Mary O'Rourke (Fianna Fail)
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The Order of Business today shall be No. 1, a procedural item which relates to No. 3 on the Order Paper and sets out the arrangements for dealing with statements on the Convention on the Future of Europe, with Proinsias De Rossa, MEP, giving a statement for up to 30 minutes, while statements from spokespersons will be five minutes and Members may ask questions; No. 2, Local Government Bill 2003 – Order for Second Stage and Second Stage, to be taken at the conclusion of the Order of Business until 1.30 p.m., to resume on the conclusion of No. 14, Private Members' Business, until 9 p.m., and on which the contributions of spokespersons shall be 15 minutes, others ten minutes and Members may share time; No. 3, statements on the Convention on the Future of Europe, to commence at 2.30 p.m. and adjourn not later than 4.30 p.m.; No. 4, Health Insurance (Amendment) Bill 2003 – Order for Second Stage and Second Stage, to be taken at 4.30 p.m. until 6 p.m., on which contributions from spokespersons shall be ten or 15 minutes, all other Senators six minutes and Members may share time. That notwithstanding, as I have found in the House, Members may speak for as long as they wish. No. 14, motion No. 25, Private Members' Business, will be taken from 6 p.m. until 8 p.m. There will be a sos from 1.30 p.m. until 2.30 p.m.

Brian Hayes (Fine Gael)
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I wish to propose an amendment to the Order of Business, that No. 2 be deleted from the Order of Business until such time as the advice the Attorney General gave to the Government is made available to Members, concerning the constitutionality of the Local Government Bill 2003. Irrespective of one's views on the substantive issue contained within the legislation, Members of both Houses of the Oireachtas have a responsibility to ensure that legislation is not repugnant to the Constitution. We have seen too many cases where the Supreme Court has overturned sections or entire Acts. It would be sensible for all Members of the House to be given the advice of the Attorney General because the Bill as proposed is suspect in terms of its constitutionality.

Will the Leader ask the Government when it intends to introduce the much-promised amending legislation for the Freedom of Information Act?

Mary O'Rourke (Fianna Fail)
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Next week.

Brian Hayes (Fine Gael)
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If that is the case, why have we not seen the colour of the Government's money? The Government will publish this Bill on Friday when Members are scattered to the four corners of the world. If the Government decision was taken yesterday, why was it not published then?

Mary O'Rourke (Fianna Fail)
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Where is the Senator going?

(Interruptions).

Brian Hayes (Fine Gael)
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The reason the legislation is to be published on Friday is that all sides of the House have some difficulty with it. This is bad law and the Government is attempting to overturn legislation that was agreed on an all-party basis in 1997. It is not good for accountability or the notion of democracy. Why can Members from all sides and people outside the Houses not see decisions that were taken five years ago? The legislation to be published on Friday is bad and this side of the House will resolutely oppose it.

Joe O'Toole (Independent)
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I wish to clarify a point I made yesterday about statutory instruments, ministerial orders and papers before the House being placed on the websites. Statutory instruments are already published on the website of the Office of the Attorney General but ministerial orders and papers laid before the House are not and there is a case for their being made equally accessible. It is also an unnecessary burden on Library staff to have to provide these in non-electronic form.

I do not have any party allegiance on the issue raised by Senator Hayes. I agree with many Government Members who will be voting the other way on this Bill. However, there is a constitutional issue and it should be sorted out. The approach seems to be similar to that which was taken to the rod licence when the Government rushed into it and tried to meet all the parties and cobble something together. It seems like rushed legislation. More time should be given to it as it will cause problems and probably face a constitutional challenge.

Senator Minihan has raised the issue of the Cork School of Music on a number of occasions in recent months. It has wider implications for the development of public private partnerships – it is a vote of no confidence in the system. This will be a vital cog in the building of bridges, roads, schools and hospitals. This is the only country in western Europe where there is agreement among the social partners on a way of approaching PPPs that addresses everybody's needs, responsibilities and rights. The Minister for Finance should come to the House to answer the questions raised by Senator Minihan and others in other fora. He must tell us what the Government is doing in this regard. Every time an Adjournment matter is tabled regarding the provision of a new school etc., the bad handling taking place could impact negatively upon these matters. I would like a full debate on the issue with the Minister. While I know he is fully supportive of the PPP initiative, there seem to be officials in his Department who take a different view.

Brendan Ryan (Labour)
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I support the remarks of Senator Brian Hayes on the Local Government Bill; the Labour Party shares the views of his party. This is too profound an issue to be entered into without seriously considering the constitutional issues. The idea that individuals could be precluded from participation in elections because of membership of the Oireachtas is full of constitutional implications. The idea that the people would have a reduced choice—

Martin Mansergh (Fianna Fail)
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It happens for the European Parliament elections.

Brendan Ryan (Labour)
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The fact that things are done wrong once does not justify them being done wrong twice. Senator Mansergh of all people should understand the way the world is organised.

Rory Kiely (Fianna Fail)
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Will the Senator, please, stick to the Order of Business?

Brendan Ryan (Labour)
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I did not interrupt myself.

Mary O'Rourke (Fianna Fail)
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That would have been very difficult.

Rory Kiely (Fianna Fail)
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While I do my best to ensure there are no interruptions, I would like to Senator to speak on the Order of Business.

Brendan Ryan (Labour)
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With all due respect, the reprimand ought to be directed elsewhere.

Yesterday the Data Protection Commissioner was reported as being concerned about the issuing of what he described as a secret directive on data retention. Interestingly, he said the person responsible for this secret directive was the Leader of the House. Perhaps she would like to explain what he meant by this secret directive. It was a disturbing comment to hear from him.

Mary O'Rourke (Fianna Fail)
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The Senator knows the commissioner, does he not?

Brendan Ryan (Labour)
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I do not know him but I do know what his job is.

Mary O'Rourke (Fianna Fail)
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I know him

Brendan Ryan (Labour)
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I have great respect for his job. I raised the issue of data privacy on an unrelated matter yesterday morning. Sometimes Fianna Fáil does not understand these things but it is extremely important.

After the behaviour of Fianna Fáil councillors in Loughrea in rezoning land on which the motorway was supposed to be built perhaps the Government is right to introduce the Local Government Bill. Perhaps Fianna Fáil has reservations about extending the powers of local government if its function is to reward its buddies by rezoning land in advance of it being compulsorily acquired by the State for public purposes. That is the way to give local government a bad reputation.

A Bill to amend the Freedom of Information Act will be published on Friday. Surely even Fianna Fáil can appreciate the irony of the blanket of secrecy that has fallen on freedom of information. I have never known the contents of legislation to be less signalled in advance. There is also irony in the compilation of a secret report by those most inconvenienced by the Freedom of Information Act, senior civil servants, without consultation with the Information Commissioner whose budget has been cut this year. This is a statement of attitude that merits serious consideration by a House of the Oireachtas. I ask the Leader to find out the reason the Government she so ably represents has decided to be so secretive about freedom of information.

Jim Walsh (Fianna Fail)
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It is interesting to see Fine Gael and the Labour Party, which were strong advocates of the abolition of the dual mandate in the last Dáil, making a volte-face. Will the Leader consider holding a debate on the cost of insurance in general and liability insurance in particular? The long-term implications for industry and employment are seriously affected by circumstances in the insurance industry. Legal costs are a huge impacting factor in the prohibitive cost of insurance. The advocacy rather than inquisitorial approach of the court system should also be looked at. I would like to think the issue of competition within the sector would receive an airing. Is there any legislation pending in this area? This is one of the most serious challenges facing the economy.

Michael Finucane (Fine Gael)
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I support the amendment proposed by Senator Brian Hayes. I am in favour of the abolition of the dual mandate; this is my personal opinion which I have expressed within the party. I am respectful of members of my party who take a different view. I am also respectful of Senators who believe they could be dislocated from councillors, their traditional base. Senators represent constituents and should have the right to question Ministers on issues pertinent to our constituents.

I praised the Minister for Transport when the penalty points system was introduced and asked if the penalty points regarding breaking the speed limit would apply to Ministers. The National Safety Council wrote to the Garda Commissioner, Mr. Pat Byrne, asking that the points be enforced for Ministers. The Commissioner has replied indicating that he will leave it to the discretion of gardaí. This sets a very bad example. It is a major disappointment—

Rory Kiely (Fianna Fail)
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I do not think that matter is relevant to the Order of Business.

Michael Finucane (Fine Gael)
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I want to raise it because I am consistent in what I say. I raised the matter on a previous occasion.

Rory Kiely (Fianna Fail)
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Matters relating to the Garda Commissioner have nothing to do with the Order of Business.

Mary Henry (Independent)
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Legislation to establish a children's ombudsman was passed during the lifetime of the previous Government. Members on the Independent benches thought this would happen rapidly. I contacted the Department of Health and Children querying the reason this had not been done and was told it was a matter for the President to appoint the ombudsman. I doubt the delay is due to tardiness on the part of the President. Will the Leader ask why progress has not been made to establish this important position?

Kathleen O'Meara (Labour)
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I support the amendment to the Order of Business and the comments made about it. The proposal to amend the Freedom of Information Act will be strenuously opposed by this side of the House. The rush to pass the legislation is unseemly, to say the least. It is clearly an attempt by the Government to control information on its daily activities. It is also linked to the amount being spent on spin doctors and propaganda and the manner in which the Government chooses selectively to leak reports on health boards, rail reviews and other major decisions. It is a leak Government, on the one hand, and a controlling Government, on the other. This attempt to alter the freedom of information legislation will, I hope, be seen for what it is, an insidious and dangerous attempt by the Government to control the amount of information the people are getting about its decisions.

Rory Kiely (Fianna Fail)
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These are matters for the debate on the legislation.

Martin Mansergh (Fianna Fail)
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This House should try to avoid preliminary debates on legislation which we will have ample time to debate.

Kathleen O'Meara (Labour)
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Where is the legislation?

Brian Hayes (Fine Gael)
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Publish the legislation and be damned.

James Bannon (Fine Gael)
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Where is the Bill?

Brian Hayes (Fine Gael)
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Why wait until Friday?

Martin Mansergh (Fianna Fail)
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I question the argument made by the Leader of the Opposition that Members must oppose something until the advice of the Attorney General is made available to the House. When Deputy John Bruton was Taoiseach, he vigorously defended, on many occasions, the point that the Attorney General is the legal adviser to the Government and that his or her legal advice is not published. As the advice of the Attorney General is received on every Bill, it can be taken for granted that he has examined the arguments about constitutionality. It is a surprising point to raise, as I said—

Brian Hayes (Fine Gael)
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So publish it.

(Interruptions).

Martin Mansergh (Fianna Fail)
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—given that the abolition of the dual mandate in the case of the European Parliament has not been found unconstitutional. I cannot see what the issue is.

Rory Kiely (Fianna Fail)
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The Senator has made his point.

Fergal Browne (Fine Gael)
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When does the Leader plan to take No. 12 on the Order Paper? The House seems to have been forgotten by the Minister for Transport. We have not seen him for some time. There was no legislation on transport last term and none is proposed for this term. It is time the rail review was published. It is already two months overdue. Why is it delayed, given that the national spatial strategy has been published? There is chaos in Ballina as a result of the changes in the provisional licence regime introduced by the Minister who now plans to bring in driving testers from Northern Ireland and install a new IT system. While he is great at announcing changes in the media, he is not bringing forward legislation.

Rory Kiely (Fianna Fail)
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These are matters for the debate.

Fergal Browne (Fine Gael)
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We are still awaiting legislation on the taxi regulator. When will it be published?

Terry Leyden (Fianna Fail)
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I presume the amendment being discussed relates to the legislation.

Brian Hayes (Fine Gael)
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It is an amendment to the Order of Business to which we will come later.

Terry Leyden (Fianna Fail)
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An amendment to the Order of Business—

Brian Hayes (Fine Gael)
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It is called the nuclear option.

Terry Leyden (Fianna Fail)
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It is unusual practice to pre-empt the passing of legislation. There is ample time for the President to refer it to the Council of State or the Supreme Court or for any individual to challenge it.

Brian Hayes (Fine Gael)
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Perhaps the Senator will publish his legal advice.

Terry Leyden (Fianna Fail)
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Irrespective of personal opinion—

Rory Kiely (Fianna Fail)
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That is not relevant to the Order of Business.

Terry Leyden (Fianna Fail)
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Irrespective of personal opinion on the Bill—

Rory Kiely (Fianna Fail)
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The Senator cannot discuss it.

Brian Hayes (Fine Gael)
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The Senator should stick to Iraq.

Terry Leyden (Fianna Fail)
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I will revert to this when we are discussing the section.

Michael McCarthy (Labour)
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I congratulate Senator Leyden on being appointed deputy Attorney General for the Upper House.

Rory Kiely (Fianna Fail)
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That is not relevant to the Order of Business either. Does the Senator have a question for the Leader?

Michael McCarthy (Labour)
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I do. Senator Finucane raised a serious issue regarding road safety. It is, to say the least, disappointing that the Garda Commission has confirmed in writing—

Rory Kiely (Fianna Fail)
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We cannot comment on the commissioner's decision.

Michael McCarthy (Labour)
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Will the Leader of the House arrange for the Minister for Defence, Deputy Michael Smith, to come to the House to explain how much he intends to squander on a Government jet to fly him and his cohorts around the world at the expense of the taxpayer? The way the Government squanders money is a disgrace.

Ulick Burke (Fine Gael)
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Will the Leader ask the Minister for the Environment and Local Government if it is his intention to withdraw the power of local councillors to rezone land at local authority level? I pose this question in view of the outrageous decision by Fianna Fáil county councillors in Galway last Monday to rezone land on the route of a bypass, thereby jeopardising the power and goodwill of the NRA to provide funding for the necessary bypass of Loughrea. The Leader must ask the Minister to take action and make Fianna Fáil councillors face reality instead of supporting local individuals whose lands will be enhanced in value by this dreadful decision.

Joanna Tuffy (Labour)
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I support the amendment to the Order of Business. We have a duty to uphold the Constitution and not pass unconstitutional legislation. The legislation is unconstitutional. Article 15.2 does not allow a person to be a Member of both Houses of the Oireachtas. This had to be enshrined in the Constitution. How can this be done, therefore, in legislation with regard to a county councillor who is also a Member of the Oireachtas? Even the wording of the legislation, that a person cannot be elected, indicates there is a constitutional problem. If one is allowed to run, one cannot be made to give up one's seat.

Rory Kiely (Fianna Fail)
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These are matters for the debate on the legislation.

Joanna Tuffy (Labour)
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Councillors will be allowed to run for the Dáil and they will be the ones to challenge this legislation. They have a mandate from the people and it cannot be taken away except through the Constitution.

John Dardis (Progressive Democrats)
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We cannot prejudge the courts either.

Paul Coghlan (Fine Gael)
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I support the proposal made by Senator Brian Hayes who made three good points. I do not know whether the legislation is constitutional. As I am sure the Leader wishes to be helpful to the House, as she generally is, she might use her good offices to make the Attorney General's advice on this important matter available. Alternatively, the Minister could make it available to the House. Perhaps the Leader will comment on this. It is most important for the guidance of the House as there are genuine doubts on the matter.

There have been many calls in the past for a discussion on the important issue of planning. There is a huge lack of uniformity in planning and the various provisions of county development plans with regard to building on one's land, where one can build, building one off houses and who can own them, eligibility provisions and so forth. This lack of uniformity is bad practice and must be tackled by the Houses of the Oireachtas. I ask the Leader to arrange an early debate on the matter.

Joe McHugh (Fine Gael)
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I agree with Senator Brian Hayes with regard to the constitutionality of the dual mandate. I also agree with Senator Jim Walsh that our party was in favour of the theory behind the dual mandate but we are not happy with the way the Minister has presented it.

Senator Brian Hayes has already called for a debate on Northern Ireland. It is imperative that we have such a debate soon because legislation is proposed which relates to the Police Service of Northern Ireland and the Garda Síochána and which will change the landscape. We should use the debate as a foundation upon which to build and move forward. Policing is the key, not just for Northern Ireland but also for the South.

Mary O'Rourke (Fianna Fail)
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Senator Brian Hayes proposed an amendment to which many speakers referred which requests the advice of the Attorney General regarding the constitutionality of the Local Government Bill 2003. I am happy to concur with Senator Mansergh on this issue. In my many years of experience at Cabinet I know that the Attorney General's advice is sought on all legislation. No Minister would rush ahead with legislation without such advice. It appears that Deputy Ring's advice reigns supreme in the House. Perhaps he has aspirations in that regard.

Brian Hayes (Fine Gael)
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Richard Nixon spoke about the silent majority.

Rory Kiely (Fianna Fail)
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The Leader, without interruption.

Mary O'Rourke (Fianna Fail)
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Senator Brian Hayes was not silent today.

Michael Kitt (Fianna Fail)
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Richard Nixon was a bad role model.

Mary O'Rourke (Fianna Fail)
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There is a provision in the Freedom of Information Act for a review after a certain period. That is what the amending legislation will do. There is one aspect to this I do not understand. Many Senators, especially Senator Ryan, repeatedly inquired about the amending legislation. Senator Ryan had my head beaten in looking for it.

Brian Hayes (Fine Gael)
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There is a thought.

Mary O'Rourke (Fianna Fail)
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Now that the legislation is being brought forward, Senators do not appear to want to deal with it. It is odd.

Brendan Ryan (Labour)
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I will not respond to that.

Mary O'Rourke (Fianna Fail)
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I try to have legislation initiated in the House and, when I achieve this, Senators do not want to discuss it.

Senator O'Toole agreed with Senator Brian Hayes about the Local Government Bill and believed there would be a constitutional challenge to it. Anyone can challenge anything.

Joe O'Toole (Independent)
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If we know beforehand that it will be challenged, it is bad business to proceed with it.

Rory Kiely (Fianna Fail)
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The Leader, without interruption, please.

Mary O'Rourke (Fianna Fail)
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I have explained that the Attorney General gives advice on all legislation.

James Bannon (Fine Gael)
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Can we have his advice?

Mary O'Rourke (Fianna Fail)
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No. It has never been published. The former Taoiseach, Deputy John Bruton, who is a member of the Senator's party, made a definitive statement in the Dáil on the matter when some of us pressed him on it.

Senator O'Toole raised an important matter concerning public private partnerships. He was correct in stating agreement had been reached concerning the Cork School of Music when officials from the Department of Finance raised objections to some aspect of it. I do not know what that was. I am convinced that advisers lurk within the Department who are not in favour of public private partnerships. I agree with the Senator that the sooner they come out into the open, the better.

Senators:

Hear, hear.

Mary O'Rourke (Fianna Fail)
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Senator O'Toole is correct to say the Minister for Finance is wholeheartedly in favour of such developments. I do not know of any Minister who is not because it means he or she will achieve progress on projects. I always believed there was a secret room in the Department of Finance in which lurked a person who was not in favour of public private partnerships. The sooner we obtain full information on the Cork School of Music project the better.

Senator Ryan agreed with Senator Brian Hayes who appears to be very popular today. Everyone agrees with him.

Martin Mansergh (Fianna Fail)
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Not quite.

Mary O'Rourke (Fianna Fail)
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All Opposition Members agree with him.

Brian Hayes (Fine Gael)
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I think there may be Members on the Government side who agree with me also.

Rory Kiely (Fianna Fail)
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The Leader to continue, please.

Mary O'Rourke (Fianna Fail)
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I am following up on the data retention issue Senator Ryan raised and will report my findings to the House.

Senator Ryan also raised the issue of the rezoning of land by Loughrea councillors, a matter about which Senator Kitt informed me two days ago. While I do not know the full details, clearly it must be examined.

On the amending freedom of information legislation, it was implicit that a report on the operation of the principal legislation would be published simultaneously. Senator Ryan sought the Bill which will be published shortly.

Brendan Ryan (Labour)
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There was a lack of consultation.

Mary O'Rourke (Fianna Fail)
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Senator Jim Walsh raised the important matter of insurance liability and the need for a debate on it. He asked if legislation was proposed for the sector. I do not know but the debate is important and necessary. I will ask the Tánaiste if it will be possible to include it in the debate on competition which Senator O'Toole sought and which she will attend.

Senator Finucane agreed with Senator Brian Hayes and raised the issue of the National Safety Council and the letter from the Garda Commissioner concerning speeding by Ministers. One should not speed no matter what one's position, a matter on which we would almost all be of one mind. I was surprised by the letter.

Senator Henry raised the issue of a children's ombudsman. I did not know the President was to appoint him or her. The Senator must have obtained wrong information from the Department of Health and Children.

Mary Henry (Independent)
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That is what the Department wrote.

Mary O'Rourke (Fianna Fail)
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I will inquire into the matter. I did not think it was within her powers.

Senator O'Meara said there should be no rush towards amending the Freedom of Information Act. There is no such rush. Senators sought the amending legislation. I fail to understand what is the problem.

Kathleen O'Meara (Labour)
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Let us have the details.

Brian Hayes (Fine Gael)
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On Friday.

Mary O'Rourke (Fianna Fail)
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We will when we get the Bill.

Kathleen O'Meara (Labour)
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That will leave us with no time to consider it.

Rory Kiely (Fianna Fail)
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The Leader, without interruption, please.

Mary O'Rourke (Fianna Fail)
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Senator Brian Hayes said Senators would be going to the four corners of the earth. I wish they would tell me where they were going. We cannot get to go anywhere. If Senator Brian Hayes is going somewhere, he should bring a few of us with him.

Brian Hayes (Fine Gael)
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I will be here.

Michael Kitt (Fianna Fail)
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The life of Brian.

Mary O'Rourke (Fianna Fail)
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Senator O'Meara said this was a leaking Government. I am afraid it is an attribute all Governments have.

Kathleen O'Meara (Labour)
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It is selective leaking of information.

Mary O'Rourke (Fianna Fail)
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When Ministers must release good or bad news, they put their foot in the water which results in a report. They know nothing about how the information got out.

Michael Finucane (Fine Gael)
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The Leader is very honest.

Mary O'Rourke (Fianna Fail)
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That is the truth. I have practised it.

Paul Coghlan (Fine Gael)
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Now we know how it is done.

Mary O'Rourke (Fianna Fail)
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Senator Mansergh gave straightforward and welcome advice on how the Attorney General conducted his business.

Senator Browne wants No. 14, motion No. 12 on the Order Paper, which relates to the rail review, debated in the House. I would love to see that happen. Although I commissioned it, I cannot get my hands on it. There are reports in the newspapers.

Kathleen O'Meara (Labour)
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The Government should try leaking it.

Rory Kiely (Fianna Fail)
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Order, please.

Mary O'Rourke (Fianna Fail)
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The issue of the taxi regulator was raised. An interim regulator has been appointed and has powers pending enactment of the legislation.

Senator McCarthy inquired about the Government jet. I prophesy that he will be in it some day and there will not be a bother on him then.

Michael McCarthy (Labour)
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We are working on the alternative Leader of the House.

Mary O'Rourke (Fianna Fail)
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I hope the jet is big enough for his long legs. Senator O'Brien supported Senator Jim Walsh but requested that the debate incorporate all forms of insurance. It is a significant matter. We hear tales every day about hardship endured by firms and individuals.

Paul Coghlan (Fine Gael)
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I was referring to the overall provisions.

Mary O'Rourke (Fianna Fail)
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We could have a debate on the matter. Senator McHugh requested a debate on Northern Ireland.

On a point of information, Senator Feighan raised the issue yesterday of pensioners and RTE. I have made inquiries and confirm that it relates to retired members of RTE's pension scheme. I reassure the general citizenry of pensioners that it has nothing to do with them. I know Senator Feighan meant well when he brought up the matter.

Joe O'Toole (Independent)
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The matter was raised to have it clarified. It is very important.

Rory Kiely (Fianna Fail)
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The Leader has concluded. There is an amendment to the Order of Business in the name of Senator Brian Hayes. Is the amendment being pressed?

Brian Hayes (Fine Gael)
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Yes. Is it agreed to?

Mary O'Rourke (Fianna Fail)
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No, it is not.

Amendment put: "That No. 2 be deleted from the Order of Business."

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