple of million euro was expended in legal costs in the particular case involving children with autism in a school in County Wicklow. The amount expended on legal fees would have more than covered the cost of running the new section of the school. I have had a number of replies to parliamentary questions on similar situations. There are a number of cases before the High Court. Parents have taken cases against the Department of Education and Science as a consequence of services not being provided. The money should be spent on the services.
It is valid to question the use of public funds in spending money on court cases when those valuable funds would be much better spent on the children. I wish to understand the reason for taking such a decision. There seems to be a pattern evident in the replies I received. A case rarely goes to a hearing and only when the Department is of the view it has a reasonable chance of success. On two occasions out of the 22 cases in the particular year in which cases proceeded to a full hearing, the Department won the case. In one of those cases the costs were not borne by the parents taking the case. It seems that a great deal of taxpayers' money is being spent doing something that is immoral, apart from anything else.
I question the advice being given by the Office of the Chief State Solicitor on spending this money. Can this be questioned by the committee? It is clear the Office of the Chief State Solicitor is giving advice to Departments instead of settling these cases at an early stage or pre-empting them when it is clear they are heading in a certain direction.
I have no doubt that Deputy Murphy has reflected the overwhelming view of the people as they watched last evening's news on television. The case arising out of the services provided by St. Catherine's applied behavioural analysis, ABA, school in County Wicklow is another in a litany of examples where the State continues to seek to employ illegal mechanisms to deny access to young citizens to the means to fulfil their education needs. It is absolutely outrageous. I have no doubt many people are incensed by this matter which transcends all political considerations. It is therefore imperative that this committee, which has the appropriate responsibility for the budget provision and the Estimate for the Office of the Chief State Solicitor, should ask the salient questions. The critical question is what the criteria are. From where is the advice coming? What is the role of the Attorney General, if any, in the assessment of such cases and the advices given? What steps will we now take to pursue the matter? Should we not reconsider calling the Chief State Solicitor to appear before the committee?
I suspend the sitting temporarily as there may be a problem with recording.
Sitting suspended at 3.42 p.m. and resumed at 3.45 p.m.
How would Deputy Catherine Murphy like the committee to proceed with item No. 334 regarding additional information provided following the Supplementary Estimate for the Office of the Chief State Solicitor just before Christmas?
The committee should invite them to come back and outline the criteria they use when deciding whether cases are contested or whether it could be headed off by dealing with the issue.
The Deputy is stating that in some cases a deal is struck before reaching court.
It is in most cases.
Why can that deal not be struck on day one instead of day 1,000?
It should be done before appearing in the High Court perhaps 15 or 20 times.
To address the issue we would also need the presence of officials from the Department of Education and Science, who, presumably, are instructing the solicitors in the matter. I presume the departmental officials indicate they want to fight the case.
We will invite the Office of the Chief State Solicitor to send an officer of an appropriate calibre to deal with the issue we are discussing. We will also request that officials from the Department of Education and Science should be present. While we are only dealing with this issue, other matters are covered in the Supplementary Estimate. We will need to double check. I do not want to stray into issues covered by the Department of Education and Science. However, as the Estimate for the Office of the Chief State Solicitor is addressed by this committee, it should be answerable to the committee on those questions.
The catalyst for raising the matter today is the protest yesterday outside the gates of this institution. St. Catherine's ABA school in County Wicklow has a complement of 16 students, five of whom are on a waiting list. If my memory is correct, it is only being funded for nine of the pupils and seven would need to be let go by the end of the month. It could be the reverse with seven staying and nine to be let go. Approximately 50% of the complement attending is being funded by the Department. The families and the support group for St. Catherine's cannot be expected to maintain that support into perpetuity. There is a failure on the part of the State and the Department to address their responsibilities to these children. While I do not know what the prompt note states, I would like this reflected in the minutes of this meeting.
To which note does the Deputy refer?
I do not know what the prompt note to the Chairman stated.
It stated it was a matter for the Oireachtas Joint Committee on Education and Science, which is fair enough.
It may well be: I could anticipate that. However, underlying the matter is that the Department relented yesterday and some relief was announced on the back of the protest. Parents needed to go through the harrowing experience of arguing the case on behalf of their children through the courts and we have a direct link to clearing the Supplementary Estimate for the Office of the Chief Solicitor. That is the chain and we have a link in it. We have a responsibility to face up to that.
I have received responses to parliamentary questions about issues like the one that was in the news yesterday.
Has the Deputy received responses from the Minister for Education and Science or from the Office of the Chief State Solicitor?
I have received responses from the Ministers for Education and Science and Health and Children, both of whom were parties to the cases. Both Ministers gave me figures for their Departments and drew attention to the cost to the State, which was borne exclusively by the Office of the Chief State Solicitor. They said they could not give me the exact figures in that regard. I can show the Chairman the parliamentary replies in question in order that he can see the references to the Office of the Chief State Solicitor. I was told the cost of approximately 20 cases was €10 million over two years, but that was just 50% of the actual cost, essentially, because I was not given the figures for the Office of the Chief State Solicitor. It is valid for the members of this committee to ask where the Office of the Chief State Solicitor's costs fit into the budget of that office and to try to ascertain the nature of the advice given to the Department of Education and Science by the Office of the Chief State Solicitor.
An important legal issue is at stake in this instance. Some 48 children in my constituency are waiting to get on a comprehensive application of behaviour analysis to schooling, or CABAS, waiting list, but they will not get on the list. The Department of Education and Science has taken the view that the applied behaviour analysis approach, which is the preference of many parents, is not departmental policy. It allows children to benefit from that approach on anad hoc basis. The criteria which are used by the Department in deciding whether to sanction a CABAS school are not clear. It is wholly unsatisfactory that parents have to campaign continuously to get what they see as a basic form of education that can improve their children’s educational performance. The Department’s failure to state its policy explicitly has led to parents thinking the only options available to them are to go to court or to take to the streets. It is extraordinary and unsatisfactory. I agree with Deputy Catherine Murphy that this is not an issue that should be determined in the courts. The Oireachtas has an obligation to consider the views of parents about the best interests of their children and to support them in their roles as the primary educators of children, unless it is unreasonable to do so. I do not think it has been established that it is unreasonable to offer to parents what they are looking for in this instance. I do not think the Office of the Chief State Solicitor, which is being instructed by the Department in this regard, is at the heart of this difficult matter. The Department is at the heart of the matter but it is unable to grasp the need for children on the severe end of the autistic spectrum to be offered one-to-one tuition. That is the crux of the matter.
I take that point. I suspect it will be argued that the legal advice given to a client by the Office of the Chief State Solicitor is subject to normal confidentiality rules. We probably will be able to tease out a great deal of information before we encounter that argument.
Have we agreed to invite the Office of the Chief State Solicitor to attend a meeting of the committee?
Yes. We will invite representatives of the Office of the Chief State Solicitor to attend this forum in the company of the appropriate officials from the Department of Education and Science. We will not set the date for that meeting now. We will give the officials in question copies of the transcripts of this meeting in order that they will know what the issue is.
I will circulate the replies to the parliamentary questions I mentioned.
The Deputy will give that information to the clerk to the committee.
Yes.
That is appreciated.
The next item on the correspondence agenda is No. 335, which is an e-mail about the EU plenary session in Strasbourg. We will note that.
The next item is No. 336, which is a letter from the Institute of Chartered Accountants in Ireland, enclosing the institute's position paper on the audit exemption regime in this country. The letter is to be noted. Did all members receive a copy of the letter? Can we forward the letter to the Joint Committee on Enterprise and Small Business, which is the relevant committee, to deal with it? The Department of Enterprise, Trade and Employment is responsible for the legislation in question.
The next item is No. 337, which is a letter from the Organisation for Economic Co-operation and Development, enclosing a policy brief. I suggest we note the letter.
The last item on the correspondence agenda is the list of statutory instruments, a copy of which was circulated today. One of the statutory instruments relates to double taxation. Another one of them designates the Commissioners of Irish Lights as an approved organisation for the purposes of the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act 2001. I suggest we note that. I do not think we need to do anything on it. The next statutory instrument relates to double taxation relief, taxes on income and adjustment of profits for associated enterprises. It pertains to the EU accession states in particular. I suggest we note it as I do not think there is anything of particular interest in it. The next statutory instrument is being made under the Taxes Consolidation Act 1997. It amends the qualifying urban relief for Tallaght provisions to correct a drafting error in the original order. A new statutory instrument with a new schedule is required to correct the error. The next statutory instrument, No. 412, corrects a drafting error in a similar order that relates to Banagher, County Offaly.
It has nothing to do with——
It has nothing to do with Tallaght. We will get Banagher right.
I will just leave that comment hanging.
I know. I looked at it closely when I saw it.
As they say where I come from, "That beats Banagher".
Indeed. I examined it carefully when I first saw the statutory instrument in question.
The final statutory instrument is a regulation relating to the levies and fees charged by the Central Bank and the Office of the Financial Services Ombudsman. The regulation, which was made by the chairperson of the office, provides for a scheme of levies on regulated entities to fund the operation of the office for the year ending 31 December 2006. We will note that. Is that agreed? It has been passed in legislation that such a scheme of levies can be put in place. Agreed.
That concludes the joint committee's consideration of its correspondence agenda. I will skip the next item on the agenda in order that we can deal with this committee's annual report for 2005, which has been circulated. It should not take long to consider it. The report lists the meetings of the joint and select committees in 2005 and includes transcripts of the proceedings. It mentions the work that has been completed and the work that is in progress. It refers to the trips undertaken by the members of the committee.
I have not received a copy of the annual report.
It was circulated yesterday. We can delay the joint committee's consideration of the annual report if the Deputy wishes. The committee is obliged to lay an annual report before the Oireachtas each year. I would like to note one aspect of the report — on page 10, under work progress, the report mentions some work that was commenced by the joint committee in 2005 and will be "concluded" in 2006. It should state that the work will be "continued" in 2006. The work in question includes our scrutiny of EU proposals, review of the workings of the Freedom of Information Acts and consideration of the decentralisation programme. It is obvious the work will continue, rather than conclude, in 2006. Have the members of the committee had an opportunity to examine the annual report?
Yes
Are they happy to approve the report, which is quite straightforward? It is a simple record of what was done by the joint committee during the year. I think the committee should approve the report, subject to——
I have received correspondence from the Irish League of Credit Unions, which has said it is looking for an opportunity to address the joint committee. Has it been agreed to receive such a delegation?
The only letter that has been received by the committee in that regard was sent by Deputy Burton, who submitted correspondence she had received from the Irish League of Credit Unions. As she was not present when the matter was considered, we decided we would hold it over. If members want to deal with the matter in her absence, for example, by agreeing to invite representatives of the Irish League of Credit Unions to address the committee, they can do so.
I think we should invite the Irish League of Credit Unions to attend a meeting of the committee as it is obvious it is interested in doing so.
I did not pursue the matter earlier because Deputy Burton was not present.
Did the Irish League of Credit Unions write to individual members, rather than to the committee secretariat?
Its representatives must have decided to write to individual members, such as the Opposition spokespersons. Perhaps that is why Deputy Bruton received a letter.
I certainly received a letter.
I did not see any letter from the Irish League of Credit Unions other than the one that was forwarded by Deputy Burton to the committee.
I propose the committee should invite the Irish League of Credit Unions to attend a meeting of the joint committee.
We will deal with that item of correspondence and agree to invite the Irish League of Credit Unions to address the joint committee. We can set an appropriate date at a later stage. Is it agreed to adopt the 2005 annual report on the committee's proceedings? Agreed.
The other main item on the agenda is the review, under section 32(2) of the Freedom of Information Act 1997, of the operation of the freedom of information legislation. The joint committee should decide what will be our next step forward. Last week we heard from the Secretary General of the Department of Finance and the Information Commissioner, Ms Emily O'Reilly. Of the 150 items raised in the Information Commissioner's report on the operation of the legislation, she agreed with the Department on approximately 110 items and disagreed with it on 42 items, more than half of which related to the Departments of Health and Children and Enterprise, Trade and Employment.
How do members wish to proceed with our consideration of the matter? One suggestion on the 42 items was that the joint committee write to the relevant Ministers requesting that they review their original positions in light of the Information Commissioner's report. Another suggestion was that we write to the Ministers indicating that we had received 42 recommendations from Ms O'Reilly which we propose to accept and requesting a comment from the relevant Department. We could choose either option.
The Information Commissioner highlighted a specific case which came to her attention by accident. She makes a global recommendation on how the problem arising therefrom could be overcome by introducing further legislation. Was this matter discussed?
Yes, that point was raised and we will return to it.
The official from the Department of Finance indicated that new legislation would be impractical as it would be a very large Bill. We did not have an opportunity to hear the Information Commissioner's view on his dismissal of her recommendations. We should seek a comment from her on the matter.
It was clear that the Information Commissioner is never consulted on cases in which new legislation proposes to exclude new bodies from the terms of the Freedom of Information Act. The recommendations of the joint committee should include at least two proposals. The Information Commissioner's views should be sought every time new legislation proposes a new exclusion and the joint committee should have a right to hear her view on the matter. She should, if she chooses, have the right to comment on any proposed change.
I was dismayed to learn that the Information Commissioner's views are not sought when the extension of the freedom of information legislation to other bodies, for example, the Garda Síochána or vocational education committees, is being considered. In other words, the Department of Finance appears to base its decisions in these matters on the views of the relevant Departments or other insiders without taking into account those of the Information Commissioner who represents outsiders, namely, those who are to be protected under the Freedom of Information Act. The joint committee should seek the introduction of an administrative requirement that the Department of Finance and relevant Departments seek the views of the Information Commissioner which would be recorded and presented to the Oireachtas on a regular basis. Under the current approach, the question of extending freedom of information provisions to the Garda will be left dormant.
On the outstanding cases listed by the Information Commissioner, we should request that a report be submitted to the Oireachtas outlining her views on the proposal to continue to exclude various bodies, including the Garda Síochána, from the terms of the Freedom of Information Act. This would allow Members to learn the reasons the Government proposes to continue to exclude a body and the reasons the Information Commissioner opposes such decisions. The latter would also have an opportunity to outline the relevant experience in other countries.
We must include these two recommendations in our comments. I suggested last week that the joint committee should write to the Departments indicating that we are sympathetically disposed to accepting the Information Commissioner's recommendations and giving them a strict period within which to respond. That is the correct approach. If we want to do something in the meantime, I suggest we examine one Department where issues of substance arise in the disagreements with the Information Commissioner.
The majority of the 42 points of disagreement relate to the Departments of Health and Children and Enterprise, Trade and Employment.
We should, in the short term, try to assess the reasons one of those Departments believes the protections of the Freedom of Information Act, which the Information Commissioner, Ms O'Reilly, outlined to the joint committee, are not adequate to meet their needs. At least then we would see the whites of the eyes of the proponent of both sides of the argument, as it were, and be in a position to determine the differences of principle.
I was persuaded by the Information Commissioner's argument that the legislation protects privacy, commercial confidentiality and the national interest, all factors she would consider in deciding not to grant a freedom of information request. The joint committee should definitely take the four steps I have outlined. After one hearing we may feel sufficiently confident to proceed with our hunch that we should accept the recommendation to extend freedom of information provisions to the cases raised by Ms O'Reilly.
I regret I was unable to attend last Thursday's meeting. I did not agree to the change in the schedule which was made to accommodate people outside the joint committee. While it is not possible to suit everybody, the arrangements for the meeting were disappointing. I have furthest to travel of Opposition members of the joint committee. I am not suggesting it is a hop, step and jump for anybody else but it is certainly a day's travel for me. The change of schedule clashed with other commitments and I could not make the meeting. I have made my protest about the change, which I now reaffirm.
If the opportunity had presented, I would have liked to have indicated that the report from the Information Commissioner is of great concern and demonstrates the Government's disposition on freedom of information and its ongoing attempts to whittle down the principles of the Freedom of Information Act. When the Freedom of Information (Amendment) Act was introduced, I and others pointed out what was clearly the real purpose of the legislation and our concerns have been borne out. The impact of the increased fees alone has contributed to a decrease in freedom of information requests and made prohibitive the option of accessing information through freedom of information provisions. I note the Information Commissioner agrees with and bears out this view.
The Information Commissioner's report also highlights further problems with the Government attitude to information. Deputy Bruton referred to the continued exclusion of the Garda Síochána from the terms of the legislation. However, the Office of the Refugee Applications Commissioner, the Central Bank and IFSRA are also excluded from its terms. This committee deals with the last two bodies, neither of which has been mentioned. This is of great concern and it is beyond my comprehension that vocational education committees are not covered by freedom of information legislation. These are all publicly funded bodies carrying out public functions, yet they do not come under the terms of the Freedom of Information Act.
I wish to make a few points in this regard. One is that, of equal concern, is not only their exclusion but that there is no indicated timeframe for their inclusion. Real and substantive questions arise therefrom and the Taoiseach, in the first instance, is the person answerable in regard to freedom of information, in principle rather than in the detail. A matter that should be highlighted to him is that it is the committee's view that it is wholly inappropriate that these areas of the broader State service should not come under the terms of the Freedom of Information Act and that a timeframe for their inclusion should immediately be set.
The committee should express its support for the Information Commissioner and the views she has expressed in the letter from the director general of her office to the Department of Finance on the exclusion of the Health and Safety Authority, HSA, from the terms of the Freedom of Information Act. Why should it and the Health Service Executive be excluded? I am incredulous of this also, and all the difficulties there are in getting information through the Department. All health inquiries are kicked to touch in terms of the HSE and still we have the difficulty of it not coming under freedom of information legislation. These are huge gaps.
We must point out the way the Information Commissioner established that the HSE did not come under the terms of the freedom of information following the dissolution of the health boards. This was also sleight of hand in my opinion and a further indication of the point I made earlier. I do not label everyone in the Government parties as being comfortable with this but Government is a means by which these decisions have been accommodated and implemented. However uncomfortable it is for the Chairman and his colleague, these important issues need to be addressed. Has the Chairman ever seen a more frosty reply than the letter from the Department in response to the director general in the Information Commissioner's office? I do not think there is one. These are serious matters.
While my last point is not directly related to freedom of information, nevertheless I wish to mention another freedom of information issue, namely, how public-private partnerships are concealing information about public policy and public spending. One example was the recent case of a member of the board of the Abbey Theatre, Mr. Ulick O'Connor. I am sure members are familiar with the detail of this case. He was denied information on how the decision was reached about the relocation of the Abbey Theatre. Although he is a member of the board, he was denied the information on the basis that it was commercially sensitive. That is now becoming a mantra for denying members of the public access to pertinent and relevant information regarding public moneys. The public-private partnership element of it is now being used as a further hook on which to deny access to critical information. That a member of the board could be denied information in this way is doubly incredulous. It is important to record that real issues need to be addressed and unless the nettle is grasped we will continue to see these inconsistencies and a further and ever-strangling approach by Government to the initial intent and purpose of the Freedom of Information Act.
I think it is valid to concentrate on points of disagreement. I support Deputy Bruton's point about having a fixed date for writing and getting a reply. This is a reasonable approach and would allow us to evaluate what comes back at that stage. It is obvious from the report that there is almost no confidence in the Freedom of Information Act or the protections within it across a number of sectors. The Information Commissioner makes that point repeatedly.
We must also be quite searching in what we look for from Departments in terms of the point that has been made by the Information Commissioner. It is not sufficient for them to repeat that a matter is excluded. We need to get the reason behind the decision and whether Departments rigorously look at the protections within the Freedom of Information Act prior to making their decision. The Information Commissioner is certain about the protections that exist.
I also agree with the point made that if one cannot legislate to redress a situation where a problem arose, one must find another mechanism to do it. The point made about automatic notification is a valid one, but this would have to be considered in every legislative measure. It is almost like poverty proofing something. A means must be found to ensure that the situation that arose whereby the Information Commissioner found out about the exclusion by accident cannot happen again.
We must also not lose sight of the fact that there should be a facility for adding additional organisations. A set point must be agreed for adding organisations as it will not just come up in individual meetings. It appears to me that the right time to do so would be when we are considering the report. We should timetable this in as part of the agenda. For example, information from the national cancer registry should be available to people. It would be valid for people to be able to find out if there are hotspots in certain parts of the country as this would be a natural cause for concern. This type of information is not readily available to people but it is within our rights to be able to access such information.
Reference is made in a few places in the report to the National Archives. I do not know if the Chairman is a regular visitor to the National Archives on Bishop Street but it is very constrained in terms of space. The Minister for Arts, Sport and Tourism has conceded that there is a difficulty with space. There is an argument for the construction of a new purpose-built facility because more information and records are becoming available. The Information Commissioner referred in a number of places in the report to a sunset clause where after a specific period, information goes to the National Archives but this cannot be done if the space is not available.
I tabled some questions to the Department of Education and Science on the redress scheme. Some of the material relating to the redress board is more than 30 years old. The material is global rather than personal in the sense that the confidentiality of individuals would not be breached. Some of the material includes information on the dialogue between the Department and some religious institutions or congregations. Some of it is much older than 30 years and is still not available. When one asks about it one is told it is being used by the Residential Institutions Redress Board and that there is no requirement to provide it as a consequence.
I received a reply to a question on records held in the British archives concerning Irish archives and was told by the Minister for Arts, Sport and Tourism that it would be possible to obtain photocopied documents and information in all sorts of other formats, such that copies would be available in more than one location. Photocopiers are available in Ireland also and there is absolutely no reason the information in question should not be available in the archives if it is 30 years old. There is a contradiction to be addressed.
It is in all our interests to conclude the meeting as efficiently as possible. Of the points of disagreement between the Information Commissioner and the Departments, 11 concern the Department of Health and Children and ten concern the Department of Enterprise, Trade and Employment. Some Departments have no points of disagreement and others have one or two. We should not go beyond the aforementioned Departments because if we deal with them alone we will be dealing with the majority of the issues that arise. Should we invite officials from the Department of Health and Children as it has the most provisions for secrecy or should we also invite officials from the Department of Enterprise, Trade and Employment? I suspect most of the provisions related to the Department of Enterprise, Trade and Employment will concern commercial sensitivity. The Department of Health and Children will be different. We should devote only one meeting to this aspect of the committee's work.
I propose to invite officials from the Department of Health and Children.
It has more provisions for secrecy than any other Department in terms of conflict with the Information Commissioner.
Although the Information Commissioner welcomes the fact that the Department has placed another 16 items under the Third Schedule——
For the benefit of members, proposals were made last autumn to include more than 100 items. We will deal with this at the next meeting. Will we invite a senior official from the Department of Health and Children who is competent to explain the 11 items of legislation? This would add a good flavour to our work.
Can we also agree to highlight the deficiencies we have all articulated?
We will prepare a report promptly at the end of the process.
Will it be forwarded to the Taoiseach?
It will and it will be laid before the Houses of the Oireachtas. A five-year review is required, which we are carrying out. The one due during the term of the last Dáil was not completed but that will not happen this time. We will complete our work and invite competent personnel from the Department of Health and Children. We will then have a good feel for the issues involved and be in a position to issue a report. We will probably give the respective Departments a number of weeks to respond and state how we intend to proceed.
Are we clear about the role of the Information Commissioner? I believe she acts as a referee or judge and should not be a participant in the process. Should we really involve her in discussions regarding items that should be included in respect of each Department given her job is to adjudicate at the end of the process? One does not consult the Judiciary on every Bill — its job is to interpret our decisions. The Information Commissioner should not be part of the decision-making process and at the same time be asked to adjudicate.
If the issue is whether the VECs should be open to FOI scrutiny given the Department of Education and Science says they should not, and given the Department is arraigning all the arguments and persuading colleagues in Government that the door should be kept closed, it is clear the only informed voice that can articulate that FOI scrutiny would not damage the VECs and would be healthy for them is that of the Information Commissioner. It would be wholly wrong for the Government not to be informed by this when making decisions. I do not accept the Chairman's suggestion that because the Information Commissioner rules on individual applications, her independence in doing so would be compromised if she were to say how the system works in respect of the Garda, VECs, the Adoption Authority of Ireland, the Central Bank, the State Claims Agency or the Central Applications Office, for example. If she receives an individual application afterwards, she must use the defence as set out by the Oireachtas to decide whether it should be refused on the grounds that it infringes privacy or commercial confidentiality.
I am only posing a question.
I argue strongly to the contrary.
Will we proceed by inviting officials from the Department of Health and Children as it is the Department with 11 points of disagreement with the Information Commissioner? After that meeting, we will proceed immediately to put in place steps to conclude our consideration of this matter and prepare a report.
I favour inviting the Departments.
Does the Deputy want to meet representatives of the Department of Health and Children first?
I would invite the Departments simultaneously stating we are well disposed to favouring the Information Commissioner's view.
We will give them four weeks to respond.
Yes.
Ultimately, if they continue to disagree, we will issue our report outlining our perspective.
I got the impression from the finance official that some Departments may have changed their positions in the intervening period.
A small number. We will proceed on that basis.
At 10 a.m. on 5 April the select committee will deal with the OPW Estimates. The time scheduled is presumably to accommodate the Minister of State's timescale. At 4.30 p.m. on 26 April we will deal with the Estimates concerning the Department of the Taoiseach and, immediately after considering them, the joint committee will meet the German finance committee.
Will the meeting on 5 April not clash with Taoiseach's questions?
The meeting of 5 April is a Wednesday. What are the members' views on that?
It could be postponed until 11.30 a.m.
We will reschedule the meeting because the scheduled time will not be satisfactory.
Should the joint committee meet again on Wednesday, 29 March, or on Wednesday, 12 April, bearing in mind that the select committee is to meet on 5 April? Can some members of Deputy Bruton's party attend?
I am sure they will.
There are some items we need to discuss in the context of the work programme. Will we try to meet on 12 April? The Dáil will not sit that week.
We have no problem with that.
At least there will be some members of the Deputy's party here. We will meet on 12 April.
At what time shall we meet?
What time suits members in a non-sitting week? Is 11 a.m. suitable? I am advised 3 p.m. is our normal slot. We will opt for the afternoon meeting. The joint committee will meet at 3 p.m. We will not set the agenda yet. I will keep it flexible because it will depend on the availability of visitors and so on.
The joint committee adjourned at 4.30 p.m. until 3 p.m. on Wednesday, 12 April 2006.