Brendan Howlin (Wexford, Labour) | Oireachtas source

Amendments Nos. 9 and 24 relate to the Office of the President. An amendment along these lines was tabled in the Dáil and I gave it very careful consideration.

Reflecting the constitutional provisions on the President, it has always been accepted that the President and the Office of the President are beyond the normal fray and to and fro of politics. The tradition, both in this House and the other is that we do not discuss the President. My approach is in keeping with the long-held tradition respecting the status and independence of the Office of the President. All sides of the House agree this is vital to the dignity and role of the Office of the President and presidency. This is very much appreciated by the public at large.

The FOI Acts exclude records relating to the President. This obviously reflects the accepted view. The amendments before the House do not propose to remove the exclusion of the records relating to the President, only the Office of the President, but I am of the view that the smallness and intimacy of that office would make distinguishing between the President and Office of the President very difficult.

Amendments Nos. 10 and 41 seek to include the administrative functions of Tourism Ireland under FOI. The Minister of State, Deputy Simon Harris, in my absence on the closing of Second Stage, explained it is one of the North–South bodies established under the British-Irish Agreement of 1999 and given statutory effect under the British–Irish Agreement Act. Since I am dealing with aspects of the North–South agreement constantly under the SEUBP with my Northern colleague, I can confirm that we cannot unilaterally alter the conditionality of bodies established under it. This is done in a bipartisan way under the auspices of the North–South Ministerial Council. It is not within our legal remit. However, the FOI code that applies to North–South bodies is based on FOI legislation both in Ireland and the United Kingdom. Its primary objective is to facilitate access to information held by these bodies. In view of this arrangement, which ensures there is appropriate openness and transparency in regard to the bodies' activities, consistent with their status as North–South bodies, it is not possible to include them.

Amendment No. 12 seeks to include receivers and administrators, whether appointed by NAMA or other secured lenders, under the definition of "public bodies" in section 6. The receiver or administrator, as the Senator is aware, is an independent legal officer appointed to take control of and realise the assets of securing any particular loan. The receiver or administrator acts as the legal agent for the benefit of the borrower and not the lender or secured creditor. The receiver or administrator's costs are borne by the receivership and not by the lender. Accordingly, it is not appropriate to define receivers and administrators as public bodies. I cannot accept the amendment.

Amendment No. 25, tabled by Senator Barrett, would delete the reference to any of the supervisory directives and the reference to "within the meaning of the Central Bank Act of 1942". The confidentiality and professional secrecy requirements contained in and stemming from the European system of Central Banks, ESCB, statute require that similar protections be provided in domestic law. Under EU directives relating to banking supervision and the non-banking financial services industry, there is an obligation imposed of professional secrecy on the Central Bank of Ireland. In proposing to bring the Central Bank within the scope of FOI, I had to be cognisant of what is actually allowable within EU law and notify the European Central Bank in that regard. In view of these EU and Eurosystem constraints, which take precedence over Irish law, as the Senator knows, I proposed that the FOI Act be extended to the Central Bank of Ireland on a basis which excludes records relating to its ESCB-related tasks and those subject to the obligations of professional secrecy relating to financial obligations and the regulatory role under the supervisory directives of the European Union.

On this basis, it is not possible to accept the amendment.
On amendment No. 31, the Labour Relations Commission and the Labour Court are being provided with an exemption under FOI legislation to protect their functions in so far as they relate to dispute resolution, conciliation or mediation on a voluntary basis to settle disputes. It includes the role of the Labour Court, the Rights Commissioner Service and the Labour Relations Commission in resolving industrial disputes. The possibility that such records might be subject to FOI legislation would, potentially and, I think, almost certainly, undermine the value of these organisations in performing an extremely important public role. It would deter individuals, public and private bodies and the unions in participating in this 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. It is for these reasons that I do not propose to accept the amendment.
Amendment No. 32 has been tabled by Fianna Fáil and concerns the NTMA and the terms and conditions of staff. I understand fully its import. Notwithstanding the established and strong general principle that pay information on persons employed by a State body should be subject to FOI legislation - a view that I know that Senators will strongly support - I have, after long consultation with my colleague, the Minister for Finance, accepted that there should be partial exclusion. As Members will know, there is a guideline whereby bands of pay are disclosed. That is the appropriate balance to be achieved without putting at risk the potential of the NTMA and its family of companies to maintain the best category of employees. As the economy improves, the pressure to recruit such persons into the private sphere is all the greater. I have accepted the reasoned argument in that respect, but I know people will wish me to go further. It is my view that information on remuneration should be in the public sphere and I have personally engaged on this matter. It is the appropriate balance to be struck at this time.