Brendan Howlin (Wexford, Labour) | Oireachtas source

I will not comment on the specific case highlighted by the Deputy because I have no detail on it. I have no knowledge - good, bad or indifferent - of the case the Deputy instances. I will confine my response to the specific legislative provision and the amendment. Section 41, as contained in section 32 of the original 1997 Act, upholds the operation of specific confidentiality and non-disclosure provisions in other enactments - this is the very thing Deputy Fleming has been talking about - unless such provisions are listed in Schedule 3 to this Bill, in which case they are subordinate to freedom of information. Provision is made in the legislation for the review of secrecy provisions in other enactments. As the Deputy rightly identified, the members of the Joint Committee on Finance, Public Expenditure and Reform can review and make recommendations from time to time on the question of whether these provisions should be amended or repealed. If it is recommended that they should continue in force, the joint committee has the power to recommend whether they should override freedom of information or should be included in Schedule 3. That is a power of the Oireachtas at committee level. I have been informed that such a review is currently under way. It will be a matter for the committee, of which Deputy Fleming is a member, to recommend which of the non-disclosure provisions should be included in Schedule 3. That will be the committee's job.

The Act does not provide for a ministerial power to amend Schedule 3 to remove or include specific provisions. It is not a matter for me. I sought the advice of the Office of the Attorney General on the matter with a view to providing for a ministerial power to make an order which would allow Schedule 3 to be amended if a public body accepted the recommendation of the Oireachtas committee. I am advised by that Office of the Attorney General that as a matter of constitutional law, I cannot by order amend primary legislation in that way. It would be a matter for the Oireachtas as a whole. The advice of the Attorney General makes it clear that it is not legally feasible to make an amendment to an Act with the effect that decisions of the Information Commissioner should override primary legislation made by the Houses of the Oireachtas and signed by the President. As such, we must rely on the Oireachtas committee, of which the Deputy is a member, to decide what action should be taken, as provided for in section 41, and for amendments to Schedule 3 to be made by way of primary legislation if so recommended. On that basis, there is no basis for me to accept this amendment.

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