Before we proceed with the amendments, I would like to remind Senators that the proposers of an amendment may close the debate on the amendment but no other Senator may speak more than once on each amendment. In addition, I want to point out that Senator Brendan Ryan's name should appear first as proposer to amendment No. 7. Amendments Nos. 1 and 2 are related and may be taken together.
National Archives Bill, 1985: Report and Final Stages.
I move amendment No. 1:
In page 5, lines 47 to 49, to delete "with the consent of or at the request of the appropriate member of the Government,".
I would like to say, first of all, that those of us who put down amendments to this Bill on various Stages are very grateful for the non-political and receptive way in which they have been taken by the Government. It is in this spirit that I put down these two amendments.
The purpose of amendment No. 1 is, as has been the trend and the emphasis in speeches throughout the Bill, to give the Director more access to the files and the records of various Departments than he had been given in the original Bill. I see no reason why the examination of departmental records should be done with the consent or at the request of a Minister. The initiative in this should come from the Director himself and not from the Department or from the Minister. This Bill has had the goodwill of Ministers and Departments and I do not doubt that goodwill from the present Government and from those who framed this Bill.
We have to realise that this Bill will be on the Statute Book for many, many years unamended. We have not had a record of many Archives Bills. What happens if there is a Minister in charge who does not have the sort of goodwill that we have at the moment? He would be able in that case to obstruct the access of a director to these departmental records whenever he wanted to.
There is an implication — and I do not believe it is deliberate — in this clause in the Bill that the Director in some way is not trustworthy, that he cannot look at departmental records without being vetted in some way by a Minister. The appointment of the Director is in the power of the Government and it is inconceivable that the Government could appoint someone who is suspect in this way. It is against the attitude of the Bill, and against the spirit of the Bill. Our amendment is a perfectly good compromise, to give the Taoiseach the power for a good reason, for certain categories, to bar the Director from seeing various records which are in the hands of the State. He would have to have good reasons and we would be talking about the security of the State and the interests of the State. Even then, according to my amendment, it would be subject to the Taoiseach's bar, but the Director could see the records with the consent of the Department concerned. I believe this is a more satisfactory amendment. It gives the safeguards to the Government in cases of national security or the interests of the public, but it does not mean that the Director is in the same position as a member of the public or as some tradesman coming to the door.
I would like to support Senator Ross's amendment to this clause of the Bill. I feel very strongly, as he does, that the consent of an appropriate member of the Government, or at his request, is an unnecessary part of the Bill. If we appoint a director in this situation, we appoint someone whom we can trust and the Director is someone whose priority is the national archives. However well intentioned Ministers of the Government may be, their priority is the running of their Department. Perhaps their priority may also be the preservation of ministerial reputation, or matters of that nature, but their priority is not the national archives. I suggest that the Director is a person properly appointed by the Government who has this priority and there is no need to include that he requires the consent or request of an appropriate member of the Government before inspection of these arrangements for preservation. I would suggest he should be left a free hand and trusted in this situation.
I second this amendment. It is precisely the same thing we talked about on Committee Stage. It is quite conceivable that there would be masses of departmental records and quite junior civil servants would have access to them, but the Director of the National Archives would need the consent of the Minister in question to have access to the same records.
We have all listened and discussed this matter, as Senator Ross said, in a very non-political and non-partisan fashion. I cannot help thinking that somewhere in the minds of those who drafted the Bill, as distinct from the Taoiseach himself whose interest in this is better known and indeed far more extensive than my own, there was an attempt to provide for the possibility that somebody might not want something to be seen for a period of time. If one cannot trust somebody with the status of the Director of the National Archives to do these things in a responsible way, responsive to the concerns and feelings of various people, then one is really to some extent undermining the whole concept of independent national archives.
The amendment Senator Ross has proposed gives the appropriate status and trust to the Director and, at the same time, enables the Taoiseach of the day to ensure that, where there are serious matters which should be withheld even from the Director of the National Archives, that can be done on the authority of the Taoiseach who has the appropriate status and authority to insist that something should not be inspected by the Director. Anything else undermines the status of the Director of the National Archives.
I have considerable sympathy for the purpose of this amendment and, indeed, for the explanation offered for it by the proposer and seconder. There is no doubt that the amendments which the Taoiseach introduced on behalf of the Government on Committee Stage have substantially improved the role and functions of the Director in this regard, because the Director does have unimpeded access for the purpose of inspecting and examining the arrangements for the preservation of departmental records. That is very important and it is a very constructive step.
Where the Taoiseach drew back or refused to accept an amendment on Committee Stage was to the same effect as this amendment, that there should be some qualification on the power of a Department to refuse consent. That is legitimate. That is reasonable because at present there is not any check or control on a refusal of consent by a Department. A Department could refuse for a variety of reasons. Clearly, there could well be reasons why it might not be felt appropriate that the Director would have access to certain departmental records. We are talking about recent departmental records, not necessarily historical documents. It could be that there were reasons of security that would be reasonable in the circumstances. But at the moment in the Bill as it stands, there is no control over the Department. Practice could vary very substantially from Department to Department or from Administration to Administration.
On Committee Stage the Taoiseach expressly made the point that he would be favourable to allowing access to departmental records, but that may not be the position in the case of a future Taoiseach and that is not a good basis on which to legislate. We have to legislate in structural terms for the future. I agree with Senator Ross. We are unlikely to see any further legislation in this area in any reasonable timespan because pressure of other business and other priorities will predominate. Therefore, we must make sure that this Bill represents the best possible model. I favour this amendment and I await the response of the Taoiseach to debate on these amendments.
In the event of the Taoiseach not being prepared to accept the amendment, then one other possible control which is a much less satisfactory one would be a requirement that when the Director reports annually, as he is required to do by section 21 of the Bill, and the Taoiseach is required to lay his reports before both Houses of the Oireachtas, the Director should specify what Departments have refused consent for what records and for what reasons. In other words, the report of the Director should deal fully with the reasons for a refusal of consent. At least that would mean there would be a greater public knowledge of what was happening in Departments. At present I would consider the amendments as reasonable and an improvement on the text of the Bill at the moment, or alternatively that another control mechanism be introduced, or at the very least that the Director be required to state expressly where a Department have refused consent to allow the Director to have access to departmental records.
I simply want to say that I am also in agreement with this amendment. It seems that its effect is to give more power, autonomy and independence to the Director of the National Archives and this is appropriate for such an important position.
The matter we are discussing relates to a particular function of the Director — a function which is, in fact, not part of the control, management, preservation, administration and so on of the national archives: it is related to this function concerning material which is not in the National Archives but which is still in the control of Government Departments for a 30 year period but where it is important that his specialised knowledge and his very particular concern for the preservation of records should be allowed to play a role in ensuring that they are properly preserved. That is the limited area we are talking about and I am not sure that it was totally clear to everybody listening to the debate. The question is, apart from his role as Director of the National Archives what function should he have to make sure that material not in the archives is preserved and nobody is letting the mice get at it. Indeed that was an experience I had early on in my married life when I was picking out some records.
We are all aware that many papers are kept in houses and offices under unsatisfactory conditions. I can recall having access many years ago — and I stress "many years ago" and cast no reflection on the present management of the institution — to material in the National Library which was kept in stacks. I was very taken aback at that time, about 30 years ago, at the way the material was left lying around and the condition it was in. All of us must be concerned that material is preserved properly. It is that function of the Director that we are talking about here, in relation to papers that are held by Departments and are not in the National Archives. The question is, how should that best be done? He must be able to inspect and examine the arrangements for the preservation of records to see how they are kept; to see what containers they are in. Are they properly preserved? Are they in damp conditions? Are they untidily kept? Is there anything about the way they are kept which would be likely, in his view, to impair the availability of these as archives when the 30 year period is up? That limited question is what we are talking about. The amendment would broaden this in a quite extraordinary way and it would change the whole character of his office to give him the right to inspect any and all papers currently in use, or any papers within the last 30 years, unless the Taoiseach personally determines that these specific records, or that category of records, are not to be available for his inspection. That seems to reverse the process around him in a way that would be extremely cumbersome. As things stand at present if he is dissatisfied with what he sees of the way records are preserved he can ask the Minister concerned to inspect them further. That Minister would not, I would hope, unreasonably withhold consent. At that point his attention would be directed to specific records so that he could then determine, in relation to them, with reasonable facility, whether it was an issue of public security or not and if there was no issue of public security he would allow the Director to examine the records more closely than the kind of general inspection which might have revealed possible defects requiring closer inspection. That is the procedure that I envisage. What is proposed would involve something enormously complex. It would involve the Taoiseach in determining forthwith in respect of all records everywhere in the public service, which files or categories of files it would be against the public interest to disclose.
We could think of tax records alone. There is an absolute guarantee to people by inspectors of tax records that nobody will see them except the Revenue authorities dealing with them. That is a well defined category. You would really have to examine all records immediately in the entire public sector and decide which ones will not be allowed to be destroyed. That simply is not practicable. It is totally unrealistic. What is realistic is that the Director should inspect and examine the arrangements. If he is not satisfied with what he sees, and feels he needs to look at files more closely there is a possibility he might see what is in them. He can apply to the Minister in that respect.
Senator Robinson made a point which I will make in a very different form. If he gets a response from the Minister which is dismissive and which gives him no good reason for being refused access I would hope that he would put in his report to the Taoiseach which will be laid before both Houses, that he examined the records in such and such Department, he was not satisfied with the inspection he was allowed, that he requested the Minister for permission to examine them more closely and the Minister did not allow him to do so and did not even purport to suggest that the records involved public security or the public interest. If there is the possibility for him to put that in his report the Minister would be slow to walk himself into that. The remedy is there.
The remedy proposed in the amendment is so extreme that it would make the entire system unworkable. It will be difficult enough in a period of two years to transfer all the records for the period from 1922 to 1955 and in that period to examine them to extract the small minority of aspects which involve the public interest under the other relative sections of the Bill and to complete the process of handing over the rest. The Taoiseach would have to be responsible for examining every piece of paper everywhere, every category of records everywhere in the public service, with a view to determining which ones the Director will not be allowed to inspect, when there is a perfectly straightforward mechanism here with a procedure which will ensure nobody will unreasonably withhold consent.
Any Minister who did not give consent and was not able to say that there was a matter of public interest or security of State involved would find himself indicted in a report put before the Dáil or Seanad. It would be walking into trouble for some Minister to withhold consent in such circumstances. The existing provisions, plus the provision that the Director shall make a report to the Taoiseach, who shall put it before the Dáil and Seanad, cover the particular problem. In most cases, I would hope, the inspection arrangements will show the Director that the system is adequate, and in any case when he looked at it more closely that permission will be given unless there is a specific issue in regard to those records of public security and public interest. I am sure this will work quite smoothly, and if it does not the Director in his report can take the necessary steps and he has the public encouragement of the Taoiseach in this debate to do so.
I fully understand the Taoiseach's point on the large volume of work that might be involved in this, but I still believe that it is an unnecessary restriction on the initiative of a man who is being appointed to look after the archives. I see the Taoiseach's point fully about Ministers being reasonable, but I do not agree that that is necessarily the case because the Taoiseach said here today that he hoped Ministers would not unreasonably refuse this sort of access. I do not share his optimism on this issue because I can think of certain cases where Ministers would not mind very much what was said in the report from the Director at the end of the year but would refuse and could be obstructionist. This section gives to a Minister a blanket power to refuse access to the Director in any case. The Taoiseach says that in the case of conflict the Director can produce a report to the Oireachtas saying what the conflict is about. The purpose of this amendment is specifically to avoid that sort of conflict, not to allow it to happen.
I am putting the question: "That the words proposed to be deleted stand".
The case was made on Committee Stage that section 7 (1) might be construed to allow the destruction of original records when copies are being made and retained. I do not accept that construction, but I propose to amend the section by inserting in it a specific reference in section 19 (3) and (4) which provide for the making of regulations by the Minister for the Public Service to deal with such matters as the copying of records with a view to disposal of originals. The House will know that under the provisions of these subsections any destruction of original records in the course of microfilming or other copying processes will be subject to the approval of the Director. Therefore, the amendment is simply clarification so that what I regard as being all right will be made absolutely clear.
I accept the reason behind the amendment but I should like to raise a technical point. The wording of the amendment may be slightly awkward because the section is being made subject to the regulations laid down in the two subsections of section 19. That requires that regulations be enacted. If they are not, what is the proper construction of section 7 (1)? Obviously, the intention is that the regulations will be enacted, but section 19 does not provide that they will be because subsection (3) merely states that the Minister for the Public Service, after consultation with the Director, may make regulations. "May" quite often means "shall" in such circumstances, and provide the subsections mean "shall" in this instance there will be no problem, provided the Minister will do it rapidly.
Even without advice it seems to me that here we are making sure that the requirements about destruction of records will be applied properly. Though the amendment refers to the subsection in section 19, it does not refer to regulations made under them — if there are no regulations the whole clause falls. Therefore, if regulations are made under the subsections, then what follows will be governed by such regulations. In that case the provisions of the amendment will stand on their own.
I move amendment No. 4:
In page 7, line 23, after "provided that", to insert" with the consent of the Director".
This amendment was dealt with on Committee Stage. The Taoiseach said then that he would give it some consideration and that it could be discussed on Report Stage. The point is similar to that in amendment Nos. 1 and 2, dealing with the preservation and destruction of copies and originals. The Director should have at least a consultant role in regard to the destruction of documents. I can foresee an argument that it would be unfair for the Director to go through every copy of every document. That is not the intention of the amendment. The intention is that when there may be a conflict in regard to the preservation or destruction of a copy the Director should decide what should be kept and what should not. This is simply because the Director, presumably, will be a person who is well versed, an expert, in the field of archives. He should be the person to make decisions. We should also consider the point of what is a copy and what is not. In that case, too, the Director should be given the power and the discretion to decide what should be retained and destroyed.
The underlying point here seems to me to be a doubt in the Senator's mind as to what exactly is a copy. Obviously, if a document is simply copied and nothing else has been written on it there is no point in keeping endless copies. Anybody with experience of Government files knows that a large part of the bulk of a file is numerous copies of the same document, usually unimportant. It would impose an impossible task on the Director if he had to examine every piece of paper, whether a copy or not. If anything has been written on a copy document which adds to it in any way, or alters it, then it is not a copy but a fresh document. The Senator's concern is also mine in this respect. In a file one might have the original and a copy and on the copy one may have written something or even used the copy for redrafting purposes, or may have written a note of some importance. I am satisfied that if anything is written on a copy it ceases to be a copy and becomes an original document. It is only when a copy is a pure copy with nothing on it at all, a carbon copy of something, that destruction will be permitted. In cases like that there is no point in the Director examining them. It is the normal process to weed them out of the file before handing them over.
The process of controlling the file while it is in use would normally be one in which at a certain time a person may say, "I will take out these copies because these are pure copies and do nothing else but clutter up the file". In those circumstances that is all that is involved. The amendment is not necessary and I do not think the consent of the Director would be appropriate. If there is any doubt what was meant by a copy I would see the point and would be concerned about it.
I am glad to hear the Taoiseach define what is meant by a copy. I am glad too that any annotations in the margins or amendments would be kept. One which springs to my mind was a document not exactly relevant in this context. What would have happened to the delightful little poem about Pangur Bán in The Irish Student and His Cat? If a document like that had been considered a copy and was worthy of destruction we would not have the delight of that lovely little piece. It is important and significant that we have defined what is a copy in the terms of this Bill.
Ba mhaith liom ceist a chur ar an Taoiseach maidir le cás na Gaeilge ins na gnóthaí seo ar fad. Táimid ag caint anseo agus tá na leasaithe seo go léir ag caint faoi dhualgais an ArdStiúrthóra do Chartlann Náisiúnta na hÉireann, agus measaimse nach féidir le duine ar bith an gnó sin a dhéanamh go hiomlán agus a chríochnú mura bhfuil eolas maith aige ar an teanga. Tuigim freisin nach féidir leis an Taoiseach geallúint a thabhairt dúinn anseo go gcuirfidh sé coinníoll ann go mbeadh eolas maith ar an teanga ag an duine a ceapfaí ina Árd-Stiúrthóir. Creidimse an té a ceapfar ina Árd-Stiúrthóir do Chartlann Náisiúnta na hÉireann——
This is not relevant on the amendment.
Tá mé ag caint ar chúram ghinearálta Ard-Stiúrthóir Chartlann Náisiúnta na hÉireann. I am speaking in general terms about the duties of the Árd-Stiúrthóir of the National Archives which this Bill is authorising in the Houses of the Oireachtas. I am convinced that a person appointed to that situation cannot discharge his duties successfully if he has not a good working knowledge of the Irish language.
I am afraid it was more relevant on Committee Stage than Report Stage.
I missed Committee Stage as I was elsewhere during the discussion. If I am out of order I shall sit down.
You are nearer out of it than in it.
Ba mhaith liom focal eile a rá. Ba mhaith liom ceist a chur ar an Taoiseach——
You are totally out of order and I will have to ask you to resume your seat.
He may be, but he is right.
Would I be in order in any other situation on this Stage of the Bill?
You could have put down a relative amendment and could have raised it on Committee Stage or on Second Stage, but you cannot raise it at this Stage.
I referred to the matter on Second Stage.
You should have followed it up with an amendment.
I was not here when the discussion on the Committee Stage took place.
Up to a few days ago you could have put down an amendment. You are still out of order.
Glacaim, ach mar a dúirt an Seanadóir McGuinness, tá an ceart agam.
Amendments Nos. 5 and 6 are related and may be discussed together.
These are drafting amendments which are required to link the certification power in subsections (2) and (4) of section 8 with subsection (11) in so far as a class or classes of departmental records may be concerned. In subsection (11) provision is made for the Taoiseach by order to prescribe a particular class or classes of records in relation to which a certificate granted under subsection (2) or (4) may relate. It is desirable to tighten the matter up, to link in these two subsections and subsection (11). Subsection (11) is linked in with them. It is purely technical.
I move amendment No. 7:
In page 8, line 42, to delete "be contrary to" and substitute "seriously damage".
We have had an interesting discussion on this. I was confused on Committee Stage when I took offence quite unnecessarily at something the Taoiseach said. I raised the question and proposed an amendment which would have deleted the paragraph in subsection (1). The Taoiseach legitimately suggested that it would be far too sweeping an amendment. I should like to refer the Taoiseach to what he said on that occasion. He said he had certain sympathy with my point. I refer to column 1406 of the Official Report of 3 July 1985. On the term "contrary to the public interest" and the suggestion that it is an extremely weak and generalised term, The Taoiseach said:
I have to confess to a certain sympathy with what has been said. I am very uncertain as to how I 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 of a Government 30 years earlier not to publish them. Given the continuity of the Government system and the party system I suppose you could envisage a document being published in 1985 or 1988 about something that happened in 1958. The Government might be embarrassed about having it published even 30 years later.
The Taoiseach was enormously in sympathy with those of us who felt that the expression "contrary to the public interest" was less than a happy choice of phrase. Senators Higgins and McGuinness supported the view for different but related reasons. I suggest to the Taoiseach that instead of deleting the entire reference to "contrary to the public interest" some form of words other than "contrary to the public interest" should be substituted, and I suggested "seriously threaten" or "seriously endanger" and I have finally come to "seriously damage". The Taoiseach very kindly responded and said that was a very constructive suggestion and that he would look at it. It is a matter of great regret to me that there is no amendment proposed by the Taoiseach on this and therefore I have no option but to produce my own reasonable amendment. There is no doubt that the same instinct that all of us have to avoid embarrassment and to minimise trouble for ourselves will give rise to a fairly generous interpretation of what is contrary to the public interest. I have no doubt that what is defined as contrary to public interest is what the public will have the greatest interest in. Therefore, as a minor improvement to this Bill and as a minor improvement to a whole concept — I find it very difficult to accept the idea of the public interest being defined by people other than the public — I suggest a stronger form of words. I have suggested to substitute "seriously damage the public interest" for "contrary to the public interest" because "contrary to the public interest" is undefinable. There would have to be evidence that publication of something would seriously damage the public interest before these virtually unlimited powers of withholding documents could be invoked.
I wish formally to second the amendment.
I have examined the point made by the Senator in the earlier debate which is a matter of concern to me. For reasons which I will give I have not gone along the road he has. I have attempted to tackle it by a somewhat different route. The problem about his suggestion is that basically the issue that must be determined is what is the public interest. Even with the Senator's amendment we must establish that before we get to the question of whether it is contrary to or seriously threatening. That is where the difficulty lies. Once it is identified, then under the existing wording it is a question simply of whether the release of certain records would be contrary to that interest. If the amendment were accepted it would be necessary to identify the public interest which is the real problem. Then with the further complication of trying to establish an undefined degree to which the public interest would be threatened you would get into an area of value judgments. There is merit in trying to keep it as far as possible in an objective area where you are trying objectively to determine the public interest.
Therefore, I do not think that the amendment would help in practice. The real difficulty is that it is simply not possible to anticipate instances arising or every specific ground where the retention of records would be genuinely required in the public interest. Nonetheless, having heard the debate the last day, I came to the conclusion that perhaps I had been directing my concern too exclusively against the possibility of material being withheld for political reasons, and the debate highlighted the possibility that records would also be held back by administrators for administrative rather than political reasons. It seems that there is a possibility in a marginal case that an administrator might feel that publication of certain records would be undesirable in what he would think would be the public interest and yet his judgment might not be totally objective if he felt the reputation of his Department or even a colleague in the Civil Service might in some way be affected.
The problem is to get a balance between these two and I was orientating myself particularly towards the danger of suppression for political reasons. I have introduced — I am anticipating but I feel it is relevant to mention it and I will come to it in a moment — the new section 11 under which in any case where an administrator certifies that something is in the public interest that decision can be overruled by the Taoiseach. It gives no fresh power politically to a politician to withhold publication, but it gives to the Leader of the Government the power to overrule an administrative decision which might have been unduly cautious. The introduction of that amendment is designed to deal as far as possible with this problem without getting into the rather subjective area of having to determine what seriously damages the public interest which in some ways could distract attention from a proper consideration of the public interest itself. Therefore, I have decided to leave the wording "be contrary to" but to include this new section 11 which we will be coming to in a few minutes.
I am very interested in the Taoiseach's contribution on this amendment and his reference to the amendment which he proposes to move which will give the Taoiseach power to override and to make available for public inspection departmental archives which are over 30 years old. It does not, however, bring us any further on to what constitutes the public interest here and it is important in this debate that we do that. It seems important that we affirm first of all that it is in the public interest that these records be available after 30 years. That is the first thing. You have got a positive view of what is in the public interest and it is in the public interest that there be access. In that case there would have to be some very strong reason indeed to change that around completely and have it "contrary to the public interest" or "seriously damaging to the public interest" which is the wording Senator Ryan would prefer to see inserted here. It would have to be seriously damaging to the public interest in order to be excluded from public access and to displace the initial view, purpose and intention of this Bill and of the Oireachtas that it is in the public interest that there be access and that there be public inspections, because of the values inherent in that and the necessity that we have access to records, learn from them, be enriched by them. They are part of the resource of the nation. It may be important that the thrust of the Bill affirms that the public interest requires access and therefore, if something is to be prevented on the grounds that it would be contrary to the public interest it could be done only if it seriously damaged or seriously endangered the public interest in some way, and that presumably would have to be established. The debate on this amendment may bring out this point. I agree with the concern expressed by Senator Ryan and the Taoiseach and I welcome the fact that the Taoiseach's amendment on this point will be moved.
The main thrust of this Bill is to show that it is in the public interest that these documents be made available after 30 years. A phrase such as "contrary to the public interest" is a rather weak phrase which is open to wide interpretation by administrators or whoever happens to be in charge of these records so as to avoid the publication of some record which may not be contrary to the public interest but contrary to the interest of the administration or the administrator personally or whoever he happens to be working with. To accept the amendment as it is to show that in order to prevent the documents from being available they must seriously endanger or damage the public interest will not damage the situation in the least. That phrase would be open to a reasonable interpretation that it must be shown that something serious is involved and not just a matter of reasonable administrative convenience. Those of us who spoke on Committee Stage emphasised that a phrase like "contrary to the public interest" is so amenable to interpretation that suits whoever is saying it, that it is not strong enough. If the person involved had to show that it was a serious matter and that it seriously damaged or endangered the public interest he would hesitate before suppressing documents under this kind of clause.
People like me sitting on the back benches in eternal opposition as independent Senators assume that when parliamentary draftsmen draft a phrase like "contrary to the public interest" the expression "public interest" is clearly understood and defined and that, therefore, it should not be the job of somebody like me to define it in legislation. Therefore, I must assume that the term "the public interest" when it is used in legislation has a precise meaning. There is no point in the Taoiseach saying that the real problem is the definition of "the public interest". If that is the problem, his draftsman and he should have found an alternative wording which was more explicit and did not leave a phrase like this open to apparently a wide variety of interpretations. The possibility of wide interpretations of the public interest is the reason I proposed to have this section removed on Committee Stage because it is far too sweeping, but in order to be reasonable I felt we should leave the concept of the public interest to be defined, as the Taoiseach said, by the circumstances of the day. As Senator Robinson quite rightly said those who are to take a decision that something generally was in the public interest to be released should not be released should have to weigh their thoughts more carefully than simply considering a word like "contrary" which, like any other word in the English language, is open to subjective interpretation just as much as "seriously damage", "seriously endanger" or "seriously threaten". Heavier emphasis must be placed on the fact that it should be only under exceptional circumstances and not for administrative convenience or for the long list of reasons we went through on Committee Stage concerning political or administrative sensitivity. We must bear in mind that it is quite conceivable that some of the documents that might be withheld could well be documents in which an officer of a Department had an interest or input when he was a junior civil servant 30 years previously. Therefore, in order to emphasise what Senator Robinson quite rightly underlined, that generally the public interest is met by documents being disclosed, the wording used where exceptions are to be made should be sufficiently strong. "Contrary" is a word which is so weak as to leave enormous room for interpretation. It is as subjective as "seriously endanger". It would not do any damage to the intentions, possibilities or issues that the Taoiseach raised. It would leave his amendment No. 9, which I welcome, quite capable of being introduced and it would, as he mentioned, improve the Bill further. To clarify the seriousness of the intention of maximising the release of documents I propose this amendment. Notwithstanding what the Taoiseach said, I am entirely unhappy with the choice of words and, therefore, feel the proposal I have made to substitute "seriously damage" for "to be contrary to" is quite moderate and a reasonable alternative.
Amendments Nos. 8, 10 and 11 are related and may be discussed together.
During the Committee Stage debate it became clear that there was some confusion over the precise meaning of the words "with the National Archives". In the light of that point, very usefully raised in the debate, I will spell out precisely what is meant by that phrase and that is the purpose of these amendments, which provide "in the custody of the National Archives or held elsewhere in accordance with this Act" rather than "with the National Archives".
In the amendment to section 17 (1), the construction of that subsection requires it to be redrafted, but it has not been substantively changed.
I would like to express my appreciation of the amendments which have been brought in by the Government as this was in response to some of the points which I and other Senators made on Committee Stage. While "with the National Archives" could have been interpreted in this way, the amendment makes the Bill clearer.
Let me ask for confirmation on a point. Is the effect of this amendment that, for example, departmental records which are more than 30 years old and are being retained in a Department because they are in fairly constant use in that Department would be open to public access as though they were held in the National Archives?
Which amendment? I am not quite sure of the Senator's point.
We are referring to the amendment which adds the words "or held elsewhere in accordance with this Act". Section 8 (2) as now amended, provides that a Department may certify that for stated reasons a particular departmental record or class of record which is more than 30 years old and 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 the Department. Do such records come within National Archives?
No, "held elsewhere in accordance with this Act" makes reference to another section's provision that documents can be in the National Archives without being specifically held in a building called the National Archives. In accordance with discussions in this House on Committee Stage we made changes to enable documents to be held elsewhere under the Act as the National Archives Documents retained in the Department for the reason the Senator mentioned would not be in the National Archives nor would they, in accordance with this Act, be held in accordance with the normal provisions of the public service.
That is not what it appears to say, as amended. We are dealing with section 10, the sideline of which is "the right to inspect archives with National Archives". It will be now amended to read, "All archives in the custody of the National Archives or held elsewhere in accordance with this Act." Archives that are held elsewhere or archives that are held in Departments, say, are in frequent use they are not going to be transferred to the National Archives.
You have to look to section 2 of the Bill which defines the archives. It refers to records held in the Public Relations Office or the State Paper Office, departmental records transferred to and accepted for preservation by the National Archives under this Act, and so on. It does not include documents not transferred for the reasons given etc.
So it would not include records held in Departments?
I welcome this clarification. I understood it to mean that since there would be a certain physical difficulty in establishing the National Archives in a particular building, this amendment clarified the position. It would not be possible that everything would be alltogether in the one place and it very clearly extended what exactly was being spoken about.
Section 14 provides that:
The deposit of specified Departmental records in any place that may from time to time be approved by the Taoiseach after consultation with the Director shall constitute a transfer to the National Archives for the purposes of this Act.
Section 23 (2) (a) provides that:
(ii) where he considers it necessary for the preservation of such archives 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.
They will still be archives under the Act. These cases should help the Seanad in drafting these particular sections.
Amendment No. 9 is the one to which I have already made an anticipatory reference, probably in a disorderly manner but not meaning to be disorderly. During Committee Stage of the debate I mentioned that I have been sensitive to the danger of non-disclosure of records for reasons of particular embarrassment, but I recognise that there might also be the temptation on the part of civil servants not to disclose something because it might reflect adversely on a Department or perhaps even on a civil servant who is still serving. I must say with respect that the provision in the Bill which requires the consent of an officer of the Department of the Taoiseach to any such decision is a strong safeguard but there is no question of an individual civil servant, who has been designated to the Department by the relevant officer, taking the decision on his own account. He would have to have the approval of the relevant officer of the Department of the Taoiseach before taking a decision of this kind to withhold a document.
To provide a further safeguard, lest in any instance over-caution by two public servants in two different Departments would lead to a document being withheld unnecessarily, I have made provision here that any such decision can be overruled by the Taoiseach who can direct that departmental records, which are more than 30 years old and which have been retained in the Department, be transferred to the National Archives and made available for public inspection. We have built in as many checks and balances of a progressive or an open character as we can, designed to guard against over-caution in publication and to ensure that there is not the least possible chance that anything will be withheld for publication without very strong reason.
I emphasise again that this provision involves the Taoiseach only in the process of overruling a decision to withhold a document. It does not give any power to him or any other politicians to withhold a document. It only gives power to disclose what may have been withheld. That is the only power that should be given.
I am a little worried about the amendment. I would have thought that in legal terms there was no difference between an officer of the Department of the Taoiseach and the Taoiseach himself, since ultimately the Taoiseach is the effective legal authority in the Department. Therefore, I do not know how much difference it makes.
If the authority now rests with the Taoiseach, will this depend on the time available to him? It is not for me to tell a Taoiseach how little time he has for talking or thinking about things, but I would have thought it would be best to leave the position that there was an authorised officer who could in turn be overruled by the Taoiseach rather than to take the position where the authorised officer of the Department of the Taoiseach, as I read it, no longer exists.
No. I am sorry that there is some confusion about this. This is notwithstanding the provisions of sections 8 (2), (4) and (6), 10 (1) (b) and 10 (5). Section 8 (4), for example, provides that:
An officer of a Department of State authorised for the purpose of this subsection may, with the consent of an officer of the Department of the Taoiseach so authorised (except in relation to records of the Department of the Taoiseach), certify, . . . .
There is no change in that. There is no diminution of the safeguards there already. The additional overriding safeguard is provided.
To pursue the other side, it would be interesting to know how the Taoiseach envisages that matters of this kind would be drawn to his attention. A case might arise where a request would be made. Would it be the director or his authorised officer who could consent? How would the Taoiseach become involved in this and perhaps seek to override and either have documents transferred or have public access to them?
It is difficult to be precise about that. Most likely the director from his knowledge of archival material in the Department and from his contacts with the Department would have some knowledge of certain material being withheld. If he has doubts about that or if his experience of the Department was such as to lead him to be concerned and lest an over-cautious view be taken, he could draw the attention of the Taoiseach to it and ask him to examine whether in that instance the view taken by the administrator had been over-cautious. The Taoiseach could then direct his attention to the files. There may be other ways in which it might happen but this is the most likely way. I think that only rarely would this power be invoked. It is useful to have a check there which the director could make use of if he were dissatisfied and, even without any concrete reason, reached a conclusion that there was a tendency to be unduly cautious in his Department, and he could ask that the matter be looked into by the Taoiseach. This is the most likely way for it to be invoked. However, I do not want to rule any other procedure out.
This is a technical drafting amendment to ensure that where originals of records are to be destroyed in accordance with regulations, their destruction is carried out in a manner which ensures that the confidentiality of the records is preserved. This is already a requirement of section 7 where the destruction of records may be authorised under that section. This deals with the case where destruction is authorised in accordance with regulations to make sure in that case also that confidentiality is preserved.
This again is a technical point. A question was raised on Committee Stage as to whether such archives were the best place to use and whether an order made under section 23(2) (a) (ii) could relate to all or part of the archival holdings in question. The purpose of the amendment is to put the matter raised in the Seanad beyond doubt.
I wonder whether I would be totally out of order if I made a comment at this point on a matter on which an amendment was not put down but which was raised. It is a question of parliamentary records. I have not put down an amendment on that because I am advised that it would not be the proper procedure, that because of Article 15.10 of the Constitution there would be difficulty in dealing with records of the Houses within the structure of the Bill and that the question of the records of the Houses would probably be dealt with under Standing Orders by the Committees on Procedure and Privileges of both Houses. I say this because I do not want anyone to think that I inadvertently overlooked the point but I thought it would be improper and now I have discovered that it would be unconstitutional to attempt to cover it in the Bill. However, I thought that if I sought permission to make this point now and drew the attention of the House to it, this House and the other House might like to make their own disposition on the matter along the general lines of the Bill, but it is entirely a matter for both Houses.
On the final Stage of the Bill I should like to compliment the Taoiseach on the way he responded to criticism of the Bill at all stages during its discussion in this House. Having a person sitting up there listening to what you say is an interesting and new experience for many of us. One has the impression most of the time that the answers are prepared irrespective of what one may have to say. The Taoiseach should advise his Ministers that now we have had the experience we might become quite addicted and expect to be taken more seriously when matters are being discussed.
Finally, the Housing (Homeless Persons) Bill, 1985 has been on the agenda for the last five months. It is liable to end up being disclosed as a public record before it is passed unless moves are made on it quickly.
Like other Senators I welcome the fact that this important Bill was discussed so constructively in the Seanad and that a number of amendments were made to it. It is obviously a Bill which must be discussed and debated in the other House and it may be some time before it is enacted.
When enacted it will require considerable administrative follow-up. For example, it requires regulations to be made both by the Taoiseach and the Minister for the Public Service. It requires to be authorised in every Department and an official in the Taoiseach's Department to work with officials authorised in every Department and it envisages the possibility of further assignments, function, and so on. It would be desirable for this House to affirm the widely shared view of the Seanad that it is most important that all of this administrative follow-through should occur without delay. I know this would be something that the Taoiseach would strongly endorse. Looking at the Bill from the point of view of the approach adopted, it requires quite a considerable administrative follow-through which we hope will happen without further delay of any kind once it has passed the Dáil.
I welcome the Senator's comments. They are very much ad rem.
Before I take the Nurses Bill, which is the next item on the agenda, I understand it is intended to break from 5.30 p.m. until 7 p.m. Is that agreed?