Speech: Freedom of Information Bill 2013

I am delighted to have an opportunity to speak on this particularly important and sensitive piece of legislation.

I can reminisce on all the times that some of us spent on the other side of the House, which happens to be vacant, and to remember the number of occasions on which we were excluded from access to information which was urgent, relevant and relative to the running of the country. I remember being the victim of expulsion from this House on numerous occasions in the period between 2002 and 2007, and after that, purely on the basis of being refused access to information to which I was legitimately entitled and which referred to public expenditure and information which would enable a legislator do his or her job better.

Deputy O’Donovan made reference to Deputy Finian McGrath’s contribution which I viewed on the monitor. No doubt it was interesting. I remember, following the 2002 general election when it became obvious that the incoming Government decided to tighten up the avenues of information, both outside and inside the House, being on a programme where somebody quoted James Joyce and I thought that Seán O’Casey was more appropriate: “The blinds is down, Joxer, the blinds is down!” The blinds came down then, really and truly, and they put a curtain over the ability of the Opposition and the general public to get information. One could have the information afterwards but one could not inquire about it. It was sad that so much happened in that period which was relevant and for which the people are now paying the price, and that we could not gain access to the information. We were shunned. In fact, this House became an area where less information was made available than ever before and whatever chance there was of gaining information outside of this House through freedom of information, there was no chance inside the House at all. That is sad to say. It is probably a criticism of myself and of everybody else, and we can say we could criticise the system, but the legislation to amend and restrict the Freedom of Information Act 1997 at that time was introduced by the Government of the day. Nobody wants to accept responsibility for it now and the empty benches opposite are a fitting testimony to the fact that they do not wish to debate the issue.

When the history books come to be written, people will look back on that period and they will be able to re-examine all the occasions where information, that should have been made available, was available but was not made available to the general public or to the House of Parliament. I draw the distinction here. Meaning no disrespect to the general public in respect of freedom of information, information must always be available to the House of Parliament. That is particularly pertinent at present when the Opposition suggests on a regular basis that there has been no Government reform and we are operating a secret society. “They do not know where they are,” is the answer to that question. If they were here during a previous regime, they would know exactly what was happening and they would know the vast difference between then and now. There are now put in place numerous ways of involving the Opposition in the running of the country and getting information at an earlier stage. First, on parliamentary questions, on a regular basis it was obvious that a Member on that side of the House could get 20 questions refused every day on the basis that the Minister had no responsibility to the House for the matter, and the only hope was to go outside the House and try to get the same information through the Freedom of Information Acts, and it should not have been so. The information must be available to parliamentarians in order for them to do their work and to make a worthwhile contribution to the debate, but at that time it was snuffed out. Nobody accepted responsibility for that. Everybody thought it was great fun, and a laugh. They see the price we paid for it. When I hear criticism coming from that side of the House as to a lack of openness, lack of information and lack of participation in the procedures, I must smile to myself because if they were sitting on the Opposition benches during the period to which I refer, they would have got no information and would not have been included in anything and their only hope would have been to appeal through freedom of information, and then that was snuffed out as well by virtue of what happened after the 2002 general election. It is so sad to see what happened and how it happened, and to see the way that Parliament was side-stepped in that time.

Incidentally, in the context of the debate that continues to take place, the present Government rightly involves the Opposition, through the committees, in taking submissions and listening to Members’ views prior to a Bill coming into the House. That did not happen previously. One or two former Ministers were helpful, but they were the exception rather than the rule. It is so sad that the Members on the other side of the House, who still remain absent, do not acknowledge the fact that the changes have taken place. The shock of being in opposition is too much for them. Sadly, they would like to be able to control, the way they did when they were in government. They feel that they should still be controlling and have their hands on the tiller guiding the ship, when they guided it onto the rocks previously. It is a sad reflection on society as well that society allowed them to do that. Society approved it more than once. On three occasions, society approved that. When blame is being apportioned for what went wrong in this country, we should remember that it was not because the House was not present, it was not because the Members were not present and it was not because the Opposition was absent, as it is now. It was because the Opposition was snuffed out, manacled, silenced and gagged.

Apropos of looking for justice in the context of the present debate on the Seanad, Parliament has always been where the debate takes place and should take place. It is not a matter of whether the Opposition or the Government has the most influence. It is the degree to which that debate takes place and the Members of the elected body have access to and the right to have that debate. If the debate takes place in the normal way that it should, then the public can make up its mind afterward. If the Members of the House have ready access to the information that they need, then the debate can take place and it is a worthwhile debate. If, however, they have no access to information, if the areas of information are sealed off from them, then they cannot have an informed debate and it does not work. I would pay tribute to the Members of the other House who have always used their experience and expertise to further examine the legislation in so far as they saw it. While they do no have access to parliamentary questions, they have access to debate, which they have conducted effectively and repeatedly.

The amazing point about it is that while people have always known that information is power, one must have the information and the means of getting it. In so far as public representatives are concerned, we are really caught in an area almost like a spotlight. We are caught by the right to use the Freedom of Information Acts to gain access to information, which we should not have to do. As Members elected to a House of Parliament, we should be able to get that information readily without any difficulty at all and information that is available outside of that by whatever means should be equally readily available to us. However, there are increasing instances of where the Data Protection Commissioner appears on the scene and states that a Member cannot ask a question, needs permission from the constituent to ask it or needs permission from the body to ask it, and that is untrue. Members have the right to raise any question, on behalf of anybody, for or against a matter, and to be able to do so without reference to data protection or otherwise – hence, the necessity for Parliament. There is increasing evidence to suggest that Members are being restricted in the degree to which they have access to information or the right to make representations on behalf of groups or individuals.

It is a very important issue which I have brought to the attention of the Data Protection Commissioner many times in the past, as have other Members. Nobody has the right to restrict the ability of a Member of Parliament to represent his or her constituents whether it be to gain information, to give information or whatever the case may be. I ask the Minister of State that if any additions are made to the Bill it should be remembered that Members of Parliament are given their permission to represent on the day they are elected. If they abuse the system then the public will deal with them but they need to have the right to raise questions about bodies or individuals with impunity otherwise they are restricted in their ability to represent their constituents. I emphasise the necessity to recognise the supremacy of the Houses of Parliament; whether there be one or two Houses, the same supremacy prevails.

I have concerns about the names on the list of witnesses for the public consultation process on the draft heads of the general scheme of the Bill. The witnesses include the Minister and the Information Commissioner, Ms Emily O’Reilly and Stephen Rafferty of the Information Commission. I note a large group of journalists were listed but that is fair and appropriate because journalists are in the business of information. However, the process should not be organised in such a way as to facilitate journalists alone. I am a little concerned that there might be an over-emphasis on the necessity to facilitate journalists only. I do not see any names of public representatives listed in that group except for the Minister and I know the Minister will adequately and truly represent us. I note names of witnesses from the Anti-Deportation Ireland group, which is fine and also representatives of the newspapers. I note Mr. Ed Hammond from the UK Centre for Public Scrutiny is also a witness.

I am concerned at the over-concentration on the media in the consultation process as everyone in that group would have a similar line of thought. I would be the first in the world to respect the right of the media as well as the right of the public representatives to be able to access to the maximum amount of information in order to make a judgment on the job we do. However, we have equal rights. It was not always the case in the past that our rights have been facilitated. I refer to what happened after 2002.

I ask the Minister of State to bear in mind during the course of any further discussions of amendments that due regard should be had to the fact that we as elected Members of Parliament need to be able to at least be assured that we have equal access to information the same as anyone else inside or outside the House. I acknowledge that some information is sensitive and that there are rules governing Cabinet confidentiality beyond which we cannot expect to go. However, by the same token, we need to be sure that the information is only made available selectively. For example, I do not necessarily believe it is in the public interest for me to know private or personal information about anybody in this Chamber, even though the opposite side of the House is completely vacant and it would be impossible for me to point the finger at anyone. Such information may be of benefit to news media but it is of no benefit to me.

There is a need for the general public to be able to have some access to or knowledge of what information about individuals was held by the State. For example, I was dealing with a loan application on behalf of some unfortunate citizen in recent weeks and I discovered that the application was refused on the basis of an intervention from the Irish Credit Bureau. This body has information on every citizen in the country who ever opened a bank account or had business difficulties. I support all the current measures to create jobs and to regenerate the economy. However, this does not necessarily apply to the operations of the Irish Credit Bureau which imposes a blanket ban of five years, virtually, on any transaction for any individual who may have committed some sin of failure to pay his or her bills. This is a common practice in the present climate simply because in the economic circumstances it became very difficult for many people such as small businesses and householders, rich, poor and otherwise, to meet their commitments in the same way as previously. They should not be punished indefinitely nor should they be punished for a period of five years. The Irish Credit Bureau holds incriminating information on individuals for which they have to pay in order to access it. In my view this is in breach of freedom of information legislation and it is also in breach of the data protection legislation. I ask the Minister of State to level the playing pitch and to at least give the citizen some reasonable chance of knowing what the system holds on him or her. It is now the case that Big Brother controls everything and everybody. A new type of phone is activated by use of a fingerprint. I wonder what happens to that fingerprint and how that data is handled and to whom that information is made available and how it could be used or abused. This could and will result in the erosion of people’s rights and entitlements by unscrupulous people who access the information. I refer to the manner in which advertisers glean information of a confidential nature and use it for their own benefit and commercial use. In my time in public life I have seen countless instances of serious deficiencies in the degree and the extent to which information necessary for a legislator is made available and has been restricted. This needs to be emphasised and addressed.

I welcome the Bill which at least recognises that the blanket of secrecy that was spread over the accessing of FOI in 2002 to 2003, was not good. I remind the empty benches across the floor that I spent seven or nine years of my political life on those benches. During that period we were subjected to all those restrictions and now we hear the howls of derision from that side of the House now when they claim there is no openness and transparency and they cannot participate. They should have been here then.