This amendment arises from a point made on Second Stage and it concerns consultation in the event of the Taoiseach wishing to amend the Schedule of bodies to the Act. The existing text provides that the Taoiseach shall consult the director. The point was made that consultation with the council would also be desirable. This view is accepted as valid and advice to the council would be beneficial and accordingly, this amendment is proposed to meet this point.
National Archives Bill, 1985: Committee Stage.
Government amendment No. 1:
In page 4, line 23, after "Director" to insert "and the Council".
I support this amendment. It seems to me that when we go to the trouble of selecting a council which will be acting in co-ordination with and under the newly appointed director we should give them the fullest possible consultation. The council will be composed of people with a specialised interest in this subject and with knowledge and experience. It seems reasonable and sensible that decisions taken should be done in the fullest possible consultation with this body. I suport this amendment.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
An Leas-Chathaoirleach
Amendments Nos. 2, 3, 4 and 5 are related and may be discussed together.
Government amendment No. 2:
In page 5, between lines 4 and 5, to insert the following:
"plans, drawings,".
These amendments are designed to ensure that the list of what will be included in archives will be as comprehensive as is humanly possible. Amendment No. 2 adds in plans and drawings which might not perhaps, have been comprehended in the original definition list. Amendment No. 3 proposes the insertion of files. It is certainly over-superfluous as it is almost certain that files are included amongst papers. Just in case there could be any ambiguity it is included. I am advised also that the inclusion of "and other micrographic records" out of microfilms would be desirable and that "optical or" should be inserted before the word "video".
If at any stage Senators have any other views about anything else that should be added for the sake of completeness, I, of course, would take it on board on Report Stage, but we have endeavoured to include everything we can think of here to ensure that the National Archives will comprehend all forms of documentation and I am even hesitant to use a word such as "documentation" least that might not be comprehensive. They should include everything that ought to be included.
There is just one difficulty I see in regard to the amendment. That is, as we add all of these it becomes more and more an attempt to make a complete specification. If there has been an omission, the omission is more glaring and indeed, the legal view might be taken, since there has been such a very complete specification here, that the omission was deliberate. I think it behoves all of us and, indeed, the outside bodies with their interest in archives, to think again about this problem between now and Report Stage. Once we have embarked on this idea of exhaustive enumeration, then it has to be exhaustive.
Amendment agreed to.
Government amendment No. 3:
In page 5, between lines 5 and 6, to insert "files,".
Amendment agreed to.
Government amendment No. 4:
In page 5, line 8, after "microfilms" to insert "and other micrographic records,".
Amendment agreed to.
Government amendment No. 5:
In page 5, line 13, before the word "video" to insert "optical or".
Amendment agreed to.
Government amendment No. 6:
In page 5, line 16, to delete "in connection with" and substitute "in the course of".
This amendment arises from a point made by Senator Robinson during Second Stage, a suggestion that "in connection with its business" may have been seen as restrictive and that "in the course of its business" may be better. On reflection, there seems to be some validity in this view in that the latter phrase "in the course of its business" would appear to comprehend peripheral documents received and held in a Department but not necessarily directly concerned with its mainstream activities. I am happy to accept the amendment, or propose the amendment suggested by Senator Robinson.
I would like to welcome the acceptance of the principle in relation to these documents. Again, it answers the criticism of restrictiveness.
Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."
With regard to section 2 (1) (d), unfortunately I was not present for the discussion on Second Stage because I was out of the country, I take it that this section would include bodies such as the Archives of the Church of Ireland and other bodies of this kind. It says "held...elsewhere than in the Public Record Office" I wonder could the Taoiseach enlarge on that just a little with regard to parochial records and diocesan records of the Church of Ireland, which will be affected by this Bill.
The intention is to cover such records and I think the ones the Senator refers to would, from my recollection, come under paragraph (d).
May I take it that, having accepted all of these amendments, the definitional problem in relation to the term "archives" is now satisfactorily addressed? We had an argument on Second Stage on which we gave notice we would raise on this Stage the use of archives, bodies of patrons and so on. May I take it that the listing that we have been discussing answers this substantially?
It is the intention that it should. I hope it does. The National Archives has a double sense. It refers to the institution. It refers, I suppose, to the documentary content the institution is in control of. There is an inherent ambiguity in the phrase. I do not think that will mitigate anything we are doing in the Bill.
Question put and agreed to.
Section 3 agreed to.
SECTION 4.
Government amendment No. 7:
In page 5, to delete lines 41 to 44, and substitute the following paragraphs:
"(c) the examination and acquisition of departmental records in accordance with this Act,
(d) the inspection and examination of arrangements for the preservation of departmental records and, with the consent or at the request of the appropriate member of the Government, the examination of departmental records,".
This amendment arises out of a number of representations concerning the role of the director vis-a-vis records in Departments prior to their transfer to National Archives and have become 30 years old. As the Bill stands, the director would have the right to inspect departmental records only at the request of the appropriate member of the Government. The need to strengthen the director's powers in this regard has been recognised and it is considered that the proper balance has now been achieved in the amendment put forward. Under this amendment the director would have the right of inspection and examination of arrangements for the preservation of departmental records. This is an important function particularly with the proliferation of computer and modern technological data storage systems. He will satisfy himself that the Departments are taking proper steps to ensure their records are adequately preserved. The further power contained in the amendment relates to the actual inspection of records, that is, the ability to examine records themselves as distinct from examining arrangements for their preservation. Under the amendment, the director can take the initiative in seeking to examine records where he feels this is necessary.
It primarily concerns current records and there will be circumstances where Ministers will feel unable to allow access to particularly sensitive records. For example, in the security area, access to sensitive security information would normally be allowed only to a very restricted number of departmental officers and, even then, only on a need to know basis. In general, it is felt that the director will, through this mechanism, have access to most departmental records. It is also important to bear in mind that the director will have the support of the Taoiseach in any reasonable request to inspect records in departments.
I do not altogether understand the sensitivity about letting anybody outside the ranks of the Cabinet and the public service have any absolute right of access. If, as the Taoiseach says, questions of national security are involved, then why not specify that in the amendment rather than leave it in the hands of an individual Minister to withdraw or withhold consent when he saw fit? One could visualise — and I pick this off the top of my head — if there was a problem about disease eradication that a Minister for Agriculture might decide to withhold consent from the director for a reason of his own. You could go through every Government Department and think of a reason which a Minister would feel was sensitive. As the amendment stands, even though it is an improvement, and it is obviously suggested with the best of intentions it still weights the balance almost entirely in favour of the Minister and, by implication, I would suspect his senior civil servants to preserve anything from the unwelcome eyes of the director that they might see fit, including, perhaps, the nature of inadequately kept records. In other words, if a Department reckon that they are going to be identified as not having kept their records properly, then one device would be to get the Minister to refuse consent to the director.
It is very healthy to think through these things and work out what are the exceptions but, subject to those exceptions, there should be an absolute right to inspect records. This holding back, in what is otherwise a Bill which is intended to maximise access to some forms of information, of almost a veto power without qualification to the Minister concerned seems to me to attack in some way the spirit of the Bill and it is open to abuse. Unfortunately, wherever suspicious people like me see a possibility of a Bill extending beyond where it is intended to go, the history of most countries is that when the opportunity or necessity presents itself, if the power is there, it will be used. There is nothing in this proposal to say that a Minister will not be able to abuse the power given to him for his own interests, for the interests of his civil servants, or for some political or other reason.
The point the Senator is raising relates not so much to the amendment as to the section as originally drafted. What the amendment sets out to do is to add to the functions of the director the power to inspect and examine the arrangements for the preservation of departmental records. In the Bill as originally drafted, there is provision already for the power to examine records at the request of the appropriate member of the Government. We strengthened that to enable the director, if he should feel there is a particular case to examine some records with a view to satisfying himself about them, to seek to do so, and do so with the consent of the Minister. So we have two new things here. He can take an initiative to examine records with the consent of the Minister and he has a right without asking anybody to inspect and examine the arrangements for the preservation of records. Both of these are improvements on the original Bill.
What the Senator is suggesting goes beyond anything that has been contemplated or is normal in most other countries, although I am sure there are some countries the Senator could find which might be exceptional in this regard, going beyond what most people here would think was reasonable like my experience in Sweden in discovering that a journalist can come in in the morning and look at the Prime Minister's post before the Prime Minister sees it. By normal Irish standards that would be regarded as slightly eccentric but, no doubt, it is acceptable in Sweden. We have to operate reasonably in this matter.
We are not concerned here to appoint somebody who has the right to look at every current document of every Government out of some kind of curiosity. We are appointing somebody to look after the national archives to ensure that they are preserved and maintained and that they are transferred as appropriate and made accessible at the appropriate time. We are concerned to give all powers relevant to that and to set out, as the Senator suggests, to list all the cases in which there would be good reasons why this particular official whose functions are archival rather than investigative, all the cases where problems could arise without his seeing documents when one cannot envisage what they might be, it would be an impossible way to legislate.
I mentioned national security as the obvious one. There are documents that might reveal that somebody at some time had provided information to some authorities in the past that might be detrimental to his great grandchildren. There are long memories in Ireland. Indeed, the British public records office pay special attention to the release of Irish records in case somebody might be damaged by discovering that some distant ancestor had behaved in what could be regarded as an unpatriotic way a century or two later.
There are many other cases, but I do not think we can legislate by trying to imagine all the possible cases, list them and give the director power to examine everything else. What we are concerned about here is not that he should be investigating the records, but be able to satisfy himself that they are being looked after properly. I think we are going as far as is reasonable in this regard. I do not think any Minister is going to busy himself about trying to prevent an inspection of the adequacy of the conservation of records. Indeed if he attempted to do so it is a matter which the Taoiseach of the day could reasonably look at. The Senator is going beyond what is reasonable in this regard. I could not envisage how we could think of all the possible cases individually where inspection might be undesirable. What we have here enables the director to do his duty and goes considerably beyond the original terms of the Bill.
I should like to reflect on the effect of the amendment because it does change the original draft and changes it in a very welcome way. To construct a hypothetical problem — let us hope we are talking about a hypothetical problem — this legislation will be exercised in a very definite political administrative framework. I am thinking of the situation where an official in a Department speaks to the Minister of the day who, in our non-fully Devlin-implemented world, will be busy with many things, as the Taoiseach would agree. The suggestion may be made that, if you are going to allow inspection of these records, you are opening up a box from which the Lord alone knows what might come.
I lean very much towards the point being made in the spirit of Senator Ryan's amendment which is that one should repose the maximum trust in the holder of the new post to be able to have access to and inspect documents even if they are not ultimately removed, and so on. What one is doing is giving power in the national interest to the holder of the post to move beyond any administrative obstacles that might be placed in relation to access to documents. I have a feeling that, while the inspection of the arrangements goes some way, it still leaves that obstacle there. The idea that you would have a director of national archives who would be so overwhelmed with curiosity that he would want to devour every detail of the Department is a bit farfetched. I also think the holder of the post would want to defend his or her reputation and to exercise the position in a very responsible way. The general power of access and inspection, even if it falls short of the removal of documents to an appropriate location, would go further than the amendment. I made some of these points on Second Stage. I am lending my support to what I feel might be administrative obstacles and a busy Minister may be influenced by this. How is the Minister to decide unless he or she has the opportunity to assess a case that is being made by people who have much more time, who may have handled or be familiar with the nuances of a particular piece of documentation?
I welcome these amendments because I think that paragraphs (c) and (d) go a long way towards meeting the case which was being made by, for instance, the professional archivists and other people interested. Before I voice any criticism of the way in which the amendments are worded, I feel that credit should be given for the fact that representations were made to the Government to do this and they have, in fact, responded and amended the Bill in this way which does improve it.
Again, I am not sure why we do not trust the director sufficiently to let him examine the departmental records without necessarily having the consent or the request of the appropriate member of the Government. Nobody is saying that most Ministers will not behave in a proper manner, but decisions which are said to be decisions of the Minister cannot in the nature of things all go through the Minister's actual hands. While there may be only a slight danger, there is a danger that relevant records might be at least suppressed or not made available to the director through decisions which were officially decisions of the Minister but in reality were decisions of somebody along the chain of command.
Everybody is, in fact, referring to certain tensions which will exist between different people who will be involved in the whole business of preserving and keeping records. Obviously, the director will have a very clearly defined function. Civil servants will have their own attitude and view on the preservation of departmental materials. Indeed, politicians who march to another slightly different tune will have their own outlook on this matter. It strikes me that, in order to allay these tensions which could become unhealthy if not addressed, it would be useful if from time to time the different bodies who had a function in this could come together to talk about their different perceptions of how the country's interests could be served in the perservation of archival material and governmental and departmental records.
I know that the archives department of UCD has in the past put on very satisfactory courses for people involved in preserving religious records and records of their own agencies. The same could be done in relation to this Bill and this subject which we are discussing today. I recommend it as something that could, perhaps, be looked into as a way forward and a way of ensuring that the staff of the National Archives, council members, the director, civil servants and politicians could have an overview of the concerns of each of the people involved so that, in that way, whatever difficulties and tensions existed would not become unhealthy but could be met appropriately. I would put that forward as a suggestion for getting over that particular difficulty.
We are not talking here about the transfer of records and what is to be withheld from transfer. We are not talking here of the giving or not giving of access to records after 30 years. That will come in other sections where we can have an argument on the point. It is open to discussion. We are trying to deal here with a simple question of ensuring that records are preserved adequately. We have made an absolute provision that nothing can be destroyed without the consent of the director. So, if any Department want to destroy anything, they must have his consent and they can only get that consent by showing him the records. He can examine them and say: "Yes, that is useless. You can throw it out." That is not at issue.
The only thing we are dealing with here is ensuring that the manner in which records are preserved is such that they do not fall apart and the mice do not get at them. That is basically the issue. What does he need for that purpose? He needs the power to be able to inspect and examine the arrangements for the preservation of the above-mentioned records in case the method by which they are being preserved has defects from the archival point of view and the records might deteriorate in some way and when the time comes to transfer them they might no longer be legible. That is what is at issue. In certain cases it is conceivable that the director, having examined these arrangements and having seen how files are stacked or kept, the accommodations and conditions in which they are kept, might well feel that in a particular case he would need to look more closely at the documents in a box or file to see that the conditions for preservation are adequate. In those circumstances, he would ask the Minister's consent to look a little further into it to make sure the preservation is adequate and the Minister would not unreasonably withhold that for that particular purpose. That is all that is at issue. We are not talking about the other issues of transfer or access, only how to ensure that the director can adequately carry out his functions of ensuring the preservation of archives. The amendments here fulfil this.
The other issues that have been gone into come up later on and on them there can be legitimate disagreement. We are dealing only with this one issue here and I think the amendment that we have drafted now gives him considerable powers not merely to acquire Departmental records but to examine them first of all, and secondly, not merely to examine them in accordance with the Act, that is, when the question of transfer or access arises, and not merely to examine records when requested by a member of the Government, but to be able to inspect and examine the arrangements for their preservation and, even if he is unhappy with what he finds, to ask the Minister to allow him to look at the actual records themselves to make sure they are being preserved properly. These are the additions we have made, and they go very far to meet the particular requirement we are concerned about here to ensure that documents are preserved and are not by some process of neglect allowed to deteriorate. That is the net and narrow issue we are discussing at this point and the discussion is getting somewhat broader than that in anticipation, perhaps, of discussions on later sections.
Amendment agreed to.
Government amendment No. 8:
In page 5, line 51, after "Archives" to insert "and the observance of such conditions (if any) relating to such purchase donation, bequest or loan as may be accepted by the Director".
This amendment also arises from the debate here in the Seanad. The purpose of it is to ensure that there will be sufficient flexibility for the director to enter into agreements when acquiring records or documents. There may be instances where a bequest or a donation to the national archives would be subject to conditions other than restrictions on access which are dealt with in section 10 (2). For example, it might be a condition of a donation that a valuable archival collection be allowed to remain in local custody and the director should have the power to make such an arrangement. This amendment enables us to take account of such conditions other than conditions relating to access.
Amendment agreed to.
Government amendment No. 9:
In page 6, between lines 17 and 18, to insert the following:
"(1) such functions in relation to management of records as may from time to time be approved by the Taoiseach.".
This amendment is designed to broaden the functions of the director so as to acknowledge formally in the legislation that he will have a role in relation to the development of a records management system. Indeed, it is considered that the director or the director designate — I shall come to that distinction in a moment — should be consulted from the very start when regulations are being drafted under section 18 to establish an effective records management system. I say director designate because we have already taken steps to initiate the competition for the appointment of a director and it is possible that that competition might produce a result before this legislation is passed in both Houses. If that happened he would be director designate until the legislation is passed. He would be getting on with some of his work in anticipation of the legislation being passed. That is what is involved in this amendment. The establishment of such systems would involve consultations with all Government Departments so that various options can be teased out. My own Department and the Department of the Public Service are essentially involved in this process and the advice of the director would be invaluable. This does extend his functions significantly in an important and valuable way.
Perhaps this is an appropriate time to raise the question of the training of the civil servants who will have responsibility in the various Departments for records management. The Department of Archives in UCD is, of course, the only such department in any Irish university, North or South. It is particularly well equipped to provide training courses in records management for the civil servants who will actually be handling this material which will eventually reach the National Archives. Perhaps the Taoiseach might give me a response to the educational resource that is available to facilitate the operation of the Bill when passed.
This is an amendment which I welcome and which was necessarily sought in order to enlarge the functions of the director and to enable a certain degree of flexibility in the functions of the director. Like Senator Hillery, while I have no particular commitment as to where such training should take place it obviously is important that the civil servants who are dealing with archives should receive training. It is a very specialised situation. Anybody who has been in and out of Civil Service Departments must see the way in which files are kept. In some cases the conditions under which some files are kept would be far removed from what would be regarded as desirable for archival purposes. In each Department there is a need for someone who has full training and who would understand and keep an eye on what is being done throughout the Department with regard to the perservation of records.
On Second Stage we were given the assurance that many of these points would be addressed to the question of retraining and the provision of additional skills. We also had the much more important assurance that the public service involvement would not prevail in relation to the provision of adequate staff for the achievement of the purposes of the Bill. I want to add the obvious interrogative that follows from the Second Stage assurance on to the questions that have been put already.
Largely because I was a bit contentious a few moments ago, I would like to say, because it needs to be said, that the Government amendments are most welcome by and large. They are obviously a very genuine attempt to respond to points raised. I share the concern of my colleague that the question of archives management can get lost. Big organisations are strange things. My best education on that was being in a small provincial art gallery on one occasion and watching the caretaking staff decide where the paintings were to be hung and which would suit where because the thing was so large and so scattered. I wish we would stop talking in terms of files. A huge amount of what we are talking about will be stored in a way other than on paper. The management of information that is stored other than on paper requires certain attention to things such as humidity and to many other things which can escape the notice of junior individuals who may not really understand the significance of what they are dealing with or the damage they are doing. The question of training and care will have to be addressed.
I take the points made very seriously indeed. I cannot help feeling from my knowledge in the past of the way documents are kept both inside and outside the public service that much needs to be done if documents are to be preserved adequately. It is not just, as Senator Ryan said, a question of files. There are other types of records the preservation of which may require techniques less obvious than those involved in preserving a file. We are all capable of seeing if a file is being properly looked after or whether it has been left with the edges hanging out and falling off, with bits of the sentences dropping into the dust. While we can observe that, we do not all have the same confidence when it comes to other areas, photographic, micro-photographic and so on. It will require additional skills in Departments to do this. Section 18 (4) states: that the Minister for the Public Service, after consultation with the director, may make regulations for the proper maintenance and preservation of departmental records and also fix standards in relation to the copying of them by photographic, microphotographic or other processes. These regulations will play an important part in ensuring a new and adequate standard of preservation of records in Departments before they ever reach the National Archives. That will require initial training for some of the officers concerned. This will have to be looked at.
There is a provision in the Bill that decisions about the transfer of records shall be made by an officer of at least the rank of principal in each Department subject to agreement by an officer of similar rank in the Department of the Taoiseach. That officer's function will be legislatively confined to the role of deciding on transfer. At least that is somebody pinpointed in the Department who has a specific responsibility for archives. Either that person, or that person and others in each Department, would in most instances need some assistance if they are to carry out their responsibilities properly, which will be defined by the regulation of the Minister for the Public Service for ensuring the preservation of records. That probably will involve training. It would be desirable — for obvious financial reasons I am not in a position to say that it will be done — that in each Department there should be a trained archivist for the purpose. I am afraid we are some distance away from the stage where we can envisage that. It was a dream of mine back in the seventies that we would do that. I am afraid we have gone backwards in terms of having resources for things of that kind at this stage. However, pending the stage when we can have a trained archivist to do this for us in each Department it will be important that those who will have this function and who will be operating under the regulations made in this public service should have the necessary training. That is one of the matters I will be concerned about and the director and council can assist us by advising on what training will be necessary for this purpose.
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
Subsection (3) says:
The Director shall hold office on such terms (including remuneration) as the Taoiseach shall, with the concurrence of the Minister for the Public Service, from time to time determine.
I understand that this will not come back in the form of a statutory instrument. Could the Taoiseach indicate what these terms will be or what the general tenure of these will be?
I am not quite sure of the question. I mentioned in the Seanad on Second Stage that a director will be appointed at a similar level to the director of the National Museum and the National Library, which is a higher level than the existing equivalent post is graded at. I am not sure if that is the point being made by the Senator. The post is in the process of being advertised. I have personally approved the proposed terms of the advertisement setting out what the requirements and the desirable qualifications of the person would be. I have made some changes in the draft recently submitted to me with a view to ensuring that we draw from a wide range and that we get a suitable person. That is well in hand at present. I hope the advertisement will appear in the near future now that it has been approved.
I hope I am not in the least disrespectful to the office of Taoiseach and not least to its present incumbent, but I find the wording somewhat curious. I am not sure if it is wording that has arisen in other legislation. I am trying to think of where directors have been appointed. I think that Taoisigh, current and future, might want to protect themselves against this wording in some respects. The section states that the director shall hold office on such terms, including remuneration, as the Taoiseach shall, with the concurrence of the Minister for the Public Service from time to time determine. I take it I can presume the intention here is that within the stated purposes and practices of this Bill one could, for example, again when you have a mind like mine, construct an hypothesis where a director might be interpreting the functions and powers of this Bill in one way, a complaint might arise from a Minister to the Taoiseach and there could be a dispute about the role of the director. That might create the impression, although it is clearly not intended, of there being an element of arbitrariness in the construction of the role and practices of the director in different circumstances from time to time.
As I understand it the word "terms" means the terms of the appointment to be set out in writing at the time the person is appointed. It is a question of seeking someone, setting out in advertisement the qualifications required and then appointing somebody on terms related to those qualifications and setting out the duties. The duties are, in fact, set out in the Bill. I do not think there can be anything arbitrary about it. Like everybody else in the Civil Service people are appointed on certain terms. They hold office on those terms and as long as they carry out the terms of appointment, they cannot be interfered with and they cannot be told to do things they should not do. I am not quite sure what exactly the Senator is fearful of in this respect.
I am not interested in going back over the history of certain posts, but disputes have arisen in the past about the interpretation of the role of directors in different circumstances. I am very anxious to preclude any possibility of that. It is a little clearer now, as the Taoiseach describes it, but I would prefer a wording that made that more explicit.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
In my contribution on Second Stage my primary concern was focussed on two issues. First, there was the question of accommodation. I am glad that adequate accommodation will be provided for the National Archives. My second concern was the question of staffing. In that context I have to welcome the fact that the competition for the position of director is now under way and that the grade for that post will be higher than it has been up to the present. The staffing is a particular worry. The total permanent staff of our Public Records Office and the State Papers Office together amounts to about 30. In sharp contrast, the staff of the Public Records Office in Northern Ireland, which has about half the archival material, amounts to more than 80. The staffing level up to now has been a cause for considerable concern with the adverse consequences one would expect.
In his response to Second Stage, the Taoiseach underlined the fact that the Bill would not really be worthwhile unless there was adequate staff provided. He thought it would be ludicrous not to provide adequate staff. I entirely agree with him but, since the Taoiseach is here, I have to express a further concern. We pass legislation regularly in this House and, all too often, adequate staff are not provided for the implementation of that legislation. I have in mind, in particular, legislation as it affects local authorities. Senior officials in local authorities have expressed considerable concern to me about passing legislation without matching staff to implement the statutes as passed. The Taoiseach has underlined the fact that in the case of the director the competition is already under way. Masses of material will arrive at the National Archives within a two year period. Suitably trained archivists and support staff will be essential if the Bill is to be worthwhile.
In my Second Stage contribution I made a plea for an estimation of the staff that will be required in two years' time, I should like the Taoiseach to give us some indication of when that process will get under way. In a nutshell, I am very concerned that from time to time we pass legislation here and there is not matching staff. I hope that, in the case of this Bill, appropriate staff will be provided and that action will be taken to meet the staffing needs as rapidly as possible.
I have a passing comment but one that I think is in the process of being dispensed with. I hope it is. I saw a reference to an inquiry. There is a dreadful distinction between officer and servant which is left over from another era. This is now producing the most extraordinary anomalies in the public service where highly skilled technicians with all sorts of third level qualifications are treated as servants but junior people who are regarded as white collar workers automatically become officers. I hope this is just an anomaly which is in the process of being dispensed with.
I share the Senator's aspiration in that respect. I am not quite sure what technically is required to remove this extraordinary distinction but, whatever it is, we should get on with it. On the point made by Senator Hillery, I dealt with this on Second Stage. I must correct Senator Hillery in his loose quotation of my remarks. I did not say that not to appoint adequate staff would be ludicrous. I said not to give additional staff in certain circumstances would be to perpetrate an absurdity.
I am glad that is on the record.
I said it is obvious that steps will have to be taken here. I presume the record of the debate will be read by my colleagues the Ministers for Finance and the Public Service. That is in the context that we have an embargo situation which creates a problem of trying to find such staff resources and reducing staff elsewhere to compensate. This creates problems. It is obvious that something has to be done in this area. The question of how much has to be done can only be evaluated by the director when appointed.
His first task will be to make a realistic assessment of the minimum requirements in order to carry through the function which will be a very onerous one in the first couple of years as the flow of records comes to the National Archives over a period of two years. When we have his advice on that, it will be a matter that I will have to take up with my colleagues with a view to seeing what can be done to provide staff resources. I am not saying it will be easy. I am not saying we will necessarily arrive at a totally satisfactory solution to it, but obviously it has to be tackled. I have gone as far as I can in that regard in what I have said here already.
I might just tell the House that a search for a temporary premises adequate for some years ahead depending on reaching a stage where we can construct a purpose built building, which may obviously take some years to find the resources and some years to do the building has gone ahead very rapidly. I understand that a building has been identified amongst others already which, in the view of the acting director, would be adequate and appropriate as temporary accommodation. That was drawn to my attention yesterday. I am not saying a decision has been taken about that building, but I am relieved to know there at least one building has been identified which would be available and which, in the view of the acting director, would serve the immediate purposes for some years ahead. It may be that we will find somewhere better but at least we have got somewhere that has been identified already.
Now that we have discussed the question of the staff numbers etc., I would like to make a few remarks about their role. In doing so, I will come back to some points that were made earlier which the Taoiseach thought were slightly anticipatory. The establishment of the archives on a permanent basis and this whole service would not be a success if the staff established under this section were in any way to form a separate group who were concerned only with the archives, concerned only from time to time in dealing with responsible officers in the Department. I feel it must be part of the role of the director and the staff to infuse an idea of the importance of archives among those who are serving in the Departments, among those who are creating these particular archives.
Senator Bulbulia made the point earlier, which is a very important one, that since we will have to make arrangements for the training of those who will staff this particular Department and because it will be essential to make sure that the relation of these staff to serving staff in the public service is not one of antagonism, there would be no better way of doing this than training together those who are to be responsible for archives within the archival service and those who will be responsible amidst their responsibility for other things in the service. I would commend very much this idea of training courses in which the staff to be recruited under this section sit side by side with people who are not specialist archivists but who will have some degree of responsibility. It is very much to be commended. In being in common in these courses, in discussions that would arise in the seminar mode in such courses, this would give an extremely good start to establishing, not merely an archive, but an archival mentality throughout the whole of the public service.
I take that valuable point made by Senator Dooge. I will certainly bear it in mind. Amongst the functions of the director will be the provision of such educational services as the Taoiseach may from time to time approve so there is a provision for education which I take to include training in this respect also. In so far as training can be done jointly for those in the archive and those who will be working with them, that would be desirable. It may be, of course, that some of those people appointed if additional appointments are made as we all hope, will be people who are trained archivists. The process of inducting them into their new job would involve a somewhat different kind of approach from the kind of training required for people in other Departments. Subject to that, the point is well taken. I would also hope that over a time the system of exchanging people between the archive and Departments might develop, which would be very helpful in ensuring close liaision.
Question put and agreed to.
SECTION 7.
An Leas-Chathaoirleach
Amendments Nos. 10 and 11 are related and may be discussed together.
Government amendment No. 10:
In page 7, line 19, after "or" to insert ", if the original is no longer available,".
I accept no responsibility for amendment No. 11. We will hear about that in a minute. The purpose of amendment No. 10 is to deal with the question of ensuring that, where a copy of a document exists the original should be retained rather than the copy. As at present drafted the Bill states:
...the retention and preservation of the original or of an accurate and complete copy thereof shall suffice.
The genesis of this lay in my experience of handling files. When a fat file comes before you, nearly all of which consists of copies of the same document, you dig through it to find eventually that there are three or four documents you have to read but you have to go through such a mass that it is very hard to find the actual ones you want amongst all the copies that are made of them. I do not know why departmental files seem to take this form.
This drew to my attention the fact that a large part of archival material consists of totally superfluous copies of the same document. It seems to me that we do not want to preserve endless copies of the one letter. I, therefore, suggested in the draft that wording along these lines should be included in the Bill so that we do not have to keep everything on the file. The point has been made that, as it is drafted, there is no choice indicated between the original or a copy. It reads:
...if a copy is as good as the original...
Obviously, all things being equal, the original would be more important. Indeed, sometimes the original may have something marked on it which may not be on the copies, some notes in the margin, or something of that kind which could be significant. Therefore, the amendment is designed to ensure that the original should be retained but, if the original is not available, a copy should be retained but a whole lot of copies do not have to be kept all the same with nothing additional on them. The amendment is designed to give preference to the original over the copy, which did not emerge clearly in the original version of the Bill due, perhaps, to an oversight on my part.
I welcome the Taoiseach's amendment. I have great sympathy with him in ploughing through a file which consists largely of three or four copies of different documents. I feel that the invention of the photocopier has totally destroyed the ability of people in passing on information to others to précis that information and put it into a reasonably short form in which one can read it instead of which they produce copy after copy of extraneous documents that you have to plough through to decide what is relevant and what is not. It is not necessary for archival purposes to keep 16 copies of each document.
I am sorry that Senator Ross is not present to move his amendment. I feel the substance of his amendment is important in that, while I know we are stating here that the copy is only to be kept if the original is not available, it is not so much where an individual document is concerned but where a question would arise of whether you should keep filmed, taped or computerised versions of records, or whether you should keep the original. It would be well to give the director a sort of consulting function with regard to the decision about originals and copies.
When we say "if the original is available" it might arise that the originals might disappear in the course of time if the director were not there to make sure that the originals were kept. It could mean that, if the director is not involved, decisions could be taken to destroy primary documentation in serial form if filmed, taped or computerised versions of it exist. One of the difficulties is that, without the training that we all hope will take place, at present there is not a great deal of expertise throughout the Civil Service about archival matters. The director of the archives and his staff are probably the only people who will be familiar with these various techniques and practices which have been evolved internationally to deal with the difficult issues of whether one should keep original paper documents, or whether one should keep computerised records. It would be a good idea to include an amendment of the type put down by Senator Ross that the director should have a function in deciding about copies and originals.
It would be imposing an impossible burden on the director if, in respect of every file in the public service, he had to examine it to see whether 15 copies of the letter should or should not be kept. That would not be realistic. I am not saying that there is not a point behind the amendment, and perhaps we should reflect a little further on it, but to bring the director into vetting the destruction of every copy of every document is asking more than is humanly reasonable.
In section 18 there are provisions for regulations to be made fixing standards in relation to the copying of this record and so on. It is made clear there that original records copied in accordance with the regulations of subsection (4) may be destroyed only on the written authorisation of the director. I must say that on reflection, I am not too sure that I can reconcile that concept with their being destroyed with his written authorisation with what is said here and that you reserve the original rather than a copy. Maybe we need to match these two sections a little more closely.
We will reflect further on this to see if there is a point to which we need to have regard. A point that struck me in listening to the debate and thinking about it is that sometimes there may well be something written on a copy which is of some significance.
That becomes an original.
I would like to be sure that would then become an original. There are a couple of points which perhaps we should look at between now and Report Stage. But I would be reluctant to impose on the director the task of looking at every copy of every document before destroying it.
I would not envisage that happening at all, that he would have to look at every file where there were 15 copies or whatever, but simply where a decision had to arise as to whether one was going to preserve the original or preserve the copy. Only where the kind of thing that the Taoiseach has just been talking about arises, where perhaps the copy might have interesting glosses on it — if I might use that phrase — whereas the original had not, it would only be in that situation that the director would be consulted perhaps. I do not mean that the director would have to look at every file to decide whether 15 copies were to be kept or not. Certainly that would be quite impossible.
The Taoiseach has suggested that he will take another look at these sections and I would be grateful if he would do so between this and Report Stage, just to see if there might be situations where the director should be consulted about whether you keep, say, computerised copies or whether you keep paper originals or whatever.
I think there is another point that might well be considered in regard to this section. I have a slight worry here that where it refers to "the retention and preservation of the original or of an accurate and complete copy thereof" we are talking of course, as we said earlier, not only of paper but of archival material in other forms. My worry in regard to this is that what is one person's accurate and complete copy might not be another person's and that we could well have a director whose standards in regard to what constitutes an accurate and complete copy would fall below that of the archival profession generally, and perhaps below the standard which would be set by his predecessor or his successor. While, of course, the Taoiseach has the power to get rid of a director — he would get rid of him if he were sinning seriously in this respect — in the meantime material might well be lost. In regard to non-literary material, there is a real difficulty here that, for example, electronic copying is in a sense never complete. With the advance of technology — and we have seen this in regard to the reprocessing of gramophone records of an historic character — we are able to copy far more accurately. There is the danger here that at a stage at which the technology in regard to one form of archive had not developed sufficiently, a director might in the circumstances of the day say: "That is as accurate and complete a copy as can be accomplished under today's technology," and an original might be lost which could indeed not only be copied for archival purposes but copied so that it could be deposited in other archives or diffused. I think the Taoiseach would be very well advised to examine the full import of the language at the end of section 7 (1).
I accept that. I think it means looking also at section 18. It does lay down provisions about the fixing of standards in relation to the copying of such records and also provides, as I have said, that originals may be destroyed on the written authorisation of the director which does not seem to quite fit with what we have here. I think we should reflect further with the points raised here.
I would like to support what Senator Dooge has said. We are inclined to think that the technology of today is the last word. Technology moves quite quickly. For instance, to my knowledge, within the records of RTE there are recordings on large discs of tape and the position is rapidly developing that the machines to play these tapes will no longer exist and they will need to be transferred to other sorts of tapes. Much of this material is, in fact, archival material of interviews with predecessors of the Taoiseach, and various matters of this nature. This kind of material can be lost because of quick moves in technology and any director would have to make sure, if he certifies that this kind of record is a proper copy, that it will not pass out of existence because the machines to reproduce it pass out of existence, and so on.
Amendment agreed to.
Amendment No. 11 not moved.
Section 7, as amended, agreed to.
SECTION 8.
Acting Chairman
Amendment No. 12. Amendment No. 1 to amendment No. 13 and amendments Nos. 14, 15, 17, 18, 19, 20, and 21 and amendment No. 2 to amendment No. 22 are consequential on amendment No. 12 and all may be discussed together. If amendment No. 12 falls all of the consequential amendments cannot be moved.
I move amendment No. 12:
In page 8, subsection (1), line 10, to delete "30" and substitute "10".
I had visions of myself repeating the argument over and over again. However, I know the procedures would work out a way. To suggest that I had a very strong feeling about whether it was 30 or ten would be very dishonest on my part. I do have a view about access to public records anyway, in terms of freedom of information, but that is a matter for a different occasion and it is also a matter where questions of what should be available and what access should be granted and should not, would be very different from this. I said on Second Stage that I am not entirely happy with picking 30 years simply because it is what other people use, or because it is what has been accepted and what has been the practice. A number like that should have a reason and it seems to me that, given the pace of change in society today that 30, 40 or 50 years ago things changed at a relatively leisurely pace. There was not a huge accumulation of official public records. There were not so many issues which came and went and ceased to be as society changed and adjusted very rapidly and there were arguments for a longer time scale. Given the rapidity of access to information today, given the increasing appetite of large sections of the public for more and more information in the various ways in which information is now disseminated throughout the world, it seems that 30 years is a figure which is excessively cautious. The exemptions that are made — and they are extremely broad — and the possibilities for withholding information seem to present an opportunity to reduce the time before which records may be made available.
I contemplated an amendment which would establish a maximum of 30 years and leave the actual assignment of a period of time to the Taoiseach of the day, but just as an initial endeavour. We may perhaps come back to this on Report Stage. I suggest that ten years is a reasonable period of time given the exemptions that are already available, given the fact that sensitive and other information need not be made available and that there will be procedures to ensure that that does not happen. It seems to me that 30 years is excessively cautious and a ten year period would get us away from the heat of immediate controversy and enable us to look at things with a little less passion. We are not talking about a period immediately after a civil war or anything like that. We are talking about a period of history where we have a fairly stable democracy — some of us might feel it is too stable — and by this I mean a fairly stable democracy with fairly stable institutions, responsible media and an increasingly interested population and a young population, interested very often in aspects that are quite immediate to us but which are outside their experience. Therefore, I am moving this long series of amendments with a view largely to inviting the Taoiseach to explain why 30 years should be the figure and say more than just that it is the appropriate one that other people use.
I must confess to sharing some of the mystification concerning the absence of an upper limit that Senator Ryan has referred to already and also the choice of the term 30 years. There are several different combinations that one could think about. For example, there are arguments such as why should you need a document that was less than 30 years old. What unique character has it that makes it administratively so indispensable? Why not say something like "not less than 30 years but not more than 50 years" so that you could create a clearance period? Maybe there are a couple of these documents that lie within a particular slot in time and once these are dealt with then this requirement goes. The problem about this in many ways is in what circumstances will this power be exercised? I am bothered about it, I must say. Are the justifications for this administrative? Or, are there some peculiar circumstances within this time period which are not being addressed? I will be equally interested in the Taoiseach's reply.
I would like to endorse what the other speakers have been saying because I made the point at Second Stage about this legislation that there seems to be no good reason why we should have this upper limit of 30 years. I see no reason why some papers should not be published almost immediately. There is a convention, probably established by the British, that it is for reasons of protecting reputations and so on and saving embarrassment. There are many documents that do not relate to the protection of reputations or saving embarrassment and are nevertheless very interesting. I do not see why the papers could not be almost immediately — or as near as possible to immediately — made available. I accept the upper limit for certain sensitive papers but certainly this blanket rule to cover all for 30 years I find a little difficult to accept.
As a person who is intensely curious I can see it is interesting to get one's hands on material during the course of one's lifetime and for most of us here our expectation of having access to certain documents about, shall we say, the lifetime of this Government is, by the law of averages, to some extent diminished. We must suffer a certain impatience in that regard. Really, it is largely about a matter of balance. We talked earlier about the necessity to have confidence between all of the people involved in extrapolating and ensuring that this archival material was kept. I am concerned that if we had a lower time limit that we might destroy this confidence that will be painfully built up, I am sure, even with the maximum of goodwill of all concerned. My understanding is that in the United States, when attempts were made to have a lower limit, there was difficulty attached to this so that, on balance, I think by far the safest thing to do is to keep the 30 year limit in operation even though those of us who would sincerely love to have access to information must suffer a certain impatience with the result.
First of all, I share the Senator's curiosity. One of the self-imposed disciplines upon somebody in my position is not to go looking back and inquiring into past records that might be interesting to read but which it would be contrary to one's duty to examine unless there was a compelling reason of current administrative or official duties that required one to look back. I must say, given my own age and with a reasonable expectation of remaining in my present office for some years to come, the 30 year rule does suggest that any memoirs I may publish would have to be rewritten in my late nineties on the basis of full access to records., I am not too sure if I will be able to do this.
We are all for longevity.
I can understand people's concern about that, but the fact is that the 30 year rule is there for a reason. There is an essential arbitrariness in choosing any period, not 29 not 31 but 30. The fact is that over 20 years ago the World Congress of Archivists settled on the 30 year rule throughout the world and asked archivists to promote this aim in their own administrations because the periods tended to be longer than that. It applies not just in Britain, but in France, Australia, Canada, the Federal Republic of Germany and, indeed, to EC archives. It has become established because it is a kind off compromise between, on the one hand, the desire to ensure that civil servants and Ministers in carrying out their functions would not be inhibited in what they write by concern that what they write might appear and in some way be a source of embarrassment to them later in their administrative or political life or indeed even after it. If you were to carry that to extremes, given that a civil servant aged 25 may be writing something or even a politician of 25 — a Minister is usually a little older than that — and that people can live into their nineties, you will have a 70 or 80 year rule, if you are going to say that nothing can be published until everybody who has written it was dead. That would be so restrictive that it would be unacceptable.
At the other extreme, if you shorten the period too much, you are certainly going to inhibit people's willingness to commit things to paper. Even at 30 years there is some inhibition involved. There are many documents that I see from time to time, which may involve reports on meetings or discussions with people, for example, and I could readily visualise their publication in 30 years would not merely be embarrassing but quite dangerous for people in some cases. We are not in quite such a position of stable democracy as Senator Ryan represents in a State in which members of our security forces are murdered, unfortunately, from time to time and we are part of an island in which violence exists on an appalling and tragic scale. Life is more complex than that. Some compromise has to be reached and the 30 year rule has emerged as the archival standard internationally and we are applying it. I would not agree with departing from it upwards and I do not think I could justify departing from it downwards. I think therefore it should remain.
Some of the points raised in the debate suggest that some Senators are not adverting to some aspects of this Bill. First of all, with regard to earlier access, there is a provision in section 10 (6) which deals with earlier access, within the 30 years. There is a provision in section 8 (7) dealing with earlier transfer of documents in the archives within 30 years. Moreover, in so far as there may be concern that in respect of transferred access there might be undue caution in handing documents over or making them accessible after 30 years, there is a new section which we will be coming to in a few minutes which gives extra safeguards to ensure that the five-year review of transferred access will have a check on it and will not be simply arbitrarily at the behest of officials in the Department. We have provision for earlier access and transfer, for checks on cases where the transfer or access is later than 30 years. Thirty years seems on the whole to be optimum even though any figure is, of its nature, arbitrary.
Amendment, by leave, withdrawn.
Government amendment No. 13:
In page 8, to delete lines 16 to 20, and substitute the following subsection:
"(2) An officer of a Department of State authorised for the purpose of this subsection may certify that for stated reasons a particular Departmental record or class of records which is more than 30 years old and is specified in the certificate is in regular use in that Department or is required in connection with its administration and that its transfer to the National Archives would seriously interfere with the administration of that Department."
The provisions of subsection (2) have been a matter of concern because they seem capable of being used more widely than was intended. The provision is necessary because there are many Departments that have records more than 30 years old which are in continuous use, the Companies Registration Office, the Land Registry Office and so on. There is a real reason for it. Careful consideration has been given to how the subsection might be improved and the amendment now being put forward will help considerably. It will first of all oblige an authorised officer of a Department to state the grounds on which any particular record or class of record has been retained. That decision cannot now be taken arbitrarily or without an indication of a reason for it. The grounds have to be stated. In other words, there is a further criterion introduced in that a record may not be retained unless its transfer would seriously interfere with the administration of a Department. This would remove the temptation to retain files on the ground that they may be required occasionally. It is a temptation that would be quite strong because there are many files which you could easily visualise you might want some time: something might turn up on that. Unless they are files which are required with such frequency that to have to go to the archives for them each time would seriously interfere with the administration of the Department, they should be transferred. They can, if the occasion arises, be brought back again if they are needed. We have tried to tighten up here, to establish very strong criteria to ensure the retention of files on the grounds that they are being currently needed would not be abused.
There is also a new provision which we will come to in amendment No. 22 which provides a cross-check on the operation of this, so that it is not simply a question of it being left totally to the decision of an official in the Department concerned. It is like a power of review and a power of overruling resting with an official of the Department of the Taoiseach, which offers a further cross-check. This amendment is a useful one which will offer quite strong safeguards against the abuse of a requirement which is inherently necessary but which is also capable of being abused.
I have stated that the amendment is welcome in so far as it answers criticisms that were made at an earlier stage. Would it not be one logical step further on to require the permission of an authorised official within the Department of the Taoiseach to be granted, because while this does answer, in so far as it makes the point that grounds have to be stated, it equally tightens it up in a very welcome way rather than have a variation of interpretation across Departments. In so far as a new competence and interest will be developing within the Department of the Taoiseach, might it not be an idea to extend it even a little bit further and require permission from an authorised officer within the Department of the Taoiseach?
I very much welcome this amendment because I feel that the original subsection (1) was far too sweeping and indeed we all suffer from this disease of looking at files and saying: "Ah well, that might be needed at some stage," but they can sit there for long enough and we would never go near them. This is important. I notice that in subsection (11) the Taoiseach may prescribe a particular class of records where certificates granted under subsections (2) or (4) may relate. As regards this and as regards generally the powers within the Bill to make regulations and to prescribe things and so on, would the Taoiseach be able to tell us when he envisages such regulations will be made? I do not mean obviously to the day, but in rough terms, at any rate. How soon can we look forward to seeing regulations under the Bill, when enacted, made and these various powers being used? They are important powers and they will certainly back up the position of the director and the position of the National Archives but they are powers which will need to be put into use as soon as possible.
It is difficult to answer that question because there are different functions which it falls to the Taoiseach to undertake. In the particular case mentioned, which is subsection (11) of section 8, the Taoiseach may, by order, prescribe a particular class or classes of records in relation to which a certificate granted may relate and may by order revoke an order. In that particular case, I envisage what would happen would be that, as Departments face up to having to transfer records, in certain cases they will find that there are classes of records which are needed for continuous use, such as the files of the Companies Office, for example. They would then come to the Taoiseach's Department and say: "We cannot make an order for every single company file. Obviously, the current files on companies that we have are companies that still exist. We want that class of record to be kept". If that comes up then it is something in regard to which an order has to be made. In relation to that subsection, I visualise that during the next two years there will be a succession of requests to be considered for things to be acceptably exempted by class rather than by individual file. In other cases, the order is to be made because of rather different circumstances and over rather different time scales. I could not give a general answer to the question. Obviously, many of the orders will have to be made during this two-year period in order to get the whole procedure off the ground.
On the other point made by Senator Higgins, it would be possible to do what he suggests. I think on the whole the balance is against it. I have brought in this cross-check against the possibility of abuse but I think you are imposing an unduly onerous burden on the Department of the Taoiseach if they have to be engaged in examining every individual case where files are retained or required to be retained for longer than the specified period.
I think what is needed is a power of intervention, a power of cross-check, a power to act in any case where, for example, the director may say: "I think that Department are really being a bit ridiculous. They are holding on to records because they might need them occasionally: they are not actually in continuous use." That should be looked at. You want the power of intervention there to overrule a Department which is acting against the spirit of the Bill. To actually require every single record to be inspected not only by the officer in the Department but also by the Taoiseach's Department is going further than is necessary. If the director is dissatisfied with the failure of any Department in transferring files it is a matter he would raise and that would bring into effect the operation of this amendment and the Taoiseach's Department would intervene to check as to whether in fact there is an abuse and if so, to ensure that it is terminated. That is an adequate check and if you go too far you really are creating an extraordinarily cumbersome bureaucratic procedure with so many civil servants looking at so many files that you are going to clog up the whole system. The amendment we have now is adequate for the purpose given, that the director will be in a position to draw attention to any case where he thinks the Department are abusing this power.
Amendment agreed to.
Amendment No. 1 to amendment No. 13 not moved.
Amendments Nos. 14 and 15 not moved.
I move amendment No. 16:
In page 8, subsection (4), line 38, to delete paragraph (a).
I would be pushing the limits of my limited optimism to suggest that this Bill could go through without this subsection. Nevertheless, this concept of what is "contrary to the public interest" is a particularly unhappy choice of phrase because many people would suspect that what we politicians or, indeed most of the public service, would describe as being contrary to the public interest would be those things in which the public would have the greatest interest. If there is to be a catch-all phrase, which is perhaps necessary, there are obvious areas. The Taoiseach mentioned the one of national security. It was a pity he brought in the question of Northern Ireland, and so on. It suggested a reflection on my concern which I do not think he intended.
Not at all. I am sorry, Senator. I meant no reflection whatever.
I should not have taken offence in that case. I really did not take offence because I did not think it was intended. On the question of security we could argue forever about what represented a threat to national security. Some of the things I have seen portrayed as threats to national security are pushing it a little too far. Nevertheless, we accept that there is a threat to national security. There are other issues of privacy or distress and all the things that are mentioned there. "Contrary to the public interest" is one of these phrases used regularly. I hear Government Ministers use it regularly when they are asked to give information on something for which there is not a precedent or it would not be in the public interest to do it. There is a particularly offensive perception of the public that there is a whole host of areas which the Government, the public service, and politicians know about, but which the public should not know about. Things that are to be withheld from the public should be withheld for good and clearly stated reasons which sound credible to the public, to the media and to professionals who would be interested and which are not so defined for reasons that seem appropriate to a public servant with the approval of his Minister or the Taoiseach as the case may be at a particular moment in history.
We could and we should — and if we do not make progress here I will have to try to do it myself between now and Report Stage — come up with a term which incorporates necessary protection but, at the same time, does not leave as broad and as many meanings of an expression such as "contrary to the public interest" intact. It leaves whole areas of controversy and whole areas of possible poor decision-making in the past, whole areas of perhaps inadequate advice or inadequate information being tendered at a time, whole areas being capable of being kept quiet for long periods of time because they are not in the public interest.
Unlike the Taoiseach and, indeed, the leader of the House I have not had the experience of ministerial office and do not even with limitless optimism expect to experience it in the immediate future at least. Nevertheless, I think it is a very widely used device for Ministers and for the public servants to suggest that certain things are not in the public interest. My instinct, my suspicion and, indeed, I think the experience we have all had is that when that term arises it usually means that it is something the disclosure of which would by and large by very much in the public interest but not in the interests of those required to disclose it.
Mr. M. O'Higgins
I should like to support Senator B. Ryan. I do not want to say too much about it because we should confine ourselves entirely to the terms of its potential usage within this Bill. Many examples come to my mind where arbitrary discretion and action have, in fact, been justified retrospectively when there were substantial abuses under later examination on the basis that, at the time, they purported to be in the public interest. I support him in this quest for an alternative wording. I also think in terms of legislation in general it is an anachronism now. It found its usage, I believe, in statutes at a time when you could presume an unquestioned consensus in relation to the terminology "the public interest". We are living in far too great a flux of change. The balance of social circumstances is changing all the time. As well as that, it is part of our own tolerant society that we have possibly learnt to accommodate forms of dissent. Indeed, historically the abuse of this term "public interest" has arisen where it has been invoked authoritatively or in an authoritarian way more accurately to question forms of expressed dissent.
I support Senator B. Ryan and Senator M. Higgins on this phrase. "Contrary to the public interest" is a phrase that arises considerable hackles and suspicion. While paragraphs (b) and (c) set out the main specific cases which may arise and are rightly included, there may well be need for an extra phrase which would give some sort of generality of discretion. Really the phrase "contrary to the public interest" seems to me to be the kind of reasoning that can be used to cover a multitude of non-disclosures. While I have not at the moment got an alternative phrase to suggest I would hope that between now and Report Stage the Taoiseach could try to find something a bit more restrictive than this phrase "contrary to the public interest".
I have to confess to a certain sympathy with what has been said. I am very uncertain as to how one might meet the points made. There is no doubt that there can be an all too ready inclination to use "public interest" to cover a multitude of sins of omission or commission. I suppose there must be some temptation when documents are to be published which may reveal some act of incompetence or unwisdom on the part of an official or a Government 30 years earlier, not to publish them. Given the continuity of the governmental system and the party system, I suppose you could envisage a document being published in 1988 about something that happened in 1958. The Government might be embarrassed about having it published even 30 years later for reasons of political embarrassment. It would have nothing whatever to do with the public interest.
The point in principle is well taken. The difficulty is how to deal with it. I am not sure that I can see another way of proceeding. I decided when drafting the Bill that the decision in respect of this should be a decision of the civil servant in the relevant department and not of the Minister. I am perhaps more sensitive to the danger of non-disclosure for reasons of political embarrassment, but I recognise that there might also be a temptation on the part of civil servants not to disclose something because it would reflect adversely on the Department or perhaps even on a civil servant who is still serving. While I have guarded against one danger I have not necessarily guarded against the other.
I have done my best to try to protect against a political abuse of this power of non-disclosure. Something might not be disclosed because it was political but was of genuine public interest. If it is possible to think of some other way of tackling this or some other phraseology I do not exclude that, but I have difficulties about it. Possibly other countries have found ways of doing this. The difficulty about listing cases specifically rather than using a general phrase is that it is not certain that one would think of all the cases where there would be a real, genuine reason. One thinks of the balance of a relationship with another country or agreements with other countries and things of that kind, but there will be others.
With regard to my reference to Northern Ireland — I do not know why the Senator thought I was reflecting on him but I had no intention of doing so. I am conscious of that fact because of the nature of my duties at present in a country which faces these problems of many documents, operations and communications that exist, the publication of which in 30 years' time in a country of such long memories as this could be dangerous to people. One may say that that is covered by paragraph (c) and perhaps it is, but I have an uneasy feeling that we might not think of all the possible dangers that could exist. I am not excluding some other phraseology if people would like to reflect further on it and come back with ideas. I will look at it myself and see if there is any other way of tackling it because I accept that the wording here is not tight. It is capable of abuse. If I can be convinced that any change should be made that would not itself place genuine dangers in not adverting to a possible situation I would be prepared to look at it. Perhaps we could reflect further on this on Report Stage.
Very briefly, sitting listening and trying to be reasonable I wonder would it be possible perhaps to use a word other than "contrary", or possibly a stronger word than "contrary"? I suggest using something like "seriously threaten" or some other choice of phrase like that rather than "contrary". "Contrary" seems to me to be a very weak word. Something like "seriously threaten" or "seriously endanger" might perhaps meet many of my requirements and the concerns we all share.
That is a very constructive suggestion and I will certainly look at it.
Amendment, by leave, withdrawn.
Amendments Nos. 17 and 18 not moved.
Question proposed: That section 8, as amended, stand part of the Bill."
Just before we move on, there seems to be no reference to administrative records of the Oireachtas in the provisions of the Bill. This was mentioned in some correspondence. Is there a reason for this, or am I mistaken?
The reason is that it appeared to me that it would be inappropriate for the Executive to propose in legislation that records of the Oireachtas should be published. I saw that as a possible interference with the rights of the Oireachtas. If the Oireachtas wishes access to be made available to its records then I feel such proposition should come from the Oireachtas and not from the Executive. From recollection of one particular instance, the present rules of the Oireachtas about non-disclosure of documents are extremely stringent. The rules require that certain documents should only be disclosed by an actual vote of the Oireachtas. Otherwise they can never be disclosed and there is no time limit whatever. It seems to me that for me to tell the Oireachtas what their business should be in this regard would be inappropriate and even impertinent. If Members of the Oireachtas wish on behalf of the Houses of the Oireachtas to propose that steps of this kind be taken, I am perfectly open to it. But it must be a matter for the Oireachtas rather than the Executive.
All I can say is that there are obviously many things that are kept quiet. I did not know that about the Oireachtas until the Taoiseach told me, so it is obviously a very well kept secret.
I think Senator B. Ryan gave rise to a very important point here. Why should the Oireachtas be the last secret society in the public sector? I see no reason for this at all. I think the Taoiseach has given us a clear invitation here that we should act. The only thing that this House and the other House have to consider is how we would act in this regard. I would certainly be willing to bring this matter to the Committee on Procedure and Privileges in the Seanad for a discussion there where all the groups are represented. We should do that and we should do it, if possible, before the Bill leaves this House. In that connection, I would ask in order to assist the Seanad Committee on Procedure and Privileges whether the Taoiseach would be able to make available to us a memorandum indicating how this problem is dealt with in the legislative Houses of Parliaments in other countries whose system is similar to our own. I am quite sure that in the Taoiseach's Department in the course of preparing this Bill information must become available on this point. I would ask if the Taoiseach would be prepared to have a memorandum prepared as a matter of urgency — because this Bill is well advanced — to be considered by the Committee on Procedure and Privileges in the Seanad.
I would be willing to do that and any information that we have or can obtain in the timescale involved will be made available to the Committee on Procedure and Privileges. If there is any other assistance we can give in relation to the matter in terms of the drafting of the Bill that would also be available at the request of the committee. I would be more than happy to facilitate the Oireachtas in that way.
As a member of the Committee on Procedure and Privileges I would like to support Senator Dooge's suggestion. It would be an excellent idea that the committee should discuss it. It seems to me to be the best way of handling this issue. One other piece of information which would certainly help me as a member of the committee is if we could have before us a generalised list of the classes of documents that would be affected by a lift of the secrecy rule regarding the records of the Houses of the Oireachtas. Obviously the main documents that come through the Houses of the Oireachtas and the records of the Houses themselves are in the public domain anyway, but a list of the classes of documents that are kept secretly would be a help to the members of the committee if they were considering this.
On that point, I think the Seanad might be able to get assistance from the staff of the House. I do not think we would have that information.
Question put and agreed to.
Section 9 agreed to.
SECTION 10.
Amendment Nos. 19 to 21, inclusive, not moved.
Question proposed: "That section 10 stand part of the Bill."
I would like to make one or two brief observations on section 10. Section 10 is an important section of the Bill having regard to the fact that the whole field of museums and historical groupings has increased greatly over the years. There is clearly a great public awareness in this area. Section 10 rightly makes the point that all archives with the National Archives shall be available for public inspection. That being so, it would seem to me that there could be a danger of soiling, or tearing, or damaging documents. That has to be examined carefully. We have to have proper security. That is vital. I am not talking about the security we referred to earlier. I am talking about tearing, soiling, and that sort of damage. It is very desirable that these two points be taken care of. I understand there is little, if any, facility for the repair and conservation of damaged records in either the Public Record Office or the State Paper Office. That being the case, it would seem to me that arrangements should be made to have that situation rectified. Those are my two comments on that section.
I will note the points made. The first point is covered, or at least attempted to be covered, in section 10(7) which states: "Nothing in the section should be construed as granting any right to inspect archives (or portions of them) which the Director considers to be in danger of damage through inspection by the public..." In such cases he will make copies available for inspection as soon as possible. That seemed to us to be the best way of handling the point of which, indeed, I am very conscious. If the Senator sees any way in which that can be improved upon I am quite open to it. That is intended to cover the point made by the Senator.
I have stressed that there is increasing interest in this matter. People are very interested. They like to look at things and to examine them. If we feel we can improve the situation we will certainly pass it on to the Taoiseach.
On a slightly different point on this section, perhaps an area of definition really, section 10 (1) states that all archives with the National Archives shall, subject to such regulations, and so on, be available for public inspection. Does this include public records of the type that are defined in section 2 (1) (d) which would include such things as parochial records as being archives because these records are held elsewhere than in the Public Record Office under an Act repealed by this Bill. This is the phrase that has been used to define matters such as parochial records. I understand that they would not be in the custody of the National Archives. I wonder if this phrase "with the National Archives" includes the records that are held under section 2 (1) (d)?
In section 22 (2) the records the Senator speaks of are referred to. It says:
Not withstanding subsection (1) all archives which were formerly public records held at the commencement of this section elsewhere than in the Public Record Office of Ireland under an Act mentioned in that subsection shall remain in the custody in which they are at such commencement: provided that the Taoiseach, after consultation with the Director—
(i) may make regulations relating to the manner in which such archives are to be kept and for their proper custody...
It does not actually say "access" but the intention is that the subsection to which the Senator referred would cover those records. I will examine that to ensure that the two are linked up properly together.
I understand the intention is that section 10 (1) should cover them. It is right that it should do so, but as they will remain specifically under section 22 in the custody in which they already are, they are records of a sort that should be open to public inspection. Perhaps the Taoiseach will look at this between now and Report Stage to make sure that it is included.
My understanding is that the phrase "all archives with tne National Archives" covers them.
It does not have to be in the custody of the National Archives.
I will confirm that on Report Stage.
Question put and agreed to
SECTION 11.
Amendment No. 1 to amendment 22 and amendment No. 22 may be discussed together. Amendment No. 2 to amendment No. 22 has already been discussed with amendment No. 12 and cannot be moved.
Government amendment No. 22:
In page 11, before section 11, to insert the following section:
11. —Notwithstanding section 8 (6) or 10 (5), an authorised officer of the Department of the Taoiseach may determine whether Departmental records, which are more than 30 years old and continue to be retained in a Department or, if transferred to the National Archives, continue to be withheld from public inspection, should be transferred to the National Archives to be made available for public inspection or, if already with the National Archives, should be made available for public inspection.
This is an amendment to which I have already made reference in anticipation earlier in the debate which introduces the new provision for a role for the office of the Department of the Taoiseach in respect of the transfer and availability for inspection of records in the National Archives so that decisions about their non-transfer or non-availability for inspection will no longer be solely determined by an officer of the Department concerned. It is a cross check. It is a useful one. I have already referred to it and justified it on several occasions so I will not dwell on it any longer at present subject to Senators having points they wish to raise.
Amendment agreed to.
I move amendment No. 1 to amendment No. 22:
In the second line, after "may" to insert "after consultation with the Director".
This again may reflect my lack of experience in these things from the inside, but it appears to me, given the matters we discussed earlier with regard to access for inspection purposes to ensure the record was being kept and preserved properly, a bit anomalous that the decisions about disclosure should rest entirely with the public service. The underlying suggestion that somehow the director must be kept at arms' length from questions in relation to the public interest or dangers to individuals, or breach of statutory duties, seems to me to retain the real power within that body which has the greatest interest. I say this simply as a reflection of what I myself think I would be tempted to do in similar circumstances. I am not attempting to suggest that other people are somehow less worthy than myself.
Given the normal inertia of large bodies and the normal inclination not to create further embarrassment and trouble for oneself, it seems to me it would be very useful to ensure that, where a decision to retain a record was being made by an officer of the Department of the Taoiseach, he should at least be required to consult with the director. It would introduce an element of external reference. I thought about putting in "with the consent of the director" but that would entirely undermine the objectives of retaining the records. It is reasonable to suggest that the director ought to be consulted about decisions like that. It at least ensures that the procedures are taken reasonably seriously and that it is not done in a cursory or an arbitrary fashion by some harassed civil servant who has about six other things on his agenda that day. The obligation or the requirement of consulting the director would ensure that the matter would be handled with some deliberation and with some concern and care.
I have difficulty in seeing how this would work in practice. We are talking of records which to use the same phrase suggested by the Senator, would be seriously damaging to the public interest and constituting a breach of statutory duty or good faith because supplied in confidence and causing distress or danger to living persons. What kind of consultation could take place with the officer of the Department concerned? We would have to say to the director: "Come and have a look here; see all these boxes. They all contain things which are seriously damaging to the public interest." You cannot say more than that. The director obviously is not in a position to go into in any detail as to how the public interest would be seriously damaged, or what living person would be damaged, or put in danger, or caused distress.
I cannot see how the proposed amendment would help. It would be a gesture in a certain direction but in practice consultation could only be of the most perfunctory kind saying: "All these files in this room are ones which come under these headings. I am telling you this now and I am consulting you". What could the director say other than: "I do not know what is in the boxes I cannot tell you whether it is right or not." I cannot see how the director could have a function in the matter if, as I believe to be the case, it would be inappropriate that he should be given the powers of inspection.
While I understand the thrust of what the Senator is saying, I do not think the amendment would achieve anything in a practical way, or that it would be workable in practice. You either accept that the decision as to what is seriously damaging to the public interest or involves a breach of good faith, or causes distress or danger is determined by the official of the Department who controls the record, or you do not. I do not think there are half measures in this area. You have to accept that somebody in the Department makes that decision. I have introduced a cross check so that in the instance of the director being unhappy about the quantity of material not being transferred he could say to the Taoiseach's Department: "I really think the Department are hanging on to a lot of material and it would be worth your while looking into it to see whether they really have good grounds for it." That is open to him under the mechanism I have established. I cannot see how there could be any form of serious consultation which involves excluding any inspection of or information about the nature of the contents of the documents. I do not think the Senator's amendment will get us any further in this regard. He may want to reflect further on it. I cannot see how it would help.
The Taoiseach has convinced me that my own amendment is inadequate. He has not convinced me that what he has proposed is in the least adequate. I am coming rapidly to the conclusion that the only really satisfactory way to ensure that decisions like this are taken in the spirit in which this legislation is intended is to trust the director to be involved in these decisions. It seems that he is going to be a senior State official regarded as such and of the status in terms presumably of salary and conditions of some very senior civil servant. Therefore, it seems that the only solution is to actually trust the director and, perhaps, leave these decisions to the director in consultation with the officials referred to here who would also have access to the information. It seems that anything else would really leave the decisions not with people who cannot be trusted, but with people who have a particular perspective on matters which is not necessarily the same perspective as that of other people or the same perspective as the Taoiseach has on this issue. I will withdraw the amendment, but I will think about the issue between now and Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 2 to amendment No. 22 not moved.
Section 11, as amended, agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
Could I refer to section 12 (2) and make the point to the Taoiseach that as a member of the local authority I would like to think we could make provision for the preservation of local authority records? Can that be done in this Bill? If not, perhaps, the Minister for the Environment in his forthcoming legislation on local government reform might be able to insert some regulation which would bring about this result.
I take the Senator's point. I do not know quite how to tackle it but it should be borne in mind.
Question put and agreed to.
Sections 13 to 15, inclusive, agreed to.
SECTION 16.
Government amendment No. 23:
In page 11, line 37, to delete "in the custody of" and substitute "with".
In a sense this is a technical amendment though I think it has some utility. The words "in the custody of" could be unintentionally restrictive. They would perhaps exclude public records or archives not in the direct custody of the National Archives. The word "with" is better in that it comprehends all archives as defined in section 2 (1).
This amendment meets precisely the kind of point I was making on section 10. I would have made it again on section 16 but the amendment forestalled me. The use of the word "with" is obviously meant to include the ones under section 2 (1) (d). Therefore, the Bill is being changed in order to make sure that these ones are covered. I welcome the amendment.
Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."
This section deals with the guarding against the improper removal of records and so on which is essential. There is just one small point I would make about section 17 (1) (c) which states that "a person shall not remove archives, which at the commencement of section 22 are held elsewhere than in the Public Record Office of Ireland under an Act mentioned in subsection (1) of that section, from the place in which they are so held at such commencement."
I am sorry to harp on this but within the Church of Ireland a great many parochial and other records could be held at parish level in not very good condition. It has been found from time to time when we are trying to reorganise our own archives and our own records, that the best way to deal with this is to remove them to the custody of the Representative Church Body Library which has been developed in recent years to deal with this archival problem. It would be possible for this to be dealt with under section 22 which permits the Taoiseach to make orders to permit a transfer of this sort. I hope it will be dealt with sympathetically. I want to be sure that paragraph (c) will not mean that one has to keep records in the place of custody which, in fact, is not a suitable place where they may be attacked by damp, mice, dust or whatever else because the Bill says they must be kept in the same custody.
We have met this point, I think. This section starts: "Except as provided by law a person shall not remove archives from the National Archives." There is provision by law to meet the point the Senator is making. Section 22 (2) (a) (ii) says that where he considers it necessary for the preservation of such archives the Taoiseach, may, by order, provide for the transfer of such archives to the National Archives or, with the consent of the Council, to another archival institution or other appropriate body. That does give power to remove parochial records from where they are to another appropriate body which could be a church representative body with the consent of the council. The legal provision there governs and qualifies what is in section 17. The point has been met by the provision here.
I presume it would be possible for the Taoiseach under that paragraph in section 22 to make a kind of a class order, that he would not have to make an order in respect of consulting the council on every single record involved. A sort of a class order could be made that would allow this kind of transfer to take place because it does arise on quite a number of occasions. It is very necessary to move quite quickly to rescue records that are deteriorating rapidly.
That is a point that needs to be looked at. We have elsewhere used the words "archives" or "class of archives". The word "class" is not used in section 22. Perhaps that is something we should look at to see whether it is necessary to introduce that phraseology to meet the point the Senator is making.
Question put and agreed to.
SECTION 18.
Government amendment No. 24:
In page 12, to delete lines 34 to 40.
An Leas-Chathaoirleach
Amendment No. 24 is consequential on amendment No. 25. Amendments Nos. 24 and 25 may be taken together.
These amendments are related and arise from a point made on Second Stage about the obligations and regulations made under subsection (1) of the section. On reflection it was felt that regulations made by the Minister for the Public Service under subsection (4) should be subject to a similar requirement. That is the purpose of the amendment.
I am grateful for this extension of our powers of supervision.
Amendment agreed to.
Government amendment No. 25:
In page 13, between lines 13 and 14, to insert the following subsection:
"( ) Every regulation made under subsection (1) or (4) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".
Amendment agreed to.
Section 18, as amended, agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
I am working from memory now which is not very reliable. Under subsection (4) the Taoiseach may at any time terminate the employment of the chairman or any other member of the council. That is usually, in most legislation I have seen, at least a little bit more circumspect. It usually mentions by notice in writing or for reasons stated, or something like that. It seems rather strongly worded, given the less than controversial nature of the council and chairman. The least we could have insisted on was that the Taoiseach should notify people in writing if he is going to terminate their appointment rather than as it stands, which is rather blunt and bald. It is only a small matter. But it seems rather different from other legislation that has passed through this House in my time here.
I have no desire to encourage summary dismissals — the lifting of the phone by the Taoiseach and so on. We might run into difficulty of the opposite sort, that the loss of a letter in the post might nullify the Taoiseach's intention. I would ask the Taoiseach to look at what is the normal practice and, if he can without circumscribing himself, make any removal as gentle as possible.
Could the Taoiseach give us an indication of the role he sees for the National Archives Advisory Council? I know the terms are laid out within the section itself to advise him in the exercise of his powers under this measure and all matters released to archives in their use for the public. But from a more practical day to day point of view, how much influence, power and authority would the National Archives Advisory Council have over the whole question of the National Archives and to what extent will their advice be normally accepted? Would the Taoiseach give us an idea of the extent to which he envisages the council will be used for the future enhancement of the preservation and expension of our National Archives?
The section states:
The members of the Council shall include not less than two members of the Irish Manuscripts Commission and not less than two archivists not employed by the National Archives.
There is a strong case there for including, perhaps, a representative of the Professional Association or Archivists. The point I make is that archivists who are working within the National Archives, and archivists working outside, both subscribe to the professional standards and practice and, indeed, the enthusiasm which their professional association creates for them. Perhaps if they need not be mentioned some reference should be made to the professional association of those involved. I would support that suggestion in the sense that it creates a professional consensus where I know it to exist.
Like other speakers, I wonder in regard to the appointment of the advisory council how recognition might be given to the various local historical groups throughout the country. There is a federation of approximately 50. There are probably hundreds of ad hoc village groups and so on, doing their own thing for their own area. We all know there is great interest in this. It may be only one person perhaps the local national teacher. They are doing tremendous work and there is great interest. The Irish people recognise and appreciate their past and the fact that it can be compiled and documented for them. I am mindful of my own town where we have the Old Athlone Society. It has existed for 20 years and is keeping the past to the forefront. I am very mindful of the fact that a newspaper article, in my own local paper, recently gave a full page to memories of the past, written by a local person of my own era. He was talking about Athlone of the mid-forties. It received great interest. It was an article that was discussed at length. It brings back to me and highlights for me that there is such a fine interest in this area of our way of life. I wonder how the Taoiseach can recognise the great work that these people are doing. I would like to think that in some way it would be a national thing, it would not be a “Dublinish” or a Pale situation. I would like to think that these people who are doing such great work in this ad hoc way be recognised in this council. Perhaps the Taoiseach would think on these things when he is selecting his grouping.
I take these points, while I shall certainly look at the phraseology of the process of termination, I suspect that it would be rather standard phraseology. Senator Dooge may have a point that if one varies it one may get into trouble. I will look at it to see if there is any way in which it can be made to sound a little less abrupt.
With regard to the functions of the National Archives Advisory Council, their specific powers are laid out at different points in the Bill and they have this role to play. But beyond those specific powers there is also in section 22 the powers of submitting an annual report on the activities of the council. In between these two, in between the specific role and the submission of that report, they would obviously have the function of overseeing the developed National Archives, ensuring that it develops in a satisfactory way and are taking up with the Taoiseach of the day, not merely in the annual report, but, if necessary, during the year any matters in respect of which they feel there is reasonable dissatisfaction and concern. Any Taoiseach would take very seriously any advice coming from that source on behalf of the National Archives.
I do not think one should lay down the powers of the council in a restrictive way and seek to set them out in detail. They are brought in where there is specific reason to bring them in to advise on a particular matter. But beyond that, they should be left to offer fairly free ranging advice as and when they think proper and bring in their annual report during the year. That is subject to any views Senators may have on it. That would be my instincts in the matter.
On the question of the appointments to the council, Senator Higgins raised the question of whether they should be required by law to appoint a representative of the professional association. I will reflect on that. I think that in the ordinary way it would be somewhat surprising if at least two archivists not employed by the National Archives were not in some way representative of the association. Whether one should make such provision in the Bill I do not know. I have no strong views on that. I will reflect on it.
With regard to local groups concerned about history and the protection of our heritage and records, that is a very good point indeed. It is not merely a question of recognising their work in some way just by giving an honour. There is more than that to it. Many of those people have very valuable experience of a most relevant kind. In this instance where we are talking about a multitude of groups I do not think that you can lay down legislation that some particular person from that class has to be appointed. It would be rather difficult to do. In appointing the council I will have regard to the groups in question from whom I believe a member or members of the council could very appropriately be drawn.
Question put and agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill."
I would like to raise a question in relation to the publication of the reports. I would ask the Taoiseach to consider that not only should they be submitted but arrangements should be made for their publication. There would be widespread interest in their publication. That is the positive side of it. The negative side of it is that the publication of the report would prevent any omissions or abuses in that regard. I am also unhappy about the mechanism of laying reports before each House of the Oireachtas. Many valuable reports do not find their way into the public consciousness through that mechanism. I would urge their more general publication
I support Senator Higgins on this. What is wanted is publication in a general sense, making the thing available to the public with sufficient copies printed because, as far as I understand from the deliberations of the Marriage Breakdown Committee, only a very limited number of copies need be produced in order technically to lay the matter before the Houses of the Oireachtas. I also understand that there have been a couple of reports by the Visitors to the National Museum which were laid before the Houses of the Oireachtas, but certainly were not published. No doubt it was considered that it was contrary to the public interest to publish them, but I would not like that to arise with the council for National Archives and I would like a definite commitment to the fact that it would be published in the sense of plenty of copies of the report being made available and the public should be encouraged to take an interest in it.
I would just like to support the last two speakers. I believe myself that the reports should be published and my understanding is that until the shortage of staff halted such publication in the past, reports were published. I think it is important to remember that they are a vital reference source for scholars. I feel strongly that provision for publication should be built into the measure.
I had in mind not only specialist educational purposes but also public education towards the importance of what we are all at in this Bill.
I do not disagree at all with publication and I am happy to give an assurance that the reports will be published. I understand, however, that it is not the practice in any Act of the Oireachtas to refer to publication and that the formulation here is the one which occurs in Acts and I would be hesitant about breaking that curious tradition whatever the reason for it.
We urge the Taoiseach to make that innovation.
If I was as radical as that, it would not be that I would hesitate to launch upon it. There is apparently some inhibition on doing that, possibly in some way because of respect for the Oireachtas. I do not know. I am perfectly willing to say that I would ensure that the reports will be published.
Question put and agreed to.
Sections 21 to 24, inclusive, agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."
We have come to the last section. This is not precisely on the section but I would like to express on my own behalf and, I am sure on behalf of other Senators, our appreciation of the way in which the Taoiseach has handled the Committee Stage of this Bill and his openness to the suggestions the Senators have made. It has really been a pleasure to have a Committee Stage discussion of this type when we can feel that when we make a suggestion which may be useful it will actually be put into effect. I would just like to express my own gratitude in that regard.
I absolutely support that.
Questions put and agreed to.
SCHEDULE.
Question proposed: "That the Schedule be the Schedule to the Bill".
There are a few points that arise on the Schedule. One of them, of course, we have decided to handle, that is the question of the inclusion of the Houses of the Oireachtas. But there are two other bodies whose absence can be noted here. They probably arise because of their peculiar nature. One of them is the Omsbudsman and the other is the Adoption Board. It is important in this regard to distinguish between two classes of documents that are liable to be among the documents available in the office of the Omsbudsman and in the Adoption Board. There are papers which relate to individual cases considered by the Omsbudsman and individual cases considered by the Adoption Board. But I see no reason why papers which pass between a Minister and the Adoption Board should not reach the light of day.
We have in this House, down through the years, at intervals discussed the question of the revision of the adoption laws. I was involved in one of these exercises. One could detect that there were very serious differences of opinion, in regard to the amendment of the law, between the Minister of the day and the Adoption Board. I am not suggesting that this has occurred in regard necessarily to recent cases, nor am I suggesting any desire to pry into that within the period of 30 years, but I see absolutely no reason why the general administration of the Office of the Omsbudsman, the general relationship between that office and the Minister for the Public Service, or any other Minister, should not be covered by this Bill. I feel the same is true with regard to the Adoption Board. It would be quite easy. It could not really be done just by scheduling. I think simply to schedule these two bodies would create too much difficulty. It may be that consideration could be given to a section dealing with these two cases which would make the division between the papers relating to individual cases, which quite properly might be left protected, and to the general operation.
The third point that arises on the Schedule is the manner of the order in which the Schedule appears. I am not quite sure what protocol is being followed here but I suspect that it is the protocol of the Book of Estimates. It starts with the Office of the President and it goes on to the Office of Taoiseach. They leave the very important Departments of Finance and the Public Service, and lesser Departments, further down the way. But it does seem to me that while that might have been a convenient way of listing in the drafting, for the sake of the general public, for the sake of anyone who looks at our Bills, we might, perhaps, put the Office of President first and afterwards put the others in alphabetical order.
I strongly support Senator Dooge in his suggestion for the inclusion of these two bodies. I only make the point that in relation to the journal which now exists, which makes a comparative study of the Office of Omsbudsman, there are many contributions dealing with the evolution in the history of that office. I can see very valuable research on the history of public administration and on the history of the innovation, that the creation of the office created, being impeded should we not seek to accommodate the point made by Senator Dooge.
I, too, support Senator Dooge very much on this. I know there may be some difficulty about just scheduling them but, after all, they would also be subject to the savers which were included in section 8 and this could be covered where it would be a breach of good faith on the grounds that they contain information supplied in confidence or contain information about individuals. Therefore, the confidential and individual information included in the records of the Adoption Board could very readily be protected. However with regard to the communications between the Minister and the Adoption Board and the general records of the Adoption Board, it would be of help to have them included in the Schedule or dealt with in some other way.
The one series of bodies that are not mentioned here at all — and I think the Taoiseach referred to this on Second Stage — are the courts. I understand there are reasons why that should be so but I suppose of all the bodies in the country the background to why courts arrived at a decision will probably be more relevant in the future than in respect of any other area of State activity and as precedents established in the legal area have a life which far exceeds 30 years or may have a life which far exceeds 30 years. I understand that there are probably constitutional difficulties there as to who owns the papers. Are they State papers or what category of papers are they? It is an omission which requires careful consideration, recognising, of course, the separation of the Judiciary and the Executive, which is enshrined in our Constitution.
I would support Senator O'Leary in what he is saying and in this case we should be willing to take the discomfort of addressing this intersection about the question of what is the Legislature and Judiciary, in so far as some of these judgments will in time be important dimensions to social history.
In reply to the last point my understanding is that this is covered in the Bill and I hope I am not wrong. Section 1 (2) (b) deals with this as I understand it. Paragraph (a) says "a scheduled body" means a body, institution, office, commission or committee referred to in the Schedule to this Act. Paragraph (b) says that in this Bill references to a Department of State include, where appropriate, references to a court. Paragraph (c) (ii) says: "in relation to a court, as a reference to the Minister for Justice." It seems to me, subject to contrary advice, that the court is included in any constitutional difficulty.
The question is whether the documents are court records or private papers.
I see. My understanding is that all court records are included but my understanding and the law could be two different things. Let me come back to the Senator on this on Report Stage if there is any difficulty about it. On the point about alphabetical order, one could do that all right. Senator Dooge thinks it is important. We could start with the President and put things in alphabetical order. I see no diriment impediment to that procedure. On the question of the Adoption Board and the Ombudsman, it is a little more difficult. The problem here is that, if they are included in some way in the section, quite irrationally, no matter how you delimit what papers would be made available and how carefully you exclude individual complaints, individual records, or individual documents, the fact that they are included in the Bill could give rise to disquiet even if there were no grounds for it whatever. We are very concerned that nothing is done that could even irrationally make people fearful in regard to procedures of the Adoption Board or that in the early stages in the life of the Ombudsman's office anything should be done that could irrationally make people worry about that.
One of the points made about correspondence between Departments and the board, which is a very good point, is covered because that correspondence will be amongst the records in the Department. Correspondence will be published in the ordinary way so that would come out anyway. I take Senator Dooge's point. From a policy point of view that correspondence could be of very considerable historical importance. The only thing missing then are the actual records of the administrative working of the two boards. At this stage rather than risk any loss of confidence in the confidentiality of the procedures of the two bodies, it is not worthwhile putting a special provision in just for those administrative records. Perhaps at some time in the future that could be looked at. I would be hesitant about doing it lest this be understood at this point.
Question put and agreed to.
Title agreed to.
Bill reported with amendments.
An Leas-Chathaoirleach
Next Stage?
It is unlikely that this Bill will be reached next week. Indeed the Taoiseach has kindly undertaken to look at a number of matters. Perhaps we could order it for tomorrow week in case everything is ready and could be gone ahead with on that day. The likelihood is that it will be at a later date that it will be discussed.
Report Stage ordered for Thursday, 11 July 1985.
May I thank the House very sincerely for the very constructive debate we have had here on Second Stage and Committee Stage? It has been extremely helpful. We went to some trouble in drafting the Bill. I knew, no matter what care we took, there would be many defects to be remedied. It will be a much better Bill by the time it has gone through this House. Whether any work has been left for the other House to do is another question.