Vol. 790 No. 1
1. Deputy Micheál Martin asked the Taoiseach if a programme of law reform has been agreed arising out of recommendations made by the Law Reform Commission as outlined in his Department's Strategy Statement; and if he will make a statement on the matter. [49724/12]
The Law Reform Commission has initiated a comprehensive consultation process in order to develop proposals for its fourth programme of law reform. Following this consultation the commission intends to bring its proposals for the fourth programme to the Attorney General for her views early this year. I will then submit a draft programme to the Government for approval, as required by the Law Reform Commission Act 1975.
The statement of strategy for the Department of the Taoiseach commits it to drawing up a programme of law reform arising from the recommendations of the Law Reform Commission. How does the Department prioritise the legislation that is to be brought before the House? For example, the Personal Insolvency Bill 2012 took many months to prepare and bring before the House and it is only now coming to some form of realisation after almost two years of preparation. The Minister for Justice and Equality recently asked the commission to review the legislation covering bullying, including the Non-Fatal Offences against the Person Act 1997, in light of the need to legislate for cyberbullying and other issues that, unfortunately, are now frequently manifesting themselves. In devising this programme of law reform, will additional resources be allocated to the Minister for Justice and Equality or the Office of the Attorney General to ensure the fulfilment of the programme and drafting of legislation? Does the Government intend to review how judges are appointed in light of the commission's recommendation in that regard?
The consultation process for the fourth programme began in October 2012. The commission posted a general notice on its website and invited submissions for consideration from various groups. The president of the commission sent out letters in October to a wide range of public bodies and non-governmental organisations inviting submissions on the fourth programme and it also wrote to the Chairman of the Joint Committee on Justice, Defence and Equality in this regard. Since 2000 it has been the practice for the commission to discuss the programme for law reform with the joint committee. In November the commission placed an advertisement concerning the fourth programme in two journals that have a wide circulation among the legal profession, namely, the Law Society Gazette and the Bar Review.
The commission's annual conference for 2012, which was held on 11 December, focused on the development of the fourth programme. The conference was addressed by speakers from Ireland and abroad and covered a wide social and economic setting for the development of the new programme, as well as areas of law which the commission might consider to have included. The commission plans to hold further public seminars early this year, including a seminar in NUI Galway on 27 February.
The commission will also liaise with the consultative committee, and a note on that has been circulated. The consultative committee has been in place since 1998 to assist in the commission's consultation with the Attorney General under section 4 of the 1975 Act in the preparation of law reform programmes. The consultative committee includes representatives of the Office of the Attorney General, the Bar Council, Departments, the Law Reform Commission and the Law Society. The commission will liaise with the committee in parallel with that consultation process.
The commission has sufficient staff to meet its demands. Staff are assigned to each of the commission's three functions, namely, law reform, access to legislation and administration. The commission has reformed and restructured all of its processes to ensure each function has adequate staffing resources and that they are deployed to deliver the best results for citizens and the State. The staff allocated to the law reform function comprise the director of research and six legal researchers. These staff are currently completing the final elements of the commission's third programme of law reform, which should be concluded by the middle of this year. They are also beginning the initial scoping of the fourth programme.
Four staff are allocated to the access to legislation function and, following the restructuring of that area, they comprise the project manager, assistant project manager and two legal researchers. The access to legislation team produces and maintains the legislation directory for Acts and statutory instruments, responsibility for which was assigned to the commission by a Government decision in 2007. The registration directory for Acts is complete from 1922 to date and is kept current. In 2011 the commission commenced production on a legislation directory of statutory instruments, which is complete from 2000 to date. The commission is currently examining how it might extend the legislation directory to statutory instruments preceding 2000. This team also produces and maintains the classified list of Acts in force twice each year. The sixth revision was published on the commission's website in December 2012. In addition to this classified list of Acts, a classified list of statutory instruments in force has also been prepared and is being reviewed by Departments. Once that is published the list of statutory instruments will be kept up to date by the access to legislation team. It also produces and maintains a list of revised Acts, over 130 of which are on the website.
I am not aware of any intention to change the structure of appointments for members of the Judiciary. These applications are vetted by the Judicial Appointments Advisory Board under the chairmanship of the President of the High Court and presented to the Attorney General for consideration by the Minister for Justice and Equality.
Deputy Martin mentioned another issue which has momentarily slipped my mind. That process is under way and when the consultation has concluded the proposals will go to the Attorney General for Government approval of the programme.
My question pertained to resources for the Departments. One of the issues arising is that while many recommendations will come forward their implementation through legislation could take a long time unless additional resources are allocated to the relevant offices, particularly in the Department of Justice and Equality in respect of cyberbullying and the Office of the Attorney General.
The Taoiseach indicated that the manner in which judges are selected will not change. Is that over the lifetime of this Government? The Chief Justice and others have made compelling arguments for the need to review fundamentally the way in which we appoint judges to ensure transparency and reflect changing public perceptions. Since the general election we are supposed to be moving into a different era in terms of political and administrative reform. Such reform should cover the way in which we appoint judges to address any perceptions that would otherwise apply.
I have been examining the way in which legislation is produced for the Oireachtas. For many years Governments have published lists of legislation which they hoped to publish during Oireachtas sessions. Over the last couple of years these lists have come under pressure from troika requirements because the country happens to be in a programme. This has put additional pressure both on the Departments preparing the legislation and on those in the Attorney General's office who have to put the legislation into shape in terms of drafting it. We need to investigate the way in which legislation is prepared, in terms of its remit and spectrum, as it goes through the circle of Departments.
Perhaps if there was consultation in the beginning with expert draftsmen in the Office of the Attorney General, legislation could take the short circuit before arriving there. The staff there are very experienced and could point out what needs to be done with regard to the issue rather than have people working very hard on areas that might not be a priority for the legislation envisaged. It might be better if we were to ask ourselves what legislation we want to have enacted before the end of the year, rather than stick to the old method which had a list of ten or 20 pieces of legislation and we were happy to get 18 or so of them published.
I agree that the process of how legislation is prepared needs to be examined. The Deputy is aware that once the heads of a Bill are approved, they go to the relevant Oireachtas committee for the views of the political process. This has been helpful. However, there is a bottleneck with legislation in that when it all comes in from the different Departments, it must go through the channel of the Office of the Attorney General. This puts enormous pressure on the people who must deal with this complex legislation. There may be a way of streamlining that process somewhat, but it may be necessary to look at the issue of the staff available here. The Deputy knows, it is not easy to get such staff as expert drafters require experience. I am interested in looking at the issue in that context.
A number of pieces of legislation are being prepared to deal with the courts, the Court Service and the Judiciary. The process by which members of the Judiciary are appointed may be due for focus under some of that legislation, but I cannot say it is because I have not seen the detail of what is proposed. However, I would be happy for that issue to come up later as part of the overall work of the Minister for Justice and Equality, which has an exceptional range, because of the need for legislation in that area. Legislation in this whole area is an issue we could discuss in the House with a view to achieving better results for the exceptional efforts made by personnel in Departments and in the Office of the Attorney General. Their work may be disjointed somewhat and if there was initial consultation between the experts, that might short-circuit quite a deal of the work. I intend to speak to the Attorney General about this.
I wish to raise the issue of sentencing. The Taoiseach will know that the Law Reform Commission published a report on sentencing in early 2012 and that last week there was an extraordinary public reaction to a decision by a judge with regard to sentencing in the context of sexual offences. I commend that judge on the speed with which he rectified that decision. I particularly commend the victim, Fiona Doyle, on her great fortitude, courage, tenacity and honesty.
This case and others like it show up the inconsistency in sentencing. Will the new programme of law reform include measures, such as the introduction of sentencing guidelines, to ensure consistency? Could we have a sentencing guideline council to provide monitoring of this area or could we have a permanent court of appeal to deal with some of these matters? Will any of these issues be part of the law reform measures the Government is considering?
It is not my place to comment on any individual case that has been determined by a court. The clarification given by the judge involved in the case mentioned by the Deputy was very welcome. I had intended to meet the victim in the case, Mrs. Doyle. I have great admiration for her courage, which sends out the message that people who go through that horrific process should not be afraid to come forward and have their story told.
I do not know yet whether sentencing guidelines will be included as part of the process by the Law Reform Commission because the public consultation process is only under way. The president of the commission has put the details of the consultation process up on the website, has advertised in two of the legal journals and has written to many NGOs. I can confirm that the Minister for Justice and Equality has established a group to carry out a strategic review of penal policy, which will include the issue of sentencing policy. I expect that group will report later this year.
I welcome the Taoiseach's announcement of a strategic review of penal policy and that this will include sentencing policy. I commend again the issue of the need for consistency so that justice is done and is seen to be done. I do not necessarily seek a response now, but I urge the Taoiseach to ensure that the suggestion for a sentencing guidelines council and a permanent court of appeal will be included in the considerations.
I do not expect the Taoiseach to comment on individual cases, but as the Taoiseach said in response to a question I asked previously on this issue, we need others who are victims of crime, particularly these heinous, hidden crimes of a sexual nature, to have the confidence to come forward. The Taoiseach made a good case in appealing to people not to be put off that. We need consistency in sentencing so people know that not only will they have their case heard, but they will get justice in order to build that type of confidence.
Not only must justice be done in these cases, but it must be seen to be done. We can reflect on the Deputy's suggestion for a sentencing council. Currently there is an appeal process from one court to the next. It is not a question of putting in place something that may cause even further backlogs in the judicial system. The growth of delays in the court process is part of what the Minister is attempting to deal with now and Members are very welcome to give their views on the range of legislation dealing with the courts, the courts system and the operation of the courts as it progresses. I will ask the Minister to reflect on the Deputy's suggestion for a sentencing council. Obviously, the strategic review group set up by the Minister will reflect on that also. The group expects to report later this year.
2. Deputy Micheál Martin asked the Taoiseach the number of Freedom of information requests received in his Department in 2012; the number refused and the number granted; and if he will make a statement on the matter. [50871/12]
3. Deputy Gerry Adams asked the Taoiseach the total number of freedom of information requests his Department has received to date in 2012; the number granted and the number refused; the total fees that have been charged in processing these applications including search and retrieval fees; and if he will make a statement on the matter. [55214/12]
I propose to take Questions Nos. 2 and 3 together.
My Department received 153 FOI requests in 2012. Of the 153 requests received, 97 were granted or part-granted, 14 were refused, in 15 cases no records existed, 18 requests were withdrawn and there are nine requests ongoing. The Department applied €3,918.96 in charges to FOI requests made in 2012. Of this, €1,750.57 related to search, retrieval and photocopying charges.
As I have stated before, the statutory framework relating to FOI requests keeps the decision-making process and the operation of this at arm's length from the political head of the Department. Therefore, I never see these requests when they come in.
I put it to the Taoiseach that the strategy of the Government since it came into office has been the antithesis of everything it said before the election, in terms of transparency and the provision of information in a timely manner to Deputies and the public at large. We have repeatedly had to use the freedom of information process to garner information on a whole range of Government decisions.
That information could easily have been provided in response to parliamentary questions, but the Government chose not to do so. On many occasions I have asked the Taoiseach and the Tánaiste during Leaders' Questions whether they will publish documentation on a particular issue and furnish information to Members of the House, but the answer has invariably been "No."
I would like to mention a range of issues in respect of which it took us nearly one year to find out what was really going on behind the scenes. I refer to what happened when we asked for details of the advice Ministers received before Government decisions were taken on a range of issues. In the case of the primary care centre debacle, for example, it is worth reflecting on the fact that we would not have found out the truth about the decisions made by the Minister for Health, Deputy James Reilly, in the Department of Health if freedom of information requests had not been made by Members of this House and journalists. That revealed the chaotic manner in which the Minister, at the eleventh hour, had added primary care centres in his constituency without any reference to the advice of departmental officials. It took us nearly nine months to gain access to the advice received by the Minister for Finance before the Government decided to raid pension funds to secure €500 million for its so-called "jobs initiative". We found out that the Minister for Social Protection and others had advised against the decision to raid the pensions of ordinary people. We could not get any information on the pros and cons of that decision until we used the freedom of information mechanisms to do so.
In the light of the horsemeat saga and debacle of the last couple of weeks, I have asked for correspondence between the Food Safety Authority of Ireland, the Department of Health and the Department of Agriculture, Food and the Marine to be published and furnished. The drip-drip nature of the process means we have not yet received that documentation and there is no transparency. The same applies to the technical paper on the bank debt that the Taoiseach told me 18 months ago was being negotiated with the troika. I do not know whether that paper is available. When I asked the Taoiseach previously to state whether it was, he smiled at me and indicated that it really was not. We sought information on these issues and the Taoiseach's discussions with the President of the European Council, Mr. Van Rompuy, through the freedom of information process, but again we were denied it. The same happened in the case of the discussions on corporation tax.
In many instances, when we have submitted freedom of information requests on claims made by the Taoiseach about certain matters and issues, in order to allow us to check the evidence for these claims, the Department of the Taoiseach has fought the release of such information and we have not received it all. I will ask a basic question about the reform of the freedom of information legislation which, apparently, is under way. We have been waiting for it for quite some time. In the light of the clampdown on the release of meaningful information to Members, can the Taoiseach give a clear instruction to his Ministers to be accountable to the House? He should demand that they provide total and comprehensive information on issues in response to requests made by Members and spokespeople, particularly through the parliamentary questions process. The degree to which it has tightened up on information, by using the freedom of information facility as a way of preventing people from getting at the truth, is a severe indictment of the Government which seems to hope that by forestalling the release of information, the issue of concern will have passed by and will no longer be the dominant centre-stage issue by the time the truth gets out. A change of culture on the part of the Taoiseach and his Ministers, whereby they provide information for us in a much more timely manner, should be a fundamental part of any reform of the freedom of information regime.
Perhaps the issue the Deputy is raising relates more to the accuracy or succinctness of the questions tabled for parliamentary reply in the first place. In the vast majority of questions Ministers are asked to make statements on individual issues. As a general rule, Ministers are anxious to supply information that should be public knowledge. The changes made in 2003 increased the exemption period for Cabinet records from five years to ten, protected communications between Ministers on matters relating to Government business, protected documents relating to parliamentary questions, tribunals and international relations, and introduced fees for freedom of information applications. The Minister for Public Expenditure and Reform has discussed the legislative proposals and the drafting of the Bill by the Office of the Chief Parliamentary Counsel with the Joint Committee on Finance, Public Expenditure and Reform. I expect that a Bill to deal with this issue will be published during this session.
The Deputy will know from his own experience that Ministers never see the freedom of information requests that come into their Departments. I suppose they will see them if they ask for them specifically. I told my officials in the Department of the Taoiseach to put all of the requests on the website in order that everybody would see what was being requested. I have noted a tendency among some members of the media. A charge is levied when a freedom of information request is received. The emerging trend is for a long list of questions to be submitted as part of a single request. As they might be of relevance to various sections of Departments, it can take a significant amount of time to deal with them.
In 2011 Deputy Micheál Martin submitted a request relating to the briefing material prepared in advance of the European Council meeting of March 2011, including the form of words used by President Van Rompuy. That request was part-granted. Following an internal review, two further documents were released with minor redactions. The Deputy appealed that decision to the Information Commissioner but later withdrew the appeal. A request was received in June 2012 seeking all documentation held by the Department on the banking guarantee. That was part-granted on 10 August. The volume of records involved necessitated an extension of time. More recently, a request was received on 25 September seeking all documentation held by the Department on home care medical supplies. That was part-granted and answered on time.
The Bill that the Minister intends to introduce during this session will bring certain public financial bodies, including the NTMA, the NAMA, the NPRF and the NDFA, within the jurisdiction of the Freedom of Information Acts, subject, in particular, to the maintenance of strict confidentiality on their engagements with their commercial counterparts; for example, in securing external private finance for the State. It is not proposed to bring other banks under the legislation as they do not have policy or regulatory functions such as those held by the Central Bank. It is a case of not wanting to keep information from Members of the Oireachtas or the public. As far as I am aware, the freedom of information legislation is operating reasonably well within the current constraints. The Minister intends to change the legislation to make it more accessible, open, transparent and flexible. I do not have a great objection to Ministers making available as much information as they deem appropriate to the nature of the questions asked by Deputies. Obviously, it takes time to get some of the information together. It depends on the nature of the request. When the new Bill is introduced, we can have a rational discussion on the most effective way of providing information for the public through parliamentary questions. The Deputy will recall a famous comment - it arose from tribunal proceedings - about the need to ask the right question. God knows all Deputies, particularly Opposition Deputies, have had recourse to the parliamentary question as a weapon during the years when raising issues of concern to them and the public.
The point I am making is that the real emphasis of the Government should be on reducing the need for Members of the House to have to use freedom of information requests in the first place. Freedom of information legislation is used as a delaying tactic by those who want to prevent information from getting out. When the pension fund raid happened, for example, we raised the matter during Leaders' Questions and asked parliamentary questions to try to get details of the advice the Minister for Finance had received from the Minister for Social Protection and generally.
It would have taken very little time to produce that answer. If there was true transparency and a genuine desire to give us information, it could have been given. However, months had to go by before we found out the truth, namely, the advice from the Minister for Social Protection was negative in regard to that pension raid, which netted €500 million for the Government and which was a penalty on workers and their pensions, to which they had contributed over the years.
The reason the Taoiseach and the Minister did not give the information is that they did not want the public to find out at that particular time. That is the point. It is the same with the primary care centres. After more information had come out via The Irish Times under freedom of information, I asked the Tánaiste on Leaders' Questions whether he could agree, at that stage, to publish all documentation in regard to the primary care centres. Of course, I got the same kind of equivocal, almost disingenuous, response along the lines of "I have no problem with that", but it never got out and no one ever published anything in regard to it. Again, it took months before the real truth came out about how the Minister, Deputy Reilly, almost an hour before the Cabinet met, slipped in Swords and Balbriggan.
It is a deliberate ploy. The Government is not being forthcoming and is not being transparent at all. This week, it was Reuters that told us there was some problem with the promissory note discussions with the European Central Bank and that the ECB had rejected a Government proposition. We have been asking in the House for 18 months what is the specific Government proposal that is being put and we have been trying to find out generally what is going on but we do not get answers. Were it not for Reuters, I do not believe we would have had the Minister, Deputy Varadkar, telling us on "The Week in Politics" about what happened last week in regard to the proposition the Government put to the ECB which the ECB did not accept. We found out via Reuters exactly what was going on.
The point I am making is that, while the extension of freedom of information legislation and the inclusion of new bodies is welcome, the culture needs to change. This is particularly the case in terms of the Government and Ministers providing a maximum amount of information to Members of the House, not the bare minimum and not by kicking it into freedom of information and hoping that, by the time it eventually comes out, the heat will have gone out of the situation and they can carry on with the next issue. The real focus and emphasis should be on reducing the need for Members to have to use freedom of information to get basic information about policy decisions.
I thank the Deputy for that. Let me assure him there is no attempt to deny the people the truth as to how the situation evolves. Let us practise what we preach here. The Deputy put a very accurate and straightforward question: "To ask the Taoiseach the number of freedom of information requests received in his Department in 2012; the number refused and the number granted; and if he will make a statement on the matter." In the same sphere, Deputy Adams wanted to know about the total fees that have been charged, including search and retrieval fees, and if I would make a statement. The information is being given as was requested in the question.
I have said to every Minister that they should talk to their Secretaries General and, in so far as the generality of the question is concerned, to answer it, and in so far as the facts or details are concerned, to answer it where that is appropriate. When the Minister comes in with the new Bill in this session, let us have a discussion about that. If the Deputy had the time to read the report of the Joint Committee on Finance, Public Expenditure and Reform of Thursday, 10 January last, he will know the committee had quite a discussion about semi-State bodies and commercial bodies dealing with the Freedom of Information Act, where the Deputies attending the committee gave their views. It is not a case of wanting to have an inferior form of parliamentary question; it is that the entire range of material can be exhausted in many cases.
I would like to think Ministers see to it that the Secretaries General provide for the accuracy of the information and the extent that is appropriate. Of course, it is a good thing that the Freedom of Information Act, which was made more restrictive in 2003, will be opened out again to make it more transparent and more accountable.
As the Taoiseach has just reminded us, the programme for Government contains commitments to restore the Freedom of Information Act to what it was before it was restricted. I presume that was a genuine effort by those who made up the Government to correct what they saw as something which was wrong. They also committed to extend the remit of the Freedom of Information Act to other public bodies, including the administrative side of the Garda Síochána, and to extend freedom of information in the Ombudsman Act to cover all statutory bodies and all bodies significantly funded from the public purse. All of that is good.
I sometimes sit here in stupefaction listening to the exchanges between the Taoiseach and the leader of Fianna Fáil that "the culture has to change" and so on. I will tell the Taoiseach of my own experience, of which I can give numerous examples. One example arose today, when I asked the criteria for fast-tracking decisions regarding necessary upgrades in the hospitals in Wexford, Carlow and Kilkenny ahead of other necessary upgrades in other hospitals. I am no wiser as to the criteria that was used. The Taoiseach went off on a solo run around Sinn Féin not wanting to see Wexford people being treated the way they should be treated, as opposed to being treated out of a pharmacy or a Portakabin, and so on. Similarly, in terms of the decisions taken around primary care centres, which, as we all know, led to the resignation of a Minister of State, our spokesperson on health - the Taoiseach knows him quite well and he is very good at his job - asked numerous questions, including in freedom of information requests. Again, we did not get any scale or clarity on any of that.
I am trying to convince the Taoiseach to see this in the way he used to see it when he was on this side of the House. I was not here, of course, but it appears to me it has not changed very much. Commitments about transparency, accountability, openness and changing the way things once were come to nothing. With regard to this entire issue, when we stand up here and ask questions in regard to the use of public funds, can we not simply get straight answers, as the Taoiseach promised to give us?
Politics is about people, essentially, and government is about making decisions. Far from my going on a rant about Sinn Féin, Deputy McDonald was beside Deputy Adams, making peculiar facial expressions about Wexford and Kilkenny, and obviously could not resist the temptation to comment on that. The point is that it is about moving things along in the interests of people. The projects to which the Deputy referred were already approved for full planning and were in the capital programme in time to move them on.
This question is about the Department of the Taoiseach, which actually publishes quite a deal of information on its own website. The minutes of the IFSC Clearing House Group, for example, are published on the website yet they do not attract any attention because they are published and, therefore, they are available for everybody. People seem to want to get a bundle of freedom of information information because there might be some gem or some piece of information that was not public and that might be spectacular in its impact-----
We have got them.
Of course.
The Minister, Deputy Reilly's late, late intervention.
That seems to be the rationale for putting in a lot of this stuff. Also on the website of the Department of the Taoiseach are the expense reports on foreign travel by the Taoiseach and Ministers of State, and reports on payments made to the Department's suppliers.
My understanding is that most complaints in regard to freedom of information relate not to the processes of obtaining information but the restrictions which apply on the information which can be released. It seems to be a matter of "Why don't you release this?" or "Why don't you release that?" We undertook in the programme for Government to change and extend the Act and to broaden it out so many of the issues raised by the Deputy and others can be dealt with.
I look forward to those discussions when we have them in the House.
I know that there is no time limit on these questions, but if we had shorter questions with shorter answers we might make more progress.
A wise observation.
4. Deputy Gerry Adams asked the Taoiseach his plans to carry out a review of the capacity of the Office of the Attorney General. [50986/12]
The Office of the Attorney General is organised into two legal areas: the advisory side, which provides legal advice, and the Office of the Parliamentary Counsel, which drafts legislation. The number of staff working in the Office of the Attorney General is regularly reviewed to ensure that there are sufficient resources available to carry out the necessary functions of the office, specifically the provision of legal advice and the drafting of legislation. If, in the context of the volume, urgency and complexity of work being sought, the senior management of the office concludes that additional resources are required, an appropriate business case is made to the Department of Public Expenditure and Reform. If the Department agrees with the case, additional staff are sanctioned and recruitment takes place.
Arising from business cases put forward in August 2011 and September 2012, seven new permanent legal staff have been authorised. One is engaged on advisory work; one, a legislative editor, assists drafters with their work; and the remaining five persons are all drafters, four of whom are already in place, with another one expected over the coming months. Further, in the context of the Croke Park agreement review mechanisms, the office regularly reviews its progress and updates its targets and objectives.
I welcome the news that additional staff have been allocated to the Attorney General's office, because the Taoiseach has said in the past that there were pressures on the office due to the demands of the EU-IMF programme. He said it in respect of necessary legislation on domestic violence and the necessary recognition of collective bargaining rights for workers, both of which are being delayed due to the pressures of the EU-IMF programme. Could the Taoiseach give us some sense of whether this remains a problem and whether the provision of new staff means that we will have legislation on these two issues or indeed on the failure thus far to provide for free GP care for those on the long-term illness scheme?
The Supreme Court judgment on the McCrystal case in respect of the children's rights referendum led to some critical comment, including some from the Taoiseach's backbenchers, about the role of the Attorney General. The Supreme Court found that the Government publications during the referendum had breached the McKenna principles and were not fair, equal, impartial or neutral. This was a very significant judgment. As the Taoiseach knows, Government spending has been raised in previous campaigns and has been a continuing cause for concern. As I understand it, the Attorney General signed off on the final working text in the Government's information booklet and website. Is that the case? Who made the decision to produce a Government booklet on the referendum rather than leave that work to the Referendum Commission? Did the Government seek advice from the Attorney General on the legality of this and has that practice been ended in light of the Supreme Court judgment?
The Attorney General of the day advises the Government appropriately in regard to any referendum. In this case the High Court gave its decision and was very clear in its judgment. The Supreme Court gave a different view shortly afterwards. The Supreme Court is the ultimate determining body for the constitutionality of our legislation, and the Government accepted that and reacted to its decision quickly. We need to discuss the question of holding referendums and what the Government can and cannot do. Elements arising from the McKenna judgment of years ago limit the process of explaining what the referendum is about. In preparing for future referendums we need to have a clear view of the steps the Government must take in introducing legislation to give effect to a Bill to hold a referendum. The process of seeking advice and guidelines from the Attorney General is important. The process by which anybody in the country has the right to appeal that to a court, and on to a higher court if necessary, always stands. This year there will certainly be one referendum, if not more.
The Constitution Convention made several decisions a couple of days ago and I await its report. The question relating to the Office of the Attorney General deals with the extent of staff there. In responding to earlier questions I spoke about the process of provision of legislation in general and that has obviously been taken into account here. There are 57 permanent and four contract administrative posts in the Office of the Attorney General, eight contract employees, four staff in the Attorney General's office and four legal researchers. A review took place and the extra staff were provided because of the current position arising from the exceptional requirement for legislation driven by troika demands to meet our programme requirements and due to pressure from different Departments and Ministers to get necessary legislation through.
One of the real challenges facing the Government is to give impact to legislation that will affect the creation of jobs, and even that gets pressurised in the bottleneck at the end. It is a case of hoping that the employment of extra staff will result in a greater throughput of Bills that will give effect to necessary legislation. It would be opportune to review how this process works in the first place in order to achieve better co-ordination and results from people who are experienced but who might be working in unconnected sectors until the end, when all the paperwork must be squeezed through the Parliamentary Counsel process. I intend to speak to the Attorney General about that, which might result in a better output.
There are two different issues here. I very much welcome the appointment of additional staff to the Attorney General's office and I hope it will mean that really important legislation on domestic violence, workers' rights to collective bargaining and free GP care for those on long-term illness scheme will come forward quite quickly and bring results. On this issue results will count. I presume, based on the Taoiseach's answer - this almost brings us back to the last question, because he never gave me a clear answer - that the Attorney General did sign off on the final wording of the text in the Government's information booklet and website. The Taoiseach should take the opportunity to say he will institute changes in how the Government interacts with the people in the course of a referendum campaign, given the Supreme Court judgment that the Government breached the McKenna principles and was not fair, equal, impartial or neutral.
I do not speak for the Supreme Court, which is the ultimate body in determining what is and is not constitutional. In this case the Government accepted the decision of the Supreme Court and acted swiftly to see that it became a reality. A short time before that, the High Court had made its view very clear that the Government had acted appropriately and followed proper procedure.
There is a requirement to deal with necessary changes to the Constitution, whether these arise from changes in competence in Europe, with regard to other issues such as a requirement for a simple referendum on universal patents, or with whatever the Government may decide following recommendations from the constitutional convention. We have already decided to have a referendum on the abolition of the Seanad. In all such cases a process must take place and the Government must reflect on how to get this process working effectively so citizens are properly and fully informed and can make their decision in the knowledge they are the ultimate arbiters and owners of Bunreacht na hÉireann, on which they alone will make decisions. It is important that the Government, which produces Bills that propose changes to the Constitution, should have a process by which all these matters can be explained properly and comprehensively to the citizens.
The McKenna judgment on referendums does not limit the capacity of Government to explain an issue; it limits its capacity to use taxpayers' money to advocate on one side or the other. There is a crucial difference. The Supreme Court made a definitive judgment regarding the Government's mishandling of the children's referendum and many questions remain to be answered in that regard. The House has not had an opportunity to hold the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, accountable in regard to what went on.
I refer to the last question which, again, required freedom of information requests and information gleaned thereby in order to discover that the Attorney General had corrected aspects of the Government material which subsequently was changed again, but we do not know how. Two Ministers, Deputies Varadkar and Fitzgerald, suggested the Attorney General had got it wrong - they dumped on her. The Minister, Deputy Varadkar, commented at the time that legal advice can be wrong. It was wrong but we found out through the freedom of information process that in at least one instance the Attorney General had given the correct advice, which was not followed.
In the context of future referendums, and in reviewing the Office of the Attorney General, would the Taoiseach consider that advice of the Attorney General, or any material produced by that office, should be published and made transparent? We could then see whether such material has been over-politicised by Ministers of the day, contrary to advice received from the Attorney General's office. Traditionally the Attorney General does not articulate publicly on matters of this kind. Today there is silence from the Office of the Attorney General in regard to the entire process leading up to the publication of material on the Government website. This is very unsatisfactory. Given this silence confidence in the Office has been undermined, inadvertently or otherwise, by two Ministers, which is not a good thing. We need to find out what happened in the lead-up to that referendum and why the issue was over-politicised and over-sold, unnecessarily.
I do not agree that all or any advice from the Office of the Attorney General should be published.
I refer just to referendums.
This has been the procedure in the House for a very long time and for very good reason. The Minister, Deputy Fitzgerald, was very upfront in dealing with the children's referendum, all the preparations and the way in which information was dispensed. When this process was challenged, legitimately, in the High Court that court gave its view. This was appealed to the Supreme Court which also gave its view, namely, that the Government was not fully in accordance with the Constitution. The Government accepted that and immediately acted accordingly.
We have spent 55 minutes on four questions tabled by two Deputies, which leaves five minutes. If this session finishes peremptorily the next tranche of 38 questions on the North, concerning extremely important issues, will be dealt with in five minutes. Something must be done to rationalise this situation. If we go to the next tranche the Taoiseach's reply will take up all the time available and there will be no time left for supplementary material in regard to the many important Northern Ireland issues. I will ensure that does not happen.
I have some relevant questions on Question No. 4 regarding the review and capacity of the Office of the Attorney General. The Taoiseach spoke on the McKenna judgment and his desire to row back on it. Is he not being opportunistic in the extreme in regard to this? As has been noted, members of the Government can argue anything they want, 24 hours a day. Nobody is stopping them, they can take to the hustings and put forward every argument in the book. However, is it not the case that what the Taoiseach wants is public funds to finance such Government spin rather than have members of Government do the same as members of the Opposition, or as citizens have the right to do - go out and argue their case?
The Deputy himself is one for spin.
How can the Taoiseach justify such a situation? I put it to him there would be great anger and resistance among civil society if he tried to do so.
Is it the case that staffing limits are having a severe effect in many areas of Government, including in the Office of the Attorney General? For example, why is it taking so long to have concrete proposals on the Taoiseach's pledge to abolish the Seanad? There should at least be an outline draft of the legislation that would be needed in this regard. Does this reflect capacity problems in the Office of the Attorney General, or is the Senators' rearguard action to try to protect that institution, which has no use or purpose, winning the day with the Taoiseach?
I never said anything about rowing back on any judgment but stated the Supreme Court would make its decision and that it is the ultimate determining body in respect of the Constitution. I accept that, as both Head of Government and as a citizen. In the case of the children's referendum, the Government immediately accepted the decision of the Supreme Court and set about implementing it. I stated it was my view that elements of the Supreme Court decision on the McKenna judgment case, which was a perfectly legitimate case to take, are very narrow and that in the case of future referenda we need to be clear that when Government proposes the holding of a referendum the process of preparing the Bill required and of conveying the information to citizens is as clear, thorough and as comprehensive as can be.
What was the last point raised by the Deputy?
The Seanad.
I have answered Deputy Martin's questions on this matter. This legislation will be published in the next session. It is practically complete and we will have a good debate on it when it comes to the House. I hope that is not too much of a rearguard action.
