Oireachtas Joint and Select Committees

Tuesday, 12 November 2013

Committee on Finance, Public Expenditure and Reform: Select Sub-Committee on Public Expenditure and Reform

Freedom of Information Bill 2013: Committee Stage

4:55 pm

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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Is there a schedule for the grouping of amendments?

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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There is. The schedule has been circulated. Does the Deputy have an issue with it?

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I have a problem with the schedule as presented to us. Amendment No. 8 in my name deals with the new public body Irish Water. It is a major new semi-State company that will affect every householder in Ireland. The Minister's intention is to exclude this company from the provisions of freedom of information legislation and I tabled amendment No. 8 to deal specifically with that issue. I would like it to be discussed separately as a stand-alone amendment.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Is it agreed that amendment No. 8 will not be grouped and will be discussed as a stand-alone amendment? Agreed.

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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With the permission of the Chair, I wish to withdraw my amendments and re-enter them on Report Stage.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Is that agreed? Agreed.

SECTION 1

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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I move amendment No. 1:


In page 10, line 2, to delete “12 months” and substitute “9 months”.
The Bill, as drafted, envisages for bodies within the remit of FOI legislation a lead-in period of 12 months in coming into line with the legislation. A period of nine months should be sufficient for such bodies to be in compliance with it.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The vast majority of public bodies being brought within the remit of FOI legislation for the first time will be subject to it within six months of the enactment of the legislation. This is to allow these bodies time to make the administrative preparations required for the application of FOI legislation. The Bill allows the Minister the power to make an order to extend the preparation time for new bodies up to a maximum of 12 months before they come within the remit of the legislation. I have considered whether that period should be brought back to nine months. I have had a very lengthy engagement with a range of organisation on this issue and some have argued that they need two years. I think it is reasonable to allow virtually everybody six months and if a body can make a really coherent argument to go beyond that period, it can be given a maximum period of a further six months. To keep all organisations in support of the legislation and not include administrative provisions that they tell me they cannot meet in one or two exceptional cases, I am minded to stay with the 12 month period included in the Bill.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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I appreciate that as a general rule the period will be six months which I understand from the Minister will be adhered to in most cases. I think an additional three months would be sufficient. While I appreciate that obviously bodies have internal administrative concerns, there is a public appetite for freedom of information legislation to be reinstated and rigorous in its application. I do not imagine the Minister will agree with me, but if I had been sitting in his place and drafting the legislation, I would have included a cap of nine months.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I want it to be done as soon as is possible, but I do not want to place burdens on some that are impractical. If bodies argue the case that it will take two years, I will tell them that it must be done within one year. I will be rigorous in that regard, as I think people will accept.

Amendment put and declared lost.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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I move amendment No. 2:


In page 10, lines 5 to 8, to delete all words from and including “on” in line 5 down to and including “provisions.” in line 8 and substitute “not later than 12 months from enactment.”.
This is a timing issue and relates to section 8 which deals with the publication of information on FOI bodies. The legislation, as drafted, states:
Section 8 shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose......
I think the better option would be to put a timescale on it. My amendment proposes that section 8 become operational not later than 12 months from the date of enactment of the legislation. That would give sufficient time. It recognises the administrative realities and burdens, but nonetheless it would not leave the provision so open-ended and discretionary as to be insufficiently robust.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It was always my intention to develop publication guidelines for model publication schemes as soon as possible after enactment of the Bill. As the Deputy and committee members are aware, the concept of a publication scheme is new and will require careful attention by all public bodies subject to FOI legislation once the Bill is enacted. What might be appropriate for some Departments will differ from that for others. There will be a difference between Departments and agencies, universities, the health sector and so on. I did not include a timeframe in which all bodies would comply with the guidelines for model schemes. Having reflected on the Deputy's amendment, the timescale she is proposing is reasonable and I am prepared to accept the amendment, subject to the agreement of the Office of Parliamentary Counsel to the wording. The Deputy should, therefore, resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Section 1 agreed to.

SECTION 2

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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I move amendment No. 3:


In page 10, line 35, to delete “21 April 2008” and substitute “1 January 2005”.
This amendment relates to the retrospective element of the legislation. The Minister has suggested bodies go back to 21 April 2008.

I understand that it would be unreasonable to go back as far as 2003 because it would impose an administrative burden. The choice of 2008, even from the public's perspective, is a bad one. In 2007 and 2008, many aspects of public administration went terribly wrong. There are still outstanding questions in respect of many of those matters. I fully concede that my choice of date, namely, 1 January 2005, could be portrayed as arbitrary also but it would not be unreasonable to ask that there be retrospection to that date. It would be wise to ensure this, not least because many things that were happening in the course of 2007 and 2008 were so much in the public mind, for good reason. The last thing we want to do in this legislation is to raise hackles anywhere or a suspicion that 2008 was chosen for the purpose of non-disclosure of any matters in the public interest. I am not suggesting it was chosen for this reason.

5:05 pm

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I approached this on the basis that there would have to be an element of retrospection, but not one that presented such a burden for organisations that they simply could not cope. Obviously, the maintenance of records dating back to the date suggested presents a real issue. There is nothing particularly scientific about the date of April 2008 other than that it was the tenth anniversary of the initial date, April 1998. I am open to persuasion if it is felt there is a case for specifying an earlier year. I am not sure what the reason would be. If the Deputy has a view that she wants to submit to me, she may do so. The date was picked for practicality; there is no scientific reason for it.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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I accept that entirely and I understand the use of the tenth anniversary. I am simply saying that, on the basis of public perception, 2008 is the wrong year. My suggestion of 2005 is arbitrary.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It is too far back in that it presents a burden.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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Perhaps I could submit an amendment on Report Stage that would move the date to mid-2007 or 2006.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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That is fine.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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The year 2008 would represent an unhappy coincidence.

Amendment, by leave, withdrawn.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendments Nos. 4, 28, 38 and 39 are related and will be discussed together, by agreement.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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I move amendment No. 4:


In page 12, between lines 9 and 10, to insert the following:" "Minister's FOI Data Manager" means the person appointed by the Minister for Public Expenditure and Reform within his or her Department responsible for collating and publishing all FOI related data;".
I suggest this amendment for a very practical reason. In dealing with the new Department, we have found ourselves in circumstances in which information and data have been scattered and not gathered in a coherent fashion, thereby making it not readily accessible to us or others. I certainly had that experience when seeking information on local authorities and pensions. Making a simple request for a full and comprehensive list of public bodies became an odyssey. It would be wise, therefore, to have an officer in the Department who would be responsible for the collation and publication of all the FOI data. This makes administrative sense. It would make the system more efficient and it would reassure people that their questions would not be passed from Billy to Jack and from one place to another.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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As I said, there is a group of amendments. Amendment No. 28 is in the name of the Deputy Sean Fleming. He may discuss it, after which Deputy Mary Lou McDonald may discuss amendments Nos. 38 and 39.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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Amendment No. 28 is on the same topic. It is a straightforward amendment to make provision for the establishment of a database to include all material released under FOI. I actually believe the Minister wants to achieve this and he is probably in the process of doing it. Since the Minister's Department is over the public service generally, I ask that it take on the task. The last thing we want is for every public body to produce its own database. There must be a method whereby every public body could release a copy of information to the Department every week or month so it could be put in a central file. Members of the public could go to the Department, which is over the public service, to find out a lot of information, thus obviating the need to make requests in respect of matters that have been answered in line Departments all along. The amendment allows for an adequate lead-in time -12 months after the enactment of the legislation - whereby the register of all information released could be established. I refer to information on the record that could be collated in one area for future use.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I ask Deputy McDonald to speak to amendments Nos. 38 and 39.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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They follow on from Amendment No. 4. Amendment No. 38 proposes operational procedures whereby, on a six-monthly basis,

a head would submit to the Minister's FOI data manager, whose role I described earlier, all decisions and determinations in a format to be agreed by the Minister prior to the enactment of the Act. In other words, it simply means that one would receive, in a timely and organised fashion and in an agreed format, all the data at a central location.

Amendment No. 39 suggests the same timeline. It requires that, on a six-monthly basis, a head shall submit to the Minister's FOI data manager all extensions of time for consideration of FOI requests in a format to be agreed by the Minister. In other words, there would be in the review a comprehensive twice-yearly report of decisions and delays for consideration. It would be a matter of good practice. The thrust of amendments Nos. 4, 38 and 39, my three amendments in the grouping, is to ensure the collection of data in a central location where it can all be accessed.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I agree with the points being made by the Deputies that the role of the FOI central policy unit, which now exists in my Department, needs to be enhanced in terms of establishing, supporting and securing compliance with good practice in public bodies. We will be producing the code of practice. I will lay it before the committee and we will discuss it. Members will, no doubt, be talking in due course with representatives of other Departments to ensure that everyone is familiar with the guidelines. A strong, authoritative leadership role by the FOI central policy unit is critical to ensure the system works. The mandate of the unit must be to develop the policy and guide and inform public bodies as to its implementation. That is the intention. The code of practice is being developed in tandem with the Bill, as I stated. It will go to the Government in the first instance and then to the Oireachtas, where it can be discussed in detail.

Deputy Fleming's amendment proposes to establish a database to include all information released under the Act. A review of the implementation of FOI was carried out in that context and consideration was given during that review to the publication of all records released. I thought about whether we should require it to be released. There are various views on the matter. Many journalists who obtain information under FOI regard it as their own and use it selectively, sometimes weeks or months later. It is a matter of debate whether the information obtained should all be published at the same time on its release. Whether that is appropriate is a matter for debate.

As of now various Departments have different views on it. I provided in the Bill for a draft code of practice which I will shortly bring to the Government. This will ensure consistency. Deputies know I have appointed a chief information officer, Bill McCluggage, to oversee a tracking system to ensure we have a handle, in a publicly accessible way, on how the freedom of information regime is working. We can do this administratively and we do not need legislative changes, or a data manager as such, as recommended by the Deputies.

5:15 pm

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I propose that we suspend the meeting and resume immediately after the vote in the Dáil has been taken. Is that agreed? Agreed.

Sitting suspended at 5.20 p.m. and resumed at 5.40 p.m.

5:20 pm

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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The Minister was in possession before we suspended. Does he wish to comment further?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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For the reasons I have outlined, the intentions of the Deputy will be met by the administrative procedures I have set out. I do not need to establish a new office of data manager.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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What is the Minister's position on amendments Nos. 38 and 39?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I will not accept them for the reasons I have laid out.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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Having made my case, I now propose to press the amendment.

Amendment put and declared lost.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendments No. 5 and 68 are related and may be discussed together.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I move amendment No. 5:


In page 13, line 38, after “body” where it secondly occurs to insert the following:“, and, notwithstanding any provision of this Act, shall not be construed as so as to impede, restrict or otherwise frustrate public access to the records held by the General Register Office in accordance with section 61 of the Civil Registration Act 2004”.
As the amendments were submitted by Deputy Catherine Murphy, I will ask her to speak on them.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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The records held by the General Register Office are public records and we must maintain that important principle. In the absence of any other good substitute for census data, these records are extremely important. Many professional genealogists are concerned that freedom of information provisions may be used to obstruct access to genealogical records. Such records should be excluded from the definition of "personal information" in the Bill. Defining such records as personal would not present a problem for someone researching his or her family but could mean that someone who is researching a family other than his or her own family, for whatever reason, is refused access to the relevant records. Many respected professional genealogists are concerned about this prospect. For this reason, we must operate on the principle that such records are public records.

In some countries, problems may arise with people obtaining records for the wrong reason. If people have a bona fide reason for carrying out research, the potential for misuse could be overcome by stamping a record as having been made available for research purposes. The purpose of the amendment is to ensure the legislation does not create a serious problem in the area of family research, a robust aspect of our heritage that is generating considerable new interest. The amendment will ensure the Bill does not result in the obstruction of research work.

Church records are defined as private records and many of those who seek to research them are exposed to obstacles. I have experience of this problem. One must obtain permission to carry out research in certain parishes, which can be a serious impediment to those carrying out research. The amendment will ensure the legislation does not create a problem in this regard.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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The Deputy may also speak on amendment No. 68, which is on the same theme.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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Amendment No. 68 is more closely related to the definition.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I will read out the text of the amendment, as it is closely related to amendment No. 5. The amendment proposes to insert the following in page 57:


“(10) Nothing in this section shall be invoked by a head to impede, restrict or otherwise frustrate public access to the records held by the General Register Office in accordance with section 61 of the Civil Registration Act 2004.”.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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Much the same argument applies in the case of both amendments Nos. 5 and 68. The key issue is the need to protect the principle that these are public records. The purpose of the amendments is to ensure they are excluded from the terms of the section. My proposal would forbid the freedom of information heads from invoking the legislation to refuse access to genealogical records. It would exclude such records from the definition of private records.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I was not sure of the Deputy's intention in tabling these amendments. My Department has communicated with the General Register Office to ascertain whether any difficulties arise in this regard. The office is part of the Department of Social Protection and, as such, it is covered by freedom of information provisions. I note that the committee's report recommended that the General Register Office be brought within the ambit of freedom of information legislation. This is already the case. The legislation will not prevent access to the registers as provided for under the Civil Registration Act. Legislation governing birth, death and marriage certificates held by the General Register Office is laid out in section 61 of the Civil Registration Act 2004. As I stated, we have communicated with the office and I understand it responds to both personal and non-personal freedom of information requests and publishes a substantial amount of information outside the freedom of information request framework. I am assured by the office that it is not aware of any problem in accessing records it holds.

The definition of the term "personal information" in section 2 sets out what, at a general level, constitutes personal information. It is information that would be either known, in the ordinary course of events, to the individual and his or her family or held by the freedom of information body on the understanding that it will be treated as confidential by that body. The definition sets out examples of what this type of information this could entail. It includes such information as relates to the educational, medical and psychiatric history of an individual; the financial affairs of an individual; his or her membership of a trade union; the criminal history of a person or proceedings that were taken against him or her; an individual or a person's entitlement to or claiming of social welfare benefits; or any matter relating to the religion of an individual. This is personal information and is regarded as personal.

Section 37 protects personal information held by the freedom of information body against third party access. Given issues such as psychiatric history, there is good reason this should be the case. A public body has discretion to consider the release of such information to a third party where, on balance, the decision maker is of the opinion that the public interest in disclosure outweighs the right to privacy. Prior to making a decision on any such release, the consultation procedures that are set out in section 38 must be followed. Public bodies, including the General Register Office, must respect the right to privacy in handling freedom of information requests. However, the Bill makes clear that where the personal information relates to the requester, with some exceptions such as medical or psychiatric records, the exemption from the provision of personal information does not apply. Cases could arise in which information of this nature would not be released to the individual in question but to the person's doctor if it is believed it would be in the best interests of the individual in question to do so. As such, there is nothing in the Bill that would prevent the General Register Office or any other public body from giving access to personal information, provided it does so in compliance with the legislation. For this reason, I do not propose to accept the amendments.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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Is it the case that these General Register Office records are regarded as public information? Will no restrictions apply to such records where a person seeks to obtain them? Such an assurance would address my concerns.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The general records of the General Register Office - that is, the register of births and so forth - are public documents which are subject to freedom of information legislation and readily accessible. One can check these documents without recourse to the legislation.

Amendment, by leave, withdrawn

Section 2 agreed to.

SECTION 3

5:30 pm

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I move amendment No. 6:


In page 15, to delete lines 9 to 14 and substitute the following:“(3) Every order or regulation under this Act shall be brought before each House of the Oireachtas for approval by both Houses and if a resolution approving such regulation or order is not passed by both Houses, the regulation or order shall be annulled accordingly.”.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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This amendment would make it a requirement that every single order proposed to be made be subject to a positive resolution. Where there are substantial issues such as the inclusion or exclusion of anybody or any organisation, it will require a positive resolution of the Houses. Where minor changes need to be made, they will not require a positive resolution unless someone tables a resolution to seek to negative them.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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In simple English, does this mean a “Yes” vote to carry something?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It means formally tabling an order in the House that will require a vote.

Amendment, by leave, withdrawn.

Section 3 agreed to.

Sections 4 and 5 agreed to.

SECTION 6

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I move amendment No. 7:


In page 15, lines 26 to 28, to delete all words from and including “Subject” in line 26 down to and including “Act:” in line 28 and substitute the following:“Subject to subsections (2) and (3), each of the following (other than an entity specified in Part 2 of Schedule 1, a subsidiary of such an entity, a body directly or indirectly controlled by such an entity, or an element of an entity specified in Part 1 of Schedule 1) shall be a public body for the purposes of this Act:”.
The intention behind this amendment is to provide that the exemption applying to bodies included in Schedule 1 will extend to subsidiaries of such bodies and bodies controlled directly and indirectly by such bodies. I want to withdraw the amendment so as to refine it and bring it back on Report Stage. I am in consultations with several bodies which have complicated subsets and I want to get a handle on the matter.

Amendment, by leave, withdrawn.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I move amendment No. 8:


In page 15, between lines 29 and 30, to insert the following:“(b) Irish Water;”.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Irish Water was only recently established and another Bill is under way in the Houses which will provide for a structured reporting mechanism to the Oireachtas and the regulatory authorities. That Bill will assign responsibility for economic regulation to the Commission for Energy Regulation, putting Irish Water in the same position as regards clarity and transparency in economic performance and conduct as, for example, the energy companies. In addition, up to 15% of households receive their water from privately operated group water schemes and some commercial enterprises source their own water supplied by private wells. Irish Water will operate in a highly regulated environment, closely monitored by statutory agencies. There are several layers of accountability and transparency envisaged in the legislation before the House. I believe Irish Water should come within the ambit of freedom of information. However, it is not ready to do this yet. I am proposing to exempt it with a view to including it when it is up and running.

Amendment, by leave, withdrawn.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendments Nos. 9 and 73 are related and will be discussed together.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I move amendment No. 9:


In page 15, between lines 29 and 30, to insert the following:“(b) the Office of the President;”.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Amendment No. 9 seeks to include the Office of the President in the definition of a public body under section 6. Section 42 sets out several areas where the Freedom of Information Act does not apply. This amendment would provide for the removal of the records relating to the President from this section. This matter has already been dealt with under section 6. The general view is that the Head of State should not be encompassed by freedom of information legislation. The strong advice we have received is that including it would impact on the dignity and independence of the office. For that reason, I have accepted the advice not to include it in the legislation.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Why would it impact on the office?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The model freedom of information legislation is the United Kingdom’s and it exempts the Head of State from it.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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That is handy for her.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Some countries do include the Head of State in their freedom of information legislation. However, on balance, a case was made, not by the President, that the general practice had been that the Houses did not encroach on the independence of the Office of the President. Including this amendment would be perceived as an intrusion on that office.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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One could argue the exact opposite. The fact that one of the richest women in Britain - the Queen - is not subject to freedom of information legislation is problematic. One could argue that including the Office of the President in the legislation would assist in maintaining the integrity and dignity of the office because it should be open, transparent and representative of all the people. It would be positive for the office to be seen as such and accessible to public scrutiny and inquiry. Obviously, the private lives of the President and his or her family are different matters. It would be entirely reasonable, however, to make information on how the office spends its money and so forth subject to freedom of information legislation. In the current climate public office does not have great standing generally. While the President is an exception to this, it would set a good example if the office were to be included in the legislation, stating all public offices would be subject to public scrutiny.

5:40 pm

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Was the view of President Higgins sought? I wonder whether that might be worth doing before Report Stage. I have sympathy with Deputy Boyd Barrett's position. Maybe it is something that the Office of the President would embrace as part of moving towards a more transparent Oireachtas.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I would be most reluctant to involve the President in any of the discussion. It should be for us to make the determination.

I do not have a closed view on it. The general point is that one does not bring the Office of the President into controversy. That is merely the prevailing standard. That is why one does not mention the Office of the President in debates of the House. It is above politics.

There is an argument, one I have rehearsed with my officials, about whether the administrative side - for example, the nuts and bolts of support for the President - could be encompassed without the Office of the President being involved. If that is the view of members, I will pursue that, without talking directly to the President, between now and Report Stage. I would be interested in hearing views. If members feel that is not appropriate, I would like to hear that too.

Photo of Regina DohertyRegina Doherty (Meath East, Fine Gael)
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The Minister stated that it was a view held by some that it could potentially bring the Office of the President into disrepute or would be undignified. Who are the some? Who holds the view that we should not seek the view of the President?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Those whom we consult in all of these matters are the officials of the line Department responsible. In this case, it is the officials who deal with the Office of the President in the Department of the Taoiseach.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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As the amendment is in the name of Deputy Sean Fleming, I propose that it be withdrawn.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I am interested in hearing members' views.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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This is a formality. We can still discuss it. It is so that it can be re-entered at Report Stage.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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So long as we can continue to discuss it.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Yes. The Deputy has discussed it. If Deputy Fleming arrives, the position will be different.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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He will be on his way shortly.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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That is fine. I am merely trying to slow proceedings down to allow that to happen.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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It would be worth pursuing to apply a general principle of transparency. I see no down side to it but I do see an up side. It is probably marginal.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I propose we operate on the assumption that the amendment will be withdrawn and that the Minister will give consideration to what one might call the administrative aspects, rather than the President's private diary, etc. Is that agreed? Agreed.

Amendment, by leave, withdrawn.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendments Nos. 10, 11 and 85 to 97, inclusive, are related. Amendment No. 85 is a physical alternative to amendment No. 86 and 87, inclusive. Amendments Nos. 10, 11 and 85 to 97, inclusive, will be discussed together.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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We made great progress on Deputy Sean Fleming's amendments in his absence.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I was speaking during the Topical Issue debate.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I know that.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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When I told the Minister, he said he did not believe me.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I move amendment No. 10:


In page 15, between lines 29 and 30, to insert the following:"(b) the administrative functions of Tourism Ireland;".
In line with some of the other topics I had already listed, Tourism Ireland should be listed as a public body in this area. The administrative functions do not include confidential matters, commercial matters or matters of sensitivity. I can understand that on the island of Ireland some might say there is no commercial disadvantage, but in my opinion there would be, because Tourism Ireland is in competition with the tourism authorities in the United Kingdom, such as in Scotland, and in other countries in the European Union that are trying to attract tourism. However, the administrative functions of Tourism Ireland should be included in this legislation.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendment No. 11 is in the name of Deputy Sean Fleming as well, as are some of the amendments those, amendments Nos. 85 to 97, inclusive.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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The reason I mentioned "the functions of Bus Éireann that directly relate to the provision by it of school transport services for the Department of Education and Skills on a contract agency basis" is that legislation permits that those who provide services on a contract basis for a public body can be included in the freedom of information provisions. We all understand that Bus Éireann is out there in the commercial arena. I am not even remotely suggesting that the company be brought into it. The Minister and I probably agree that we should not give a commercial disadvantage to State-owned companies that are competing with the private sector. However, school transport is a public duty. It is really a Department of Education and Skills function. It is contracted from the Department of Education and Skills to Bus Éireann. The company involved need not be Bus Éireann; it could be any company. The essence of amendment No. 11 is that the school transport function, which is an integral part of the functions of the Department of Education and Skills, whether it is carried out by Bus Éireann or any other company, should be subject to the freedom of information provisions. My views are clear. The Minister will get the gist of what I am saying in that regard.

Amendments Nos. 85 to 97, inclusive, are quite a group. On the ones in my name, there is a list of exempted bodies in that schedule and I want EirGrid excluded from the list of exempted bodies. I refer to amendment No. 90, which relates to EirGrid. This is an issue. The Minister, even in his own county, will be aware of the operations of EirGrid with the Grid Link project. It is important how EirGrid goes about its business. This is an organisation that is not in commercial competition with any State company or anybody in the private sector. It is the provider of the network. This time last week, I was at an oral hearing against an EirGrid proposal in County Laois. Having lodged an objection with An Bord Pleanála, I have seen how the company operates at first hand. I have been dealing with it for a number of years in the midlands. There are 400 kV pylons traversing the midlands from Moneypoint up towards Dublin. They have been there for 20 or 25 years.

The reason it is necessary for EirGrid to be excluded from the list of exempted agencies is that it is having a serious impact on the lives of many individuals. I am not happy about how EirGrid goes about its business. There are several State organisations that do work on behalf of the State in terms of the provision of services, and some of them go about it in a good way. I will contrast how the National Roads Authority, NRA, does its work with how EirGrid does its work. They should be similar organisations in terms of how they deal with the public. They want to bring a line from A to B, and they have alternative routes and alternative corridors. In many places in which the motorway network was built over the past decade or so, many people whose families had lived in particular houses for a hundred or two hundred years found that those houses had to be removed and bulldozed to make way for them. By and large, the NRA did a good job. It is probably unpopular politically to say that, because commentators enjoy taking a crack at the NRA, but I have seen at first hand how it explained to the people how it was going about its business, and its representatives met people in a non-confrontational manner. EirGrid could learn much from the likes of the NRA. I suggest that if the NRA could be moved in to take over EirGrid, all the problems that we will probably encounter over the coming period would not happen. The reason is that EirGrid is secretive about how it does its business. It is not up-front about it. As I have said to the face of the EirGrid representatives at the public hearing, they deliberately misled the public. They give out false information.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Deputy Sean Fleming should be more measured in his language.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I must explain why.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I accept that. Under the Standing Orders of the committees, one cannot put a proposal or make allegations-----

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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Against an individual. I am talking about an organisation.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Or, in fairness, entities.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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A public body is not exempt from criticism in the national Parliament. Let us be realistic here.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Deputy, please.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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The Chairman should tell me what I did wrong and I will correct it.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Deputy Sean Fleming chaired committees when I came into this House.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I have named nobody.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I can get the transcript for Deputy Sean Fleming if he wishes. His language is travelling a little. Deputy Sean Fleming read out the formula that members should respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or entity by name or in such a way as to make him, her or it identifiable more times than I did.

He was a chairman for five years and should know that by heart.

5:50 pm

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I will not make any charge against any person by name, but EirGrid must be brought under the Freedom of Information Act. It adds to the arrogance of that organisation. How much or little arrogance is a matter for people to judge; I will not comment on that. My amendment deletes line 30. I want Coillte Teoranta excluded as an exempted body for similar reasons. I will not go into the specifics. Regarding line 3, on the Food Safety Promotion Board, people are entitled to know about when and where these organisations become aware of food safety matters, so that organisation should not be exempt.

I am also speaking on amendment No. 93, which proposes to delete line 7 on page 76. We are back to my friend Irish Water. This was discussed earlier, but the provision copperfastens Irish Water as an exempt agency and it should not be. We had a good discussion with the Minister and he told us he was minded to consider not exempting Irish Water. He made a clear distinction and has drawn a good parallel here. I accept the logic whereby the commercial semi-State bodies that are out there competing should not have to be at a disadvantage. However, the Minister said Iarnród Éireann would be included because, although it is a big State agency, nobody is in competition with it so there is no commercial disadvantage to its being included. There are several provisions in the legislation to protect commercially sensitive matters. The same applies to Irish Water as Iarnród Éireann. It is a large organisation carrying out Government policy on behalf of the State and there is no commercial sensitivity involved.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Deputy Fleming insisted that the amendment be dealt with separately, but now we are putting it back in the group.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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That is amendment No. 93. It was coming in a second time. Amendment No. 96 has been dealt with. It comes in under the original section and here in the Schedule. Amendment No. 97 seeks to delete line 22, which refers to Waterways Ireland. It is not in commercial competition with any other company and I would like it to be included.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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In that grouping there are a number of different amendments, and even the Minister is included in the list. I return to amendment No. 85 from Deputies McDonald and Donnelly.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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I come to these exempted agencies from a different position from Deputy Fleming. Amendment No. 85 proposes a simple deletion of the exempted agencies set out in Part 2. The list is lengthy: An Post, Bantry Bay Harbour, Bord Gáis Éireann, Bord na Móna, Bus Éireann and Irish Water. There are matters that would be commercially sensitive attached to the commercial mandate of these bodies, which should be exempted from FOI. That is reasonable; however, none of these bodies should have a blanket exemption from FOI. They should be included and when requests impinge on matters that are demonstrably commercially sensitive, or damaging to that body's commercial mandate in the case of the commercial semi-states, an exemption should apply. It is not good practice to give them a blanket exemption. From the discussions we have had around this issue, many matters hinged on the Minister's correct concern about commercial sensitivity and competitive tensions between State bodies and private operators. All of that is legitimate, but he could have catered for that concern not by granting a blanket exemption but by setting out circumstances that relate to those commercial sensitivities and the commercial mandate and allowing exemptions in those circumstances only.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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At the risk of annoying committee members, I would like to go through this list, because creating an exempt list in legislation is a very serious thing to do. In the Minister's response I would like him to explain why they should be exempt and what principles are at stake. Commercial sensitivity may be one of them, but are there others? What is the full list of reasons for any organisation to be exempt? If and when there is a legitimate argument for commercial sensitivity, is there not some other provision in the legislation under which a body can claim commercial sensitivity? Let us say a body is not on this list but an FOI request is made where there are legitimate grounds for claiming commercial sensitivity. Does that apply somewhere else? Could the Minister point to that or tell us if there is any provision other than this list?

I disagree with Deputies Fleming and McDonald on the competitiveness of State-owned organisations. It is unfair on the companies competing with State-owned organisations. I have asked Dublin Bus for very reasonable passenger flow information regarding very disruptive changes it was making to bus services in Wicklow and it hid behind commercial sensitivity, which seems to be what it would do. Dublin Bus was most unhelpful. If a private operator can operate a Dublin Bus route at exactly the same level of service to the public but at a lower cost to the State and the citizen, that is good. The public gets the same service and the cost to the taxpayer decreases. I know that is not a universally shared view. Such information is useful. A private bus company is trying to compete with a State-subsidised entity. That is not fair or reasonable. Could the Minister outline why these are exempt? Nothing should be exempt. There is real commercial sensitivity in some cases. Is that not contained somewhere else in the legislation?

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I call the Minister to speak on amendments Nos. 92 and 94 and respond to amendments Nos. 10, 11, 85 to 88, inclusive, 90, 91, 93, 95 and 96.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The Chairman will guide me if I go astray in terms of not being comprehensive in my reply. We had this discussion in principle during the pre-legislative scrutiny and Deputy Donnelly and I disagreed on the commercial semi-states. It would be a major impediment to the success of the commercial semi-states to place a burden on them to give information simply because they are in State ownership. It would result in competitive disadvantage but would have an implication for sharing information with private companies if they thought that might come into the public domain in a way that would damage them. I am minded to stick to the exclusion of the commercial semi-states. Deputy Fleming agrees with that in principle but he has his knife out for one or two that have annoyed him.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I must ask the Minister to mind his language also, since I pulled up Deputy Fleming.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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He wants a few brought in because he regards them as bad. However, we must apply the principle of uniform exclusion for the commercial semi-states to operate in a highly competitive market.

Then we come to another net issue.

6:00 pm

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Is the Minister distinguishing between monopolies-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I indicated during our pre-legislative discussion that I would reflect on the scenario in which there is no competition. I gave the example of Irish Rail at the time and I also mentioned Irish Water. We have discussed the Irish Water amendment but I acknowledge Deputy Fleming was detained in the House. I said that ultimately Irish Water should be included but legislation is going through the House and I do not want to pre-empt the scrutiny of that. I would like to exclude Irish Water with the option of coming back to it and I have the provision to bring it in in due course, but we can discuss that on Report Stage.

I will not go through the full list of Part 2 exemptions, but they include all the commercial semi-state companies, and the general principle applies. I will deal with the companies that are proposed to be delisted. Tourism Ireland was established under the framework of the British-Irish Agreement 1999 and it operates under a code of practice for North-South bodies approved by the North-South Ministerial Council, which has regard to the FOI legislation operating in both the UK and Ireland. In view of this arrangement, which ensures there is an appropriate openness and transparency in Tourism Ireland's activities consistent with its unique status as a North-South body, I do not propose to accept the Deputy's amendment.

With regard to Bus Éireann and the provision of a school transport service, the Deputy accepts why the company should be excluded but he believes the school transport system is a discrete subset that should be covered and I am pleased to advise him that I am restoring the application of FOI to records held for service providers in so far as the records relate to services provided under contract to an FOI body. Records relating to the school transport service provided by Bus Éireann will be brought under FOI within six months of the enactment of this legislation. The draft Bill exempts most commercial semi-state bodies from full FOI provisions as set out in Part 2 of the Schedule. The Government has agreed that commercial semi-state bodies in general should not be subject to FOI requirements because of the points I have made about commercial information.

The six North-South bodies established under the British-Irish Agreement along with Tourism Ireland were established separately under the framework of the British-Irish Agreement. That is the formal legal status. They operate under the FOI code of practice for such bodies approved by the North-South Ministerial Council, which met in Armagh last Friday. It was a constructive interaction between the Government and the Northern Ireland Executive. They must have regard to FOI legislation both in the Republic and in Northern Ireland. The Food Safety Authority of Ireland, which is the particular body referenced by Deputy Fleming, is covered by FOI. The Food Safety Promotion Board is a North-South body and a separate entity.

EirGrid is a regulated by the Commission for Energy Regulation, CER, which means there is transparency in how its network business is regulated, and significant information is published by the CER on its website regarding key decisions such as electricity network charges, investment programmes and intended developments. To subject it to FOI would have the clear potential for an unintended consequence of creating market distortions and placing EirGrid at a disadvantage in its commercial relationships with its customers, which is ultimately not in the interests of the consumer or the State. In other words, it might not be in competition as a core provider of infrastructure but it is in a commercial relationship with a variety of energy generators who would be unhappy to have their information subject to FOI. That would happen if EirGrid was included, and for that reason I was persuaded that the company should be exempt.

I am convinced that commercial semi-state companies should not be subject in general to FOI for the reasons I have outlined. Deputy Donnelly, in particular, has a different view, which is fine, but what I propose is consistent with what I outlined to the committee when I last appeared.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I welcome the Minister's recognition that the school transport service is discrete and his declaration that it will be subject to FOI within six months. That is good to see. Members have invested a great deal of time and energy in this legislation during pre-legislative scrutiny and prior to Second Stage. We did not end up with almost 100 amendments without considerable work. They are not just glib amendments.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I have tried to address them.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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Exactly, and the Minister is dealing with them specifically.

I would like to tease out the EirGrid issue in order that we understand the nature of the company. I will desist from bias in my language but I am not sure that I fully agree with the Minister's comments about the company. It provides all the 400 kV and 200 kV power lines in the electricity transmission network, while the smaller lines - 38 kV and so on - that run into people's houses are provided by the ESB. EirGrid's mission is to transport the electricity produced by the generator, public and private. The ESB has had to divest some of its generating capacity in the interest of flexibility and market liberalisation. It has nothing to do with the recently announced sale of State assets, which is a separate issue. ESB probably only produces between 30% and 40% of electricity in the State.

Wherever electricity is generated, EirGrid's mandate is to transport it to wherever it is required, and that generally means from other parts of Ireland to the east coast. There is no commercial issue. The companies running the power stations in Wexford, Cork or Moneypoint deal with commercial organisations. EirGrid is investing of a few billion euro of taxpayer's money ultimately but it is a public body that is a service provider. Every public body engages in commercial transactions. For example, local authorities purchase materials but they cannot be excluded from FOI because the companies that supply services to them would not like their information to become public. This is also a commercially sensitive issue.

The reasons these bodies are included in the Schedule is that Departments do not trust the Information Commissioner. They think he might be too liberal in his interpretation of commercial sensitivity. This exemption is a mechanism to prevent this issue from being examined by the Information Commissioner on appeal. This is one way for a Department to ensure information will never get out. Like every other body, EirGrid deals with commercial organisations, but it is not in competition with anyone. Will the Minister take me through the reasoning again?

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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I accept the Minister's argument in respect of the commercial sensitivity for semi-state companies. It would be unreasonable to place FOI strictures and requirements on bodies that compete in many instances with private operators that are not subject to a similar regime.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Companies would be able to utilise it against them.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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Absolutely, and I do not have an issue with that at all.

My concern is that the legislation goes much further than recognising this reality and gives a blanket exemption in respect of freedom of information requests to these bodies. While it is true that they compete in commercial markets, I disagree with Deputy Fleming. There is a qualitative difference because while they are supposed to be profit-generating and dividend-returning to the State, they are semi-state bodies and we have a vested interest in them. It is a mistake to give them a blanket exemption. There could have been a much more nuanced way of catering for this legitimate concern about their commercial mandate and the competitive pressures and commercial sensitivity. I have made this point repeatedly and I hope it is clear to the Minister. I think it is.

6:10 pm

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Is commercial sensitivity covered anywhere else in the legislation?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Yes, in section 36(3).

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Am I correct to think the only grounds given for exemption are based on commercial sensitivity?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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There is a whole range of things and I will give the Deputy a comprehensive answer if I may. I have already given a comprehensive answer several times. These are not State agencies. They are commercial entities which happen to be owned by the State with a commercial mandate operating in a regulated environment. The notion that they are agencies or Departments of State doing a bit of commercial work on the side which should be exempt is fundamentally a different concept from mine. I see them as commercial companies established by the State, owned by the State and paying the State a dividend, with a commercial mandate to compete in a competitive environment. For this reason they are wholly commercial entities and should be regarded as such.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Therefore, the question I ask is whether the Minister's rationale for exempting them is on the grounds of commercial sensitivity.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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They are commercial in every aspect.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Therefore, information released under the freedom of information provisions would be commercially sensitive.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It would impede their competitiveness and aid those in competition with them to their disadvantage.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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That is what commercial sensitivity means. This is my question.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It goes well beyond commercial sensitivity. I am trying to give the Deputy a list. I think he understands the point.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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No, I do not. Will the Minister give me what is included in the list which is not commercial sensitivity?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I was in the process of doing so, but the Deputy stated that he understood.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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My question is what is the rationale beyond commercial sensitivity.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I do not think the Deputy has grasped what I have stated. These are commercial companies and to include them in the freedom of information regime when their competitors in the private sphere are not included would be to hobble them as effective players in a commercial market.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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That is because the information is commercially sensitive. Is that correct?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I have a whole range of issues.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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What are the other issues?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I was in the process of listing them. One is that anybody doing business with them would be fearful that their data, bids and interactions with them would come into the public sphere, so they would be disadvantaged on that front. Their own cost base and internal structures would be disadvantaged. One can think of all of the issues that could be subject to freedom of information requests that would be of advantage to a competitor if they were known. One is either in favour of having a commercial company owned by the State competing on a level playing field with a private-sphere company or one is not, but I do not agree with the notion of half-spancelling such a body because one feels that, as it is State-owned, a unique set of freedom of information responsibilities should fall upon it, which would clearly have a commercial impact because it would kill off the semi-state sphere. Perhaps this is the Deputy's view, but it is not mine.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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That is fine, but I still cannot find anything in what the Minister has said that is not to do with commercial sensitivity. The only thing the Minister has added to commercially sensitive information is third party data, but Government Departments have third party data from companies and they clearly know how to deal with it. I do not think commercially sensitive information should be released to competitors. We agree on this. However, the legislation already covers issues of commercial sensitivity. Unless there is something else that is not covered by the section the Minister referenced on commercial sensitivity, why does this list exist? I cannot hear any reason other than commercial sensitivity.

As an aside, I have a philosophical question which is not relevant to the information. State companies were not established to compete. They were established because the private sector did not establish them. Bodies such as the ESB and Irish Water were not established to compete; they were established for very good reasons. The State is not in the business of establishing companies to compete with the private sector. The State is in the business of establishing organisations that would not be established by the private sector on its own, and we have a bunch of these. With respect, these bodies do not compete on a level playing field. Dublin Bus does not compete on a level playing field with private operators because Dublin Bus has a State guarantee. If the private operators run out of money they will go out of business, but none of the State agencies will ever go out of business.

If commercial sensitivity is already guaranteed for any agency, what is special about this list that is not already covered by commercial sensitivity? I have heard about nothing other than commercial sensitivity, which I accept and which is dealt with elsewhere in the Bill.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I am afraid I am speaking the dialogue of the deaf.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Perhaps the Minister is not. Perhaps he should not disregard what I am saying as ramblings. Perhaps, heaven forbid, I am making a point.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Do not patronise me.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Then the Minister should not patronise me.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I ask both of my colleagues to speak on the amendments.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I do not mind toing and froing because it allows people to speak. We have different perspectives on this. I have set out my case repeatedly, today and on the previous occasion, and the Deputy wants to corral this into commercial sensitivity-----

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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On a point of clarification, the ESB was established 50 or 60 years ago because we needed electrification in rural parts of the country, but it now competes in the economic sphere, and under a ruling from Europe the company has been broken down similarly to Bord Gáis and other such companies. It will not be the same for Irish Water because the legislation explicitly states that it will remain in public ownership.

Sometimes debate does not end in agreement, and the Minister and a committee member will have different positions. I would like to move on. I ask Deputy Donnelly to speak on a different aspect of the issue because I do not want repetition.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I will try to move on. I am not saying I am right; I am really trying to understand the list. Will the Minister give me an example of information that it would be right and proper these organisations would not share and that would not be covered by commercial sensitivity?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The Deputy is drilling down. I do not know-----

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Tendering materials.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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They are commercially sensitive. I am asking for an example of something that is not commercially sensitive.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The bottom line is there is no absolute definition of commercial sensitivity. Virtually everything these companies do is commercially sensitive. There is no doubt in any person's mind that they would be disadvantaged with regard to the private sector, which is not subject to freedom of information provisions. This is a simple, plain fact. They would be disadvantaged even from the point of view of the perception of those dealing with them if they were subject to freedom of information provisions while a competitor was not. This is self-evident, and however logical a presentation Deputy Donnelly gives, this is an inescapable fact, in my judgment. If the Deputy has a different judgment that is fine, but this is what I am presenting to the committee as the reasoning I propose for the exemption.

6:20 pm

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I wish to continue with this point. Is the Minister claiming that everything the language body does is commercially sensitive?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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That is one of the North-South bodies. If the Deputy had been listening, I gave a different rationale for its exemption.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Is the Food Safety Promotion Board a North-South body?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Yes.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Will the Minister, please, provide an example - this is not an unreasonable request on Committee Stage - of a piece of information?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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No, this has gone-----

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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With the greatest of respect, this is-----

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I allowed the Deputy to ask a question. Will he, please, allow the Minister to respond?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It is absurd. If the Deputy wants to include the commercial semi-States under FOI legislation, it is a recipe to destroy them. It would certainly disadvantage them. That might be an objective some might have, but it is not one to which I subscribe. The Chairman is right, in that we are not discussing what happened 50 years ago when a unique body was set up for a purpose. Most of the commercial semi-State bodies work in a regulated environment subject to EU competition rules. There is considerably transparency in what they do within the sphere of commercial sensitivity and I do not intend to impose a unique set of further restrictions on them simply because they are State-owned.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I can think of good reasons to include State-owned bodies. Let us take the ESB as an example. We have the highest energy prices on Earth. We also have some of the highest wages paid within a utility sector. I have plenty of anecdotal evidence of all manner of ways to save the State money while providing the same service, but the ESB is protected.

I will conclude, as the Minister clearly is not going to engage further, but I would like to note that he has been unable to give me a single example of a single piece of information that any of these bodies have that it would be appropriate to protect and that is not already protected by commercial sensitivity provisions in the legislation.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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This is not "Judge Judy" with me presenting a case to a jury and, in summation, the witness fails to give evidence. The bottom line is I have made a coherent case as to why the commercial semi-State companies should not be spancelled. The Deputy has a different view because he is not a supporter of the commercial semi-State bodies. That is a perfectly legitimate view to hold-----

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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That is not my reason at all.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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-----but, please, do not come to conclusions on the presentation I have made. It was coherent for anyone who wanted to listen to it.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Next up are Deputies Richard Boyd Barrett, Michael Creed and Pearse Doherty.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I raised an issue extensively with the Minister at the pre-legislative stage. He certainly cannot accuse me - perhaps he might - of being-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Anti-State.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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-----anti-State or anti-public body.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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The Deputy might be anti-Establishment, but he is not anti-public body.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Indeed. We need to protect, expand and develop public enterprises, which is what I prefer to call them. To my mind, even the language "commercial semi-State" and the Minister's concept of what these bodies entail are deeply problematic. I am not quite sure about from where the term "commercial semi-State" came. They are bodies that are 100% owned by the public. They are public bodies that maintain vital public infrastructure and provide vital public services. Therefore, the public has the right to information on their functioning.

I have two points to make on the idea that, since they are involved in a market, they would be disadvantaged in respect of their creditors. First, their competitors should be subject to FOI legislation also if these are important areas. That would level the playing field in a better direction, in that there would be full transparency for everyone, public and private.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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Nationalise all of them.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Indeed. I will cite an example of where the Minister's argument falls down, that being, housing. Local authorities provide a desperately inadequate amount of social housing, yet it is still significant. They do so in a commercial market, if one wanted to put it in these terms, in that there are private providers of housing. Using the Minister's logic, local authorities should not be subject to freedom of information legislation because they are engaged in the commercial housing market.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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There is an income threshold for social housing.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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And affordable housing.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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There is a public service obligation in the case of transport and one can walk through the forests which are vital parts of our heritage. Saying something is a commercial operation and, therefore, the catch-all term of "commercial sensitivities" should insulate it from public scrutiny is unacceptable, particularly when there are major question marks over what is happening in Coillte or, in an example close to me, Dún Laoghaire Harbour. The public believes it to be theirs and they are right. People want to know what the hell is going on there, why the CEO pays himself massive amounts of money and why hundreds of thousands of euro have been paid to consultants in developing elaborate plans for the harbour, none of which has ever materialised. That it belongs to the people is also true of every other harbour and airport in the country.

I do not have time to go through every individual body, but the amendment I will formally move - I have tabled one or two, but I must go now - would require everything to be included. The onus should be on those bodies to make a case as to why particular FOI requests would prejudice their ability to function or disadvantage them. We start with the presumption that all public bodies must provide the information. If they have a problem with this, we can set up a mechanism to allow them to make a case in order that they would not be disadvantaged. That is the other option, but the Minister has never addressed it, despite this and previous discussions. Let us have the presumption that information should be freely available in all of these bodies unless there is a particular problem, at which point a body could make a case. Someone we trusted could adjudicate on the rights and wrongs of that request. That would be a reasonable approach. It is also the approach proposed by groups such as Transparency International and just about everyone else who gave expert testimony on this subject.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I am conscious that the Deputy might be leaving for a while. To clarify for when the Minister responds, is the Deputy stating private companies should be subject to the Freedom of Information Act also?

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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In the first instance, there should be no exemptions; there should be a presumption that public bodies would provide information. If the Minister wants to bring forward as an argument for not doing so that private entities would then have an advantage over public bodies, my belief is that what is good for the goose is good for the gander in any given market.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I thank the Deputy for clarifying the matter.

Photo of Michael CreedMichael Creed (Cork North West, Fine Gael)
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I will revert to Deputy Sean Fleming's point on school transport and the Minister's concession that some of that material will now be subject to FOI legislation. That is welcome, as the more extensive the scope of the legislation, the better. Some of the issues about commercial semi-State bodies that we are discussing are interesting. On a future date it is likely that we will acknowledge that many of the activities in which they are involved are not commercially sensitive and that information on same could be released, as opposed to applying a blanket exemption.

My point relates to school transport and the issue of commercial sensitivities. Bus Éireann handles the transport system, but services are delivered, by and large, by third parties that contract with the State. Since Bus Éireann uses little of its own fleet and few of its own staff to deliver school transport services, what information does the Minister envisage being released into the public domain under freedom of information legislation that would not compromise commercial sensitivities regarding the prices tendered for the delivery of services by private contractors?

I know the point Deputy Fleming is making and there is an issue of legal proceedings and other questions. I have not been convinced by that either. What will be released into the public domain that will not compromise Bus Éireann's endeavours to get the best price from contractors or those who currently hold contracts, as opposed to those who wish to hold contracts?

6:30 pm

Photo of Regina DohertyRegina Doherty (Meath East, Fine Gael)
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Deputy Fleming spoke about EirGrid in addressing amendment No. 90. Will the Minister expand on his explanation as I find myself agreeing with Deputy Fleming in this regard, which is somewhat worrying?

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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We are not that bad.

Photo of Regina DohertyRegina Doherty (Meath East, Fine Gael)
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It regards a commercially sensitive fine, and the remit of EirGrid is to manage and develop the grid. I appreciate the Minister's argument that it may have information because of interaction between it and commercially sensitive bodies; it is most likely it is not commercially sensitive information that is being exchanged. I am coming from the same parameters as Deputy Fleming. In my county the communication used by EirGrid in interacting with the public leaves much to be desired - I am trying to be nice - and there is no scrutiny that I as an elected representative or any member of the public can give to EirGrid with regard to the debacle of the oral hearings with An Bord Pleanála conducted for the North-South interconnector a number of years ago. That is not good enough and there should be some mechanism whereby a public body that is not subject to freedom of information requests can be made to answer questions in the public interest.

I have no problem with regard to commercially sensitive information but there are other issues that are not commercially sensitive. The bodies in question are completely State-owned and run at the bequest of the State in its best interests. To completely ignore requests for information in cases where the company was supposedly acting on behalf of the State only frustrates interaction between Irish citizens and the people supposedly representing their best interests. Will the Minister explain, particularly with regard to EirGrid, the sensitive information that should be protected?

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Before I bring in the Minister, we agreed to break at 7.10 p.m. so perhaps we could try to get this cluster of amendments covered if possible. If it is not possible, we will resume on them again at 7.40 p.m.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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This debate is becoming enveloped by extraneous matters. I understand there are mass meetings concerning EirGrid and a Seanad debate about that matter tonight. If this was not happening with respect to EirGrid, it would be somebody else with this level of focus. Freedom of information is a very important tool for the citizen and organisations in trying to get access to information. It is not the only accountability mechanism in place and all the commercial semi-State bodies operate in a regulated environment. They are subject to independent authorities and are accountable to a line Minister, who in turn is accountable to the Houses and every committee therein. If a company in the public family presents an issue for any Member, the first port of call would be a line Minister. Whatever data required by the Member could be requested of the Minister through the company. There is no difficulty with that.

Most committees will have had people like the chief executives of the Dublin Airport Authority, Dublin Port or other organisations before them regularly. There is a suite of accountability measures that should not be dovetailed into freedom of information processes, as it would be a very unfulfilling mechanism to have to put in a request in order to get data, as opposed to questioning those with the accountability that State agencies should provide to Members. It is a matter for the committees to deal with.

I listened to Deputy Boyd Barrett, who unfortunately has had to leave. The notion that everybody should be brought in under the freedom of information provisions would spancel the commercial activities of semi-State bodies and yet the Deputy argues we would be pro-State or "pro-republic" enterprise, as he termed it. That is not thinking through the issue. There are practical issues of which we should be mindful. In broad strokes it sounds great to make all bodies subject to freedom of information processes, and they could all make their cases. Practically, law is not made in such a manner, and where would representatives of the bodies go to argue the case? What sort of bureaucracy would be required to set that up? Would it involve the Office of the Information Commissioner? It would function with that level of requirements. There must be a level of practicality.

I am sure the committee and I will have discussions with the Information Commissioner about the volume of additional work this legislation will send his way. To do what some of the Deputies opposite want would be incredibly onerous. The general principle is that we cannot dovetail all accountability mechanisms into the Freedom of Information Act, and there is a suite of oversight provision intricately involved in every piece of legislation that has established a commercial semi-State company. Examining the proposed Irish Water legislation, one can see the layers of accountability being inserted on different issues, with independent statutory authorities being responsible for oversight. For as long as I have been here, we have always wanted independent oversight, as we need an ongoing, independent and verifiable oversight of all public activity. That is why we have set up bodies to do the job and we trust them to do it. If they do not do the job effectively, we hold them to account as well.

A Deputy made a specific point regarding the rate of pay, for example, of CEOs in the likes of EirGrid, etc. The level of remuneration of every chief executive of every commercial semi-State body is subject to my authorisation. One of my first acts in office was to drastically reduce all those rates of pay. The Hay scale has been collapsed and nobody in the commercial semi-State body is paid more than €250,000, which is a very handsome salary to my judgment. Nevertheless, I have been told by all and sundry that we would not get people to run the very largest semi-State companies for that level of salary. We have done so, although these people were getting multiples of that amount not so long ago. I stopped performance-related pay, which is not good in the long term. We should set objectives and reward people for achieving them if they bring about transformations; that issue is for another day and when we are out of our current dilemma. It is not true that these commercial semi-State companies set their own pay rates, as they do not. They are subject to oversight.

There was a question regarding Bus Éireann. Information that would not be commercially sensitive includes number of buses and children carried, accident information, safety regulations, schemes regarding eligibility, qualifications of drivers and overall costs to families. That is a range of matters. I would like to know the determinations of routes and catchment, which is one of the more controversial elements.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I hope the Minister does not think I am harping on but I did not fully get the reply about EirGrid. It is not in a commercial business. The Minister indicated it deals with companies in a commercial area and it has commercial dealings with people supplying electricity.

However, every public body has commercial dealings with some organisations.

6:40 pm

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It is the total function in EirGrid. It has a contractual relationship with providers. That is what it does, both buying and selling.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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To whom does it sell?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I am saying in the distribution of it. It has a commercial relationship with any electricity generating company that generates capacity on the island. We have a single integrated all-island market and it has a commercial relationship with all the companies operating there.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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It has a commercial relationship but it is not in competition. The Minister has made that point. Where is its commercial sensitivity? Guard the commercial sensitivity of all its suppliers, but EirGrid is only in the transmission business, not the buying and selling. Its primary function is to build a grid and let people plug into it. It charges them for carrying the product, which happens to be electricity. Perhaps I will have to draft a more refined amendment on Report Stage. The provision of the grid is the establishment, building and putting in place of the grid, including the sub-stations and everything else. That must be subject to greater public scrutiny. That is my point. I fully accept that its dealings with different power generating companies is commercial in respect of the cost of connecting them in and out, when it brings them in and out and so forth. That is a commercial business and we can understand that. However, this is the provision of the infrastructure. It is a little like the National Roads Authority, NRA. It provides roads and everybody can use them afterwards. These people are providing the roads for the transmission of electricity. I am referring to the establishment of its network rather than its commercial dealings. I will refine a wording on that specific aspect of its activities.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Deputy Doherty asked the right question. It is a question I have been putting to all of them. Deputy Doherty is putting it to EirGrid. EirGrid is not competing with anybody. It has commercially sensitive information which absolutely should not be subject to freedom of information. That is protected by the commercial sensitivity provisions in the legislation. However, as we are all aware, EirGrid is also making some very important decisions about where pylons and high-voltage cables are located, which have an impact on the public and should be open to scrutiny. Why not allow them to be open to scrutiny?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The point I made, obviously inadequately, is that freedom of information is not how that should be scrutinised. If EirGrid has proposals, it is required by law to set out those proposals. It is required by the law to produce options, to have a consultation process and to go through the proper planning processes. That is the level of scrutiny.

Photo of Regina DohertyRegina Doherty (Meath East, Fine Gael)
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That is not the issue.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The fact that one does not agree with it is not what we are discussing here.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Why give it total immunity from freedom of information? What is the advantage to the State?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It is a commercial semi-State body that has commercial relationships, as I explained ad nauseam.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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It does not compete with anybody.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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As I said, it is unique inasmuch as it is in a commercial relationship with companies and in my judgment it would disadvantage them.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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As Deputy Fleming said, every Government Department is in commercial relationships.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It has a commercial mandate to run an infrastructure-----

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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It is the same as Iarnród Éireann.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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And the NRA.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It is not like the NRA. The NRA builds roads and does not contract the cars onto them-----

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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It contracts the builders of the roads.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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-----and regulate the cars. When it is done, it is done. However, there will not be a meeting of minds on this.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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How stands the amendment?

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I accept the Minister's response on the North-South issues.

Amendment, by leave, withdrawn.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I move amendment No. 11:


In page 15, between lines 29 and 30, to insert the following:“(b) the functions of Bus Éireann that directly relate to the provision by it of school transport services for the Department of Education and Skills on a contract agency basis;”.
What is the Minister's response? This is about Bus Éireann and school transport.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I have already restored the application of freedom of information to records held by service providers. What is intended by the amendment is already captured.

Amendment, by leave, withdrawn.

Sitting suspended at 7.10 p.m. and resumed at 7.50 p.m.

6:50 pm

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendment No. 12 is in the name of Deputy Sean Fleming. Amendments Nos. 12 and 79 to 84, inclusive, are related and may be discussed together..

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I move amendments No. 12:
In page 15, between lines 29 and 30, to insert the following:
“(b) receivers and administrators working for or employed by the National Asset Management Agency;”.
People will understand the reason the agency is worthy of discussion when it comes to FOI legislation is the scale of its activities. Amendment No. 79 has been tabled by the Minister and is directly related to mine. Amendment No. 81 in my name states: "In page 73, to delete lines 9 to 30". The provision relates to the Labour Relations Commission. I did not realise the LRC would be linked with NAMA in this discussion. Essentially, the Minister will know from where I am coming on this matter. The Haddington Road agreements talks took place recently, as a result of which, various letters were issued by the LRC to public sector management on the agreement, but they have not been made public. It would probably be going to the extreme to include all of the LRC's work in the legislation, as opposed to partially including it in Schedule 1. There is an element of secrecy to the work of the LRC which is not fully justified. While it is necessary to have some level of confidentiality during the conciliation part of LRC proceedings, in matters of public interest and where the taxpayer pays the bill, the letters issued to public sector unions should be made available to Members of the Oireachtas. During the discussions earlier this year I tried to see the letters issued, but I was surprised to discover they were exempt from the provision of FOI legislation. I think the Minister is of half a mind to release parts of the letters. I hope we can go some way towards dealing with this matter.

Amendment No. 83, in my name, to Schedule 1, reads: "In page 74, to delete lines 4 to 8...". It concerns the terms and conditions for the National Treasury Management Agency. On page 3 of the Bill, as initiated, there is a list of contents encompassing the sections and Schedules to the Bill. Part 1 refers to "Partially Included Agencies", while Part 2 refers to "Exempt Agencies." It is difficult to understand and people are confused about which public body is included. I want to remove part of section 6. The Minister responded to an issue on pay scales in the National Treasury Management Agency, as well as its subsidiaries, including the NTMA and everybody else. My amendment talks about partially included items. Will the Minister confirm that the terms and conditions on which a person holds a position in the agency are subject to freedom of information legislation?

These are the key points I wish to make on the amendments which have been grouped. Other members have tabled amendments to raise other topics.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendments Nos. 80, 82 and 84 are in the name of Deputy Stephen S. Donnelly.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Amendment No. 80 was compiled by Deputy Catherine Murphy.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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The amendment proposes to extend FOI legislation to certain elements of the activities of the Garda. It deals with the deployment of Garda personnel which is very unequal. One can understand why it happens in the way it does in some locations, but it is almost impossible to figure it out elsewhere. Around this time of the year, the Garda Commissioner is required to compile a service plan that is laid before the Houses of the Oireachtas in every December. It is almost impossible to understand the rationale behind some of the deployment decisions made. I have carried out a comparative study and discovered that some offences are likely to be under-reported because gardaí are required to witness them such as road traffic offences and drugs seizures. A low ratio of gardaí leads to an under-reporting of crime which, in turn, understates the need for additional gardaí. The Garda divisions of Kildare and Meath are by far the worst represented, followed by Wexford. I understand why this happens in a place such as Limerick which has had a particular problem; the same applies to Dublin city centre. However, every time I have asked a parliamentary question I have been told decisions are based on crime rates, size of population and other similar criteria.

We have gone through the statistics on crime from the CSO website. It appears that the crimes reported are counted but there is under-reporting of specific crimes. There is a need to examine that to ensure there is a fair allocation of resources around the country. I do not see how we can do that through the process of laying the Garda Síochána plan before the Houses of the Oireachtas without the ability to scrutinise it properly. It is up to the Garda Commissioner to deploy staff as he sees fit based on the information available to him. For example, Sligo/Leitrim north does not have a particular difficulty and has a significantly lower population than some parts of the country but it has a higher number of gardaí. I hope that outlines why the specific element should be opened up to greater scrutiny. That involves the Garda Síochána directly as opposed to the Minister, who does not have the responsibility for deploying the force; the Garda Commissioner does.

6:55 pm

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I call on the Minister to respond to amendment No. 79 and then we will hear responses.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I will go through them seriatim. There is a variety of subsets in the grouping. In respect of the amendment tabled by Deputy Sean Fleming, No. 12, which is grouped with amendments Nos 81 and 83, receivers and administrators, whether appointed by NAMA or by another secured lender, fall outside the definition of a public body as set out in section 6 of the Freedom of Information Bill. The receiver or administrator is an independent legal officer appointed to take control of and realise the assets securing the loan. The receiver or administrator acts as the legal agent of and for the benefit of the borrower and not of the lender or the secured creditor. The receiver or administrator’s costs are borne by the receivership and not by the lender. Accordingly, I am strongly advised that it would not be appropriate to define receivers and administrators as public bodies and therefore I cannot accept the amendment.

NAMA appoints receivers and administrators by reference to sections 147 to 149 of the National Asset Management Agency Act. A secured lender, including NAMA, can also appoint receivers and administrators by reference to section 316 of the Companies Acts 1990, as amended. In the case of assets outside Ireland, receivers and administrators are appointed by reference to contractual loan documents or by reference to the courts in the relevant jurisdiction.

With regard to Deputy Sean Fleming’s amendment No. 81, the Equality Authority, the Labour Relations Commission and the Labour Court are being provided with an exemption from freedom of information to protect their functions in so far as they relate to dispute resolution, conciliation or mediation on a voluntary basis to settle disputes. That is their function. This includes the role of the Labour Court, the Rights Commissioner Service and the Labour Relations Commission in resolving industrial disputes. The possibility that records relating to parties to industrial relations processes would be released into the public domain under freedom of information would, I am strongly advised by the organisations, deter individuals, public and private bodies and trade unions from participating in the voluntary process. Moreover, continued recourse to the State’s industrial relations machinery to resolve industrial disputes is considered central to maintaining a stable industrial relations environment, promoting domestic and foreign investment and supporting economic recovery.

Where functions of these bodies relate to legally enforceable quasi-judicial functions, records relating to such functions will be subject to freedom of information, like those of other quasi-judicial bodies, but potential release of records will be subject to the exemptions in the Act in the normal way. In the case of Deputy Sean Fleming’s amendment No. 83, notwithstanding the established and strong general principle that pay information relating to any person employed by a State body should be subject to freedom of information, having consulted with the Minister for Finance, I accept that the NTMA is, for the most part, made up of specialist professional staff more or less exclusively recruited from the private sector and that this places it in a qualitatively different situation from other public bodies in terms of the potential impact of the publication of individual pay information. We have had discussions on this matter to see if we can make it more transparent and, in keeping with the need to promote greater openness and transparency on pay structures in the NTMA, I have requested that the NTMA take further steps to disclose additional information on remuneration levels by reducing the pay bandwidths reported on to €25,000. The NTMA has agreed to this measure. On that basis, I do not accept the Deputy’s amendment.

I will now move on to my amendment in this grouping, amendment No. 79, relating to the Office of the Director of Corporate Enforcement, ODCE. The ODCE currently has an exemption from freedom of information except in regard to administrative records. I had proposed in the Bill to refine this exemption from freedom of information to only exclude from freedom of information any records relating to the office’s functions performed by members of An Garda Síochána. However, my colleague the Minister for Jobs, Enterprise and Innovation advises me that, given the nature of the work currently being carried out by the ODCE in respect of investigations relating to the IBRC and the added administrative burden that it imposes, it is not advisable to bring the ODCE more fully under the freedom of information provisions at this time, as it could potentially have an adverse impact on the office’s administrative capacity to effectively discharge its statutory responsibilities. I am proposing in this amendment, therefore, that the ODCE remain subject to freedom of information in respect of its administrative records, pending a review to be carried out after one year following enactment of the Bill. This will provide a longer lead-in time for the office to prepare for the extension of freedom of information that will apply to it in due course, during which time the nature of the exemption that might apply can be appropriately refined. It is hoped that current pressures on the ODCE - I must be careful what I say - arising from its investigatory workload will be attenuated over that period.

Amendments Nos. 80, 82 and 84 have been tabled by Deputy Catherine Murphy and are being moved by Deputy Stephen Donnelly. The Government decided that An Garda Síochána would be subject to freedom of information in respect of administrative functions subject to security exemptions. Human resources and their deployment - the point made by Deputy Catherine Murphy - and the factors and policy choices made by the Garda Commissioner and his staff in making those decisions will be encompassed by freedom of information, subject to security exemptions. In summary, therefore, the amendment is unnecessary, as it is currently encompassed by the provision set out in the Bill.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I will go back to those three issues. Amendment No. 12 refers to "receivers and administrators working for or employed by the National Asset Management Agency". I understand that in most cases in which NAMA is holding loans, companies bring in the receiver or administrator. It is done by the company with the agreement and full knowledge of NAMA, which is required to give its consent, but there are cases in which NAMA employs and appoints the receiver directly. I am talking about cases only in which NAMA appoints a receiver. That is the purpose of the amendment.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Is it concerned with the Companies Act?

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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It is under NAMA legislation. It does not concern the Companies Act. I am fairly sure the matter is not covered by companies legislation as there is specific legislation for NAMA. I am only speaking about cases in which NAMA appoints receivers, as opposed to most cases in which receivers are appointed by companies. We might seek clarification on that point.

Amendment No. 81 refers to the Labour Relations Commission.

I understand and agree with what the Minister said about the conciliation process and disputes but I would not call Croke Park II or Haddington Road a dispute. They were part of public policy, forming new pay agreements. People went into those talks to reach an agreement and not because there was a dispute. I was not aware there was a dispute and I do not believe that process would be categorised as an industrial dispute. People were invited to talk about reaching an agreement and not because there was a dispute. I am addressing those types of areas where there is not a dispute. When providing a public service on behalf of public servants, public servants are entitled to see what other public servants are getting because different letters are issued to different groups of unions or individual unions.

It is not right that Members of Parliament have not seen some of those letters. Some journalists might have them, having received them for various unions, but it is not right that the national Parliament does not have them. The trade unions involved would issue the letters to their members, so they have no problem clarifying points for their members, whether in the local authorities, the HSE or otherwise. By and large, these are letters of clarification. I want to see those included. However, I accept the Minister's general point but this is a specific one.

Amendment No. 83 concerns the terms and conditions of those in agencies under the NTMA, including NAMA, the National Pensions Reserve Fund and the National Development Finance Agency, and that they would not be partially excluded. Is this a new amendment?

7:05 pm

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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It is the first time they are being brought in.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I am surprised at the Minister. The big boys are calling the shots again. They should have been told where to go. Most people agreed with what the Minister did in bringing down the pay of the chief executives but it is galling-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The chief executives did not agree.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I said most people, although there are some who would not agree. Once again, NAMA and the NTMA have got out of it. This is not good enough. Let us look at what the NTMA does. One could say that for the past three years, while the troika was in town, it had very little work to do. It was not raising the level of funding on the market that it had been raising. I know it might have had to roll over funds but in terms of pressure, it had the comfort of troika funding and did not have any of the difficulties it would have had if it had been in the open market over the past three years. One would have to convince me that its workload was anywhere near what it would normally have been. We are now coming out of the troika bailout. How did the NTMA survive up to now? Who is putting pressure on-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The NTMA was not encompassed at all under FOI.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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The NTMA is being partially included but the Minister is excluding the terms and conditions of the senior executives.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Except in so far as we have outlined.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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That is not good enough. The Minister might explain why the terms and conditions are being excluded. I think the Minister's instinct was not to accept it but it was forced on him by the Department of Finance. If the Minister had his hand on this, he would have told them where to go and we would have supported him in that. I have no doubt we will vote on this amendment.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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All I was seeking to achieve was that it would be covered. I am satisfied with that.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I thank Deputy Murphy. It is encompassed and I hope it will be satisfactorily dealt with when the questions are asked but we need to get the legislation enacted first. I genuinely do not want to make any political points about this but this is pushing back a huge set of boulders against a degree of resistance and it is an extremely good platform to have. We will not agree on every aspect of it but I think we are coming at it from the same direction. This is not absolutely perfect from every degree and no doubt there will be an amending Bill some time in the future. Please God, I will bring one in. However, it is an extraordinary advance on where we were and where we are now.

In regard to the NAMA agent, the independence of a receiver or an administrator from a lender is dictated by statute - by section 149(1) of the National Asset Management Agency Act 2009, section 108(2) of the Land and Conveyancing Law Reform Act of 2009 and section 316(a) of the Companies Acts 1963 to 2012. As I already indicated, they are independent in the carrying out of these designated legal functions.

In regard to the LRC and the letters, I think Deputy Fleming acknowledged that it is a rather big sledge hammer to crack a particular bone - I am mixing my metaphors - to bring the LRC under the ambit-----

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I do not-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I do not think Deputy Fleming really wants that.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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No.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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He wants to make a point in regard to the letters. I have to take advice on whether those letters would be part of the administrative release. I have asked for clarity on that and I will come back to Deputy Fleming on Report Stage. I think they may well be and if they are, it will be the first time such letters are released.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I accept that.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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They were not released under the Croke Park agreement and the other national agreements prior to this. It is in that context that they were not released on this occasion but I will clarify that matter for the Deputy on Report Stage.

I have to be more circumspect in what I say about the terms and conditions of those in the NTMA. Deputy Fleming is right that my instinctive position is that we should know what everybody on the public payroll is paid. However, there are real difficulties in ensuring everything works the way it should and that we get people like those in the NTMA who are doing a cross-sectional and a very important set of jobs for the State in challenging times, despite what the Deputy said that they have had nothing to do for the past three years. I am afraid if they were here-----

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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They had a lot less to do.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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-----they would have an awful lot to say about that. I do not want to exaggerate it but there are always countervailing pulls on them to work elsewhere. If we are to get people of the quality we need to do this really specialist work, we need to be able to pay rates that will hold on to them. What we have got in direct negotiations is that we will have the information released at least in bands, so we will know what they are paid in bands of €25,000 which is an improvement on where we are. Incrementally, we will get to the full situation so that we know to the euro what people are paid.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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From where is the resistance coming, other than the people who are receiving the payments? I know the Minister will not comment and that this legislation is as a result of a collective Cabinet decision but I can understand his instinct is to say what they are paid. However, they have said they do not want that to happen. The Minister gave his answer in his press release on the publication of this legislation in that he said "on foot of contacts with the Minister for Finance". He is essentially saying that-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The Deputy is right. The Cabinet acts collectively and we debated this in detail. We make a decision to do right by the State. If I was convinced it would do no harm to have full disclosure on these matters, that is what I would push for but I accepted the arguments and the presentations that we need to ensure we have these people and that this is as far as we can go at this stage.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I accept several paragraphs in the same section and I know Deputy Donnelly had a different view and wanted them excluded. I accept investors are going to invest, that company funds are potential investors and that purchasers are potential purchasers of assets.

I could have included that but I felt, in the interests of the Irish taxpayers, that good commercial practice might be compromised if all of that was subject to freedom of information requests. I accept that point. I was honing in on ---

7:15 pm

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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This is virgin territory, remember.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I accept that.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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These were excluded entirely up to this point.

Amendment, by leave, withdrawn

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendments Nos. 13 and 15, in the name of Deputy Donnelly, are related and will be discussed together, by agreement.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I move amendment No. 13:


In page 16, between lines 7 and 8, to insert the following:
“(i) any body within the meaning assigned to “public authority” by S.I. No. 133 of 2007 (as amended by S.I. No. 662 of 2011).”.

Deputy Murphy will speak to this amendment.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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A statutory instrument gave effect to the Aarhus Convention in 2011 and there could be two different interpretations of that statutory instrument. This amendment proposes a way to bring them into line and relates to access to environmental information. The statutory instrument gave effect to that but it seems that two different things will be stated in two different locations. The aim here is to achieve a single response in the context of accessing environmental information.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendment No. 15 is being discussed as well. Does Deputy Murphy wish to speak to it?

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I wish to speak to amendment No. 15, which really deals with the same issue but elaborates further on it. It was put forward by the environmental pillar but goes beyond environmental issues in terms of freedom of information. It refers to public bodies, not excluding the semi-State bodies. The particular concern of the environmental pillar is that the semi-State bodies have an enormous impact on our natural environment, our amenities, on biodiversity and other important areas of public interest. To exclude organisations like Coillte, Bord na Móna and others is unacceptable in their view and I completely agree with them. We have debated at length at other committees, for example, the goings on inside Coillte, notwithstanding the fact that many of us campaigned against its privatisation. There are real issues involved here. I do not see a good reason for their exclusion. The Minister has argued that it is about commercial sensitivity and competing in a commercial environment and so forth but that is not a good enough reason to insulate these very important bodies, which have such a huge impact on our society and our environment, from the provisions of the freedom of information legislation. This amendment has been tabled in that context.

I wish to make a philosophical point regarding our earlier discussion with the Minister. The inevitable logic of the Minister's argument is that if an entity or body is operating in a commercial environment, secrecy is justified. That means that the more we commercialise areas of endeavour in the economy, the more secrecy we have and the less access ordinary members of the public have to information. To put it in very simple terms, it means more privatisation, more secrecy, less accountability and less information. The Minister's argument is an admission of that. He is admitting that privatisation equals secrecy, lack of public oversight and an erosion and undermining of democracy. I believe that is actually the case but surely that is not something we should accommodate. Surely we should be doing the exact opposite of accommodating the proposition that commercial activity insulates commercial entities from any requirement to be properly accountable, transparent and open to scrutiny by members of the public.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The definition proposed by Deputy Murphy and supported by Deputy Boyd Barrett is based on the definition set out in the access to information on the environment regulations which transposed the requirements of EU Directive 2003/4/EC on public access to information on the environment, known as the Aarhus Convention. The definition in the convention and the regulations was left deliberately broad to ensure the widest possible access to environmental information. There is a balance to be struck between providing legal clarity for both requestors and the public authority or body carrying out public services, and providing the widest possible access to environmental information.

Issues have arisen. There were instances where, in the context of the access to environmental information regulations, entities have argued that they are not public bodies, with the determination ultimately being left to the courts. I understand that litigation is currently pending in that regard. The rulings of the Irish courts and the Aarhus Convention compliance committee suggest that the access to environmental information regime could potentially encompass bodies which would not be perceived as "public" in the ordinary course in that they carry out commercial activities and may even, in some circumstances, encompass private companies which also perform some environmental functions and hold environmental information. While ensuring access to environmental information is necessary, providing access to the wider suite of information and data held by bodies involved in commercial activities or by private companies will damage their competitiveness, in my view.

I believe that my own definition of a "public body", as provided for in this Bill, is more precise and ensures that both the requestor and the public body know what we are talking about. The definition strikes a balance in determining and clarifying which bodies are actually encompassed by freedom of information, given the various competing considerations I have already outlined. The Freedom of Information Bill already provides the power to bring non-public bodies which are funded by the Exchequer, directly or indirectly, under the remit of the legislation. It is my intention to work with the various Departments to determine which of these bodies should fall within the remit of the Bill in due course. I would also welcome the advice of this committee in that regard, following the bedding down of the swathe of public bodies that will be encompassed immediately after the enactment of this legislation.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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We have rehearsed this argument and will return to it again on Report Stage. Environmentalists have been at pains to tell me that very often the definition of "environmental sustainability" that is used in political parlance, in the Dáil and elsewhere, is so narrow as to reduce its meaning to nothing. When sustainability is defined by the EU in various environmental directives and at the conclusion of environmental summits, like the Rio summit in 2012, it is a very broad definition that takes into account the impact, at every level, on society and on communities because that is the environment. The environment is not just the fish in the sea or the level of pollution in the air. The environment is, literally, everything and that is how it is defined. It is not just me or Irish environmentalists who are saying this.

That is how it was defined at the Earth Summit in Rio and is defined in EU directives. The point being made by environmentalists is that the companies the Minister is exempting have enormous impact on our society and the environment in the broadest sense and therefore to insulate them on the grounds that they are engaged in commercial activity would be a massive blow to the campaign for environmental sustainability in the official and proper meaning of that term.

7:25 pm

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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I am curious about how this European directive is handled elsewhere. One of the commitments in the programme for Government was that these directives would be expressed in primary legislation. It is sometimes quite difficult to wade one's way through statutory instruments. It seems that we comply with the European directives but when one tries to apply them - for instance in the case of the directive on wind farms, and I am in favour of wind energy, where the communities must be consulted - the consultation almost happens after the land has been purchased and contracts have been signed with land owners. In terms of how it functions, it does not mean in practice what it is intended to mean. That is a reasonable example of what happens even when one gives the maximum amount of cover to what the declaration is supposed to mean to the general public. I would like to hear from the Minister how his definition improves it if it does not specifically deal with it and name it.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I listened to Deputy Boyd Barrett's point and he is correct. We all impact on the environment. I was in Rio and as the then Minister for the Environment I attended the five year review of the Earth Summit, known as Rio plus 5 in 1977. I understand the scale of what was agreed at the summit. The broad stroke has to be written into legislation that is practical and meaningful. As I said one cannot encompass everything on an issue like this. We have spoken about access to environmental information which is a separate issue. As to how the remit of FOI relates to public bodies, we have to be clear as to what is encompassed and what is not encompassed. I have given members my views on the bodies that should be excluded and the reason for that. We should not view this legislation as the only game in town - there are very extensive moves in this area, in particular from the European Union on environmental information, company legislation, oversight and company law, which is becoming ever more rigorous. This Bill is complicated enough without trying to solve every problem.

I am taken by Deputy Murphy's question. I believe we need to craft a Bill that is practical and that people know the meaning of it when we are finished. The definition I have is clear and understandable as opposed to one that is subject to interpretation, as one does not know the precise outcome of it. I do not think that is the wise way to go.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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How stands the amendment?

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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I may come back to it on Report Stage.

Amendment, by leave, withdrawn.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I move amendment No. 14


In page 16, between lines 7 and 8, to insert the following:“(i) This Act shall extend to—
(i) a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies,
(ii) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor,
(iii) any tribunal or other body or individual appointed by either or both of the Houses of the Oireachtas to inquire into specified matters, and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed, or
(iv) any record in so far as it relates to the general administration of a tribunal.”.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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The effect of this amendment is to extend the areas to be covered by the Bill to tribunals to which the Tribunals of Inquiry (Evidence) Act 1921 applies. The proposed amendment could hold for any tribunal that is set up. We know that a rake of tribunals have been the subject of considerable controversy and have generated extreme public anger and annoyance as a consequence of the amount of money expended.

The specific groups that prompted me to ask Deputy Donnelly to table this amendment gave evidence to the committee at the pre-legislative stage. These included groups and organisations representing asylum seekers and refugees who are very concerned by what they see as the shroud of secrecy that exists around the asylum process and appeals. They want the Refugee Appeals Tribunal to be subject to requests under FOI so that they could get information. They have also proposed areas such as Refugee Applications Commissioner, the Garda National Immigration Bureau, the naturalisation and immigration-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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They are included.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Okay but will the Minister consider including the Refugee Appeals Tribunal and tribunals in general?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Not tribunals to which the Tribunals of Inquiry (Evidence)Act 1921 applies, but the appeals bodies and so on that the Deputy raised.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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What about tribunals in general?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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As I said, the amendment is to the definition of public bodies, which is unnecessary in that tribunals are entities established under statute and appointed by Government and are encompassed by this FOI legislation, unless specifically exempted or excluded, which they are not.

The real issue, as I understand it, is that amendment No. 14 goes back to the Tribunals of Inquiry (Evidence) Act 1921. Section 42(e) excludes records relating to tribunal inquiries, other than in limited circumstances, such as general administration. This exemption means records of tribunals of inquiry or commissions of inquiry were already excluded from the remit of FOI in section 42; the relevant provisions contained in sectoral legislation in the actual bodies that set up the tribunals of inquiry are being reconsolidated into this legislation.

Obviously there is a public interest in excluding FOI, where the tribunal is deliberating. One needs to give the tribunal scope to do that and that is what the actual crafting of legislation does, as it must be allowed to weigh confidential information and decide whether it should in the public interest be published or not. The efficiency of the whole tribunal process would be undermined in circumstances that FOI requests could be made on a selective basis during the work of tribunals. This would have the effect of allowing the tribunal's inquiries to be reviewed and its conclusions second guessed on the basis of selected records being requested or released. It is also likely that individuals would be discouraged from providing confidential information to tribunals, were this information in the FOI domain. For those reasons I do not think that tribunals of inquiry should be encompassed. It was never envisaged under the base legislation that they would. In conducting their work, they weigh up evidence and determine truth because much of what they get is not true and some of it is contradictory. A judge or whoever is the authorised person under law makes that determination at the end of the day.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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So, the Minister is saying yes, but not during the deliberation phase.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I am saving never. It is a matter for the tribunal itself. Obviously one cannot have persons saying they do not agree with the conclusions of the tribunal so that they will selectively ask for information and release of documentation that supports their view.

The idea is that all data are presented to a tribunal, weighed impartially by it and it comes to conclusions.

7:35 pm

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I will think about what the Minister has said.

Amendment, by leave, withdrawn.

Amendment No. 15 not moved.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendments Nos. 16, 17 and 20 are related and may be discussed together.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I move amendment No. 16:


In page 16, to delete lines 11 to 23.
The point of these amendments is to remove the power of the Minister to add bodies to the list of exempt public bodies. I hope I am wrong, but my reading of the legislation is that once the line Minister has agreed that the Minister can add whatever public body he or she wants to add to the list of exempt bodies, there is no compulsory parliamentary and commissioner oversight. Is that a correct reading of the legislation? If it is, I do not think that is healthy.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Section 6 of the Bill contains a generic definition of what constitutes a public body, a definition we have already discussed. This will include the widest possible definition of public bodies, including a number of significant high profile bodies which previously were excluded. We have referenced some of them. Furthermore and more importantly in the context of the Deputy's amendment, all such bodies will be automatically included, unless specifically exempted. This means that new bodies created in the future will be automatically included. Section 6 provides that the Minister may, by order, specify the inclusion or exclusion of bodies or elements of bodies, whether new or existing, within the remit of FOI legislation. There may be cases in the future when there would be a clear and justifiable reason some bodies should not be included within the ambit of FOI legislation; therefore, we need a legislative basis to deal with this possiblity. They would be included automatically, but to exclude them, an affirming resolution of the Dáil would be required. Does that answer the Deputy's question?

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I am seeking the deletion of subsection (3)(a) which reads:


The Minister may, with the consent of such other (if any) Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister of the Government, and having consulted such committee of the Houses of the Oireachtas as he or she considers appropriate, having had regard to the matters specified in subsection (4), by order declare that subsection (1) shall not apply to any particular public body to the extent specified in the order.
As I read that paragraph, it allows the Minister to say any body he or she wishes is exempt from FOI legislation.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The Deputy will note that subsection (7)(c) reads:


Where an order is proposed to be made under paragraph (a), a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Subsection (7)(a) provides that the Minister may, after consultation with the commissioner and such committee as he or she deems appropriate-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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That is not what I read.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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The paragraph to which it refers is not the one to which I am referring.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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All such exclusions would require a vote.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Where is that stated?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I will find the exact reference for the Deputy. We will examine the issue, but that is the intention. If it is not crystal clear, we will make it so.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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In order that I am crystal clear, what the Minister is saying is that the order made under subsection (3)(a) which provides that the Minister may exempt a body must be ratified by a vote of each House of the Oireachtas.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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That is what is stated in subsection (3)(a), but if it is not clear, we will make it so.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Subsection (7)(c) states reads, "Where an order is proposed to be made under paragraph (a)...". That would normally refer to subsection (7)(a).

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I will have the matter clarified.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Does the Minister believe it should be included under subsection (3)(a)?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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That is my intention.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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May I ask the Chair for guidance on how we proceed?

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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The way to proceed, as both the Deputy and I are ad idem on the intent, is that I will ask the Office of the Parliamentary Counsel to check the point. If it is not captured, I will make sure it is before Report Stage.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Okay. As it is late, I ask the Minister to bear with me. What he is saying is that-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Nobody can be excluded without there being a vote in the House.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I ask the Chairman whether I should withdraw the amendment? What is the appropriate way to proceed?

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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The Minister has stated his intention. What we will seek is clarification when we proceed to Report Stage.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I suggest the Deputy resubmit the amendment on Report Stage and I will deal with it then.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I thank the Minister for the clarification.

Amendment, by leave, withdrawn.

Amendment No. 17 not moved.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I move amendment No. 18:


In page 16, to delete lines 34 to 37 and substitute the following:"(5) Where a dispute arises as to whether subsection (1) applies, or as the conditions arising by virtue of that subsection, the dispute shall be
submitted to the Commissioner, whose determination shall be binding.".
Under the EU directive on environmental regulation, in terms of FOI legislation, the power to make a ruling where a dispute arises sits with the commissioner. On the basis of what the Minister has said, perhaps it is referred back to the Houses of the Oireachtas. Actually, as the dispute, ultimately, would be resolved by the Oireachtas, perhaps this is no longer necessary either. The legislation provides that if a dispute arises, ultimately, the Minister will still decide, whereas under environmental regulations, it is the commissioner who decides.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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This is a dispute between the Information Commissioner who is a party to the dispute-----

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Yes.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Obviously, the Information Commissioner cannot decide if he is a party to the dispute.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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The Minister is the other party to the dispute.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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No, a public body.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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But the public body-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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If the public body and the Information Commissioner are in dispute-----

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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The Minister will decide.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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Yes.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Okay. My understanding is that in regard to environmental regulations, the ruling from the European Union is that-----

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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This construction was made at the request of the Information Commissioner.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I thank the Minister.

Amendment, by leave, withdrawn.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendment No. 19 has been ruled out of order as it involves a potential charge on the Exchequer.

Amendment No. 19 not moved.

Amendment No. 20 not moved.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I move amendment No. 21:


In page 17, between lines 14 and 15, to insert the following:"(8) A regulated financial service provider within the meaning of section 2 of the Central Bank Act 1942 shall not be deemed to be a public body by
reason of the exercise of supervisory, regulatory or resolution powers over that provider by the Central bank of Ireland or the Minister for Finance.".
The purpose of this amendment is to exempt regulated financial service providers from being public bodies for the purposes of FOI legislation and, therefore, ensure they remain outside the scope of the Bill.

This provision avoids any doubt that a regulated financial service provider would become a public body on the basis that it was directly or indirectly controlled by the Central Bank of Ireland or the Minister for Finance by reason of the exercise of supervisory, regulatory or resolution powers over the entity. As much as any commercial State body, financial institutions in which the State has a majority shareholding would be subject to an uneven competitive market environment if they were found inadvertently to be subject to freedom of information legislation relative to their private competitors. This exemption has been drafted to seek to ensure it encompasses any future situation in which a financial institution might be perceived to have come under State control.

Amendment agreed to.

Section 6, as amended, agreed to.

SECTION 7

7:45 pm

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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As amendments Nos. 22, 24 and 25 are related, they may be discussed together.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I move amendment No. 22:


In page 17, to delete lines 20 to 22 and substitute the following:"referred to in subsection (6) and the need for such entities to adhere to the principles of transparency and accountability in government and public affairs as respects those of their activities as are relevant to subsection (6), by".
Section 7(6) lists the types of entities that can be prescribed as an freedom of information body for the purposes of the Bill by order. It became clear that there would be a benefit in extending the list to include bodies which might not receive public funding but which were controlled directly or indirectly by bodies that received public funding or were otherwise covered by the criteria for prescribed bodies. A situation might arise where it would be in the public interest for the Minister to prescribe such a body as an freedom of information body. Amendment No. 25 achieves that change. Amendments Nos. 22 and 24 are technical amendments consequential of that change.

Amendment agreed to.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendment No. 23, in the name of Deputy Mary Lou McDonald, has been ruled out of order as it involves a potential charge on the Exchequer.

Amendment No. 23 not moved.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I move amendment No. 24:


In page 17, line 41, to delete "Without prejudice to the generality of subsection (1), the Minister" and substitute "The Minister".

Amendment agreed to.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I move amendment No. 25:


In page 18, to delete lines 12 to 15 and substitute the following:"(c) a subsidiary (within the meaning of the Companies Acts) of, or any entity directly or indirectly controlled by, an entity referred to in this subsection;
(d) an entity (being a body corporate) that directly or indirectly controls any entity referred to in this subsection.".

Amendment agreed to.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I move amendment No. 26:


In page 18, line 29, to delete "shall be" and substitute "shall".
This is a technical amendment to correct a typographical error.

Amendment agreed to.

Section 7, as amended, agreed to.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Amendment No. 27, in the name of Deputy Mary Lou McDonald, has been ruled out of order as it involves a potential charge on the Exchequer.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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Was that amendment ruled out of order also?

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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These decisions are made known to me after they have been decided.

Amendment No. 27 not moved.

Section 8 agreed to.

Sections 9 and 10 agreed to.

Amendments Nos. 28 and 29 not moved.

SECTION 11

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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As amendment No. 30 and amendments Nos. 76 to 78, inclusive, are related, they may be discussed together.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I move amendment No. 30:


In page 24, between lines 33 and 34, to insert the following:"(d) the principle of public ownership and right of access to a genealogical heritage and the need to facilitate, as far as is practicable, the undertaking of family history, biographical, historical and related research,
(e) in this section, "genealogical heritage" means the collective wealth of records which enumerate the descent of all persons, whether living or deceased, from their ancestors by recording specific life events.".
This amendment was initially proposed by Deputy Catherine Murphy. I think this issue has been discussed, although the amendment may not have been.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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The intent was discussed.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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We have discussed the issue of genealogical records.

Amendment, by leave, withdrawn.

Amendment No. 31 not moved.

Section 11 agreed to.

SECTION 12

Amendment No. 32 not moved.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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As amendment No. 33 and amendments Nos. 47 to 52, inclusive, are related, they may be discussed together.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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I am sorry to interrupt, but I would like to raise a procedural issue.

Photo of Mary Lou McDonaldMary Lou McDonald (Dublin Central, Sinn Fein)
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This is the amendment with which we have a problem.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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It will take us a long time to tease it out.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I do not think we have time to get into this amendment this evening.

Photo of Brendan HowlinBrendan Howlin (Minister, Department of Public Expenditure and Reform; Wexford, Labour)
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I think the Chair is right.

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Independent)
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Yes.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I propose that we resume our consideration of the Bill on amendment No. 33 tomorrow. Is that agreed? Agreed.

Progress reported; Committee to sit again.

The select sub-committee adjourned at 8.55 p.m. until 4 p.m. on Wednesday, 13 November 2013.