Seanad Éireann

Vol. 234 Thursday, No. 5 25 September 2014

DÍOSPÓIREACHTAÍ PARLAIMINTE PARLIAMENTARY DEBATES Seanad Éireann

TUAIRISC OIFIGIÚIL—Neamhcheartaithe (OFFICIAL REPORT—Unrevised)

Insert Date Here

25/09/2014A00100Business of Seanad ��294

25/09/2014B00100Order of Business ��294

25/09/2014K00200Freedom of Information Bill 2013: Committee Stage ��313

25/09/2014X00100Adjournment Matters ��345

25/09/2014X00150Disability Support Services Provision ��345

25/09/2014Y00950Nursing Homes Support Scheme Applications ��347

25/09/2014Z00150Seanad Elections ��349 SEANAD ÉIREANN

Déardaoin, 25 Meán Fómhair 2014

Thursday, 25 September 2014

Chuaigh an Cathaoirleach i gceannas ar 10.30 a.m.

Machnamh agus Paidir. Reflection and Prayer.

25/09/2014A00100Business of Seanad

25/09/2014A00200An Cathaoirleach: I have received notice from Senator Feargal Quinn that, on the motion for the Adjournment of the House today, he proposes to raise the following matter:

The need for the Minister for the Environment, Community and Local Government to outline the position in relation to people who are blind being able to vote in a manner consistent with their entitlement to privacy.

I have also received notice from Senator Mary Moran of the following matter:

The need for the Minister for Health to address the situation of a person (details sup- plied) who is in urgent need of a residential allocation.

I have also received notice from Senator Paul Bradford of the following matter:

The need for the Minister for Health to comment on the inadequate funding of the fair deal nursing home scheme and the recent reduction in the number of applicants being approved.

I regard the matters raised by Senators Quinn, Moran and Bradford as suitable for discussion on the Adjournment and they will be taken at the conclusion of business.

25/09/2014B00100Order of Business

25/09/2014B00200Senator Maurice Cummins: The Order of Business is No. 1, Freedom of Information Bill 2013 - Committee Stage.

25/09/2014B00300Senator Darragh O’Brien: As every day passes, in the context of the Seanad by-election 294 25 September 2014 and the appointment of Mr. McNulty - the Leader can shake his head all he wants-----

25/09/2014B00400Senator Paul Coghlan: It is becoming a bit of a-----

25/09/2014B00500An Cathaoirleach: Senator Darragh O’Brien to continue, without interruption.

25/09/2014B00600Senator Darragh O’Brien: If every Member asks himself or herself honestly whether this has been handled well by the Government, everyone will agree that it has not, leaving politics out of it. However, as every day passes, we are getting more information on this appointment. I have a few questions. I heard the Taoiseach’s interview from America. He effectively said he was the Taoiseach, that he was the leader and that he would do whatever he wanted.

25/09/2014B00700Senator David Norris: Exactly.

25/09/2014B00800Senator Darragh O’Brien: The Taoiseach has no regard for the Seanad, which is why he proposed to abolish it. He previously tried to undermine a democratic decision regarding the selection of candidates for the banking inquiry. He tried to force through a vote and interfered in the process here. Serious questions remain unanswered about what he and Fine Gael are doing in ensuring Mr. McNulty’s candidature is valid. It is an unprecedented and unparalleled stoke.

An individual has been appointed to the board of the IMMA who will not even serve on it because his qualifications do not stand up to scrutiny. What is worse is that the candidate misinformed and misled the Seanad nomination hearing by his omission of the fact that he had only been appointed a number of days earlier to the IMMA board on a temporary basis. When another candidate, Mr. Craughwell, lodged a challenge, he withdrew it on the basis that he saw from the Taoiseach a nomination paper that indicated Mr. McNulty was a member of the IMMA board. At no time during the meeting did Mr. McNulty and his election agent say he had only been appointed three days previously and that he had not met or served on the board. That is why Mr. Craughwell withdrew his challenge. Was the information available to the High Court judge who presided over and examined the applications for the nomination? Did the judge know that this individual had only been appointed to the board a matter of days previously?

25/09/2014B00900Senator Terry Leyden: Unlikely.

25/09/2014B01000Senator Darragh O’Brien: Why was the IMMA board not advised of this appointment? More importantly, has it met to ratify Mr. McNulty’s application? If one is put forward as a nominee to a board - this would happen in any company - it needs to be ratified at a board meeting. Furthermore, Members received letters this morning outlining that they would receive registered letters tomorrow with the ballot paper to vote in what is now a sham election with a sham Government candidate. This is important in the sense that the Taoiseach has again undermined a democratically elected House of Parliament and does not seem to realise how serious is this issue.

I again propose an amendment to the Order of Business: “That the Minister for Arts, Heri- tage and the Gaeltacht answer some of the questions she was asked the other day.” All I want her to outline is who asked her to appoint Mr. McNulty to the board of IMMA. Was it the Tao- iseach or someone else? Why did she appoint him when he had not even made an application?

25/09/2014B01300An Cathaoirleach: Does this form part of the amendment?

25/09/2014B01400Senator Darragh O’Brien: I am putting it in context. I formally propose an amendment 295 Seanad Éireann to the Order of Business for those who are interested in the democratic process and the integrity of this House and the Seanad by-election. No one should be fearful of the Minister coming to the House to answer these questions.

I formally request the Cathaoirleach to convene a special meeting of the Committee on Procedure and Privileges to carry out an investigation, as it is allowed to do under the legislation passed in respect of the banking inquiry - it also provides for compellability rights - and to enable elected Members of all parties and none to put questions.

I would like to clarify that I do not hold any of the staff responsible for any of this. This is the Government’s doing. This is bad, nasty, dirty party politics on the part of Fine Gael.

25/09/2014B01500An Cathaoirleach: The Senator is way over time.

25/09/2014B01600Senator Darragh O’Brien: Will the Cathaoirleach convene-----

25/09/2014B01700An Cathaoirleach: I have no role at all in the by-election.

25/09/2014B01800Senator Fidelma Healy Eames: The Cathaoirleach is Chairman of the House.

25/09/2014B01900Senator Darragh O’Brien: The Cathaoirleach convenes the Committee on Procedure and Privileges.

25/09/2014B02000An Cathaoirleach: I can call it.

25/09/2014B02100Senator Darragh O’Brien: That is what I am asking the Cathaoirelach to do.

25/09/2014B02200An Cathaoirleach: The Committee on Procedure and Privileges has no role in this matter.

25/09/2014B02300Senator Darragh O’Brien: What other forum, bar this House, is available to examine Standing Orders, for which the Cathaoirleach is responsible, and the electoral process?

25/09/2014B02400An Cathaoirleach: This has nothing to do with the House.

25/09/2014B02500Senator David Norris: Of course, it has. The Cathaoirleach is talking nonsense.

25/09/2014B02600Senator Darragh O’Brien: It has. An individual will sit in the House following the by- election.

25/09/2014B02700An Cathaoirleach: That has nothing to do with the procedures of the House.

25/09/2014B02800Senator Darragh O’Brien: I have the utmost regard for the Cathaoirleach and do not mean to delay the House, but if the by-election is allowed to proceed, an individual will be elected who is not qualified to be in the House.

25/09/2014B02900An Cathaoirleach: The House has no say in whether the man is suitable for election.

25/09/2014B03000Senator Darragh O’Brien: I have a say and all of us should have a say if we care about this House.

25/09/2014B03100An Cathaoirleach: As the Senator will be well aware, there is a process in place under the 1947 Act that has been gone through.

25/09/2014B03200Senator David Norris: The House has an obligation to oversee the procedures used.

296 25 September 2014

25/09/2014B03300Senator Darragh O’Brien: Fine Gael might as well have appointed Mickey Mouse. One could put a dog in here instead. I am asking the Cathaoirleach to convene a meeting of the Committee on Procedure and Privileges in order that we can discuss how an investigation can be carried out. I have proposed an amendment to the Order of Business.

25/09/2014B03600An Cathaoirleach: It is not a matter for the Committee on Procedure and Privileges.

25/09/2014B03700Senator Darragh O’Brien: I am seeking direction from the Chair on for whom it is a matter because if the Taoiseach is allowed to do this, all he will be doing is treating the House as his own. It is not his.

25/09/2014B03800An Cathaoirleach: That is not a matter for the Cathaoirleach-----

25/09/2014B03900Senator Darragh O’Brien: Jesus, it is absolutely. Do we not care about this?

25/09/2014B04000An Cathaoirleach: It is not a matter for the Cathaoirleach. The House makes its own decisions also.

25/09/2014B04100Senator Darragh O’Brien: Until we get proper answers, I will propose amendments to the Order of Business. I expect the Government-----

25/09/2014B04200An Cathaoirleach: I have no role whatsoever in this matter.

25/09/2014B04300Senator Darragh O’Brien: Fine. I expect the Government parties to accept the amendments. If they want transparency and to get to the truth behind this, they should bring the Min- ister for Arts, Heritage and the Gaeltacht here themselves.

25/09/2014B04400An Cathaoirleach: The Senator is way over time.

25/09/2014B04500Senator Aideen Hayden: I congratulate Deputy Ciarán Lynch, Chairman of the banking inquiry sub-committee, and all sub-committee members on the timely and speedy manner in which they have carried out their work. The final submission from the sub-committee will come before the Committee on Procedure and Privileges of both Houses and we will be in a position to debate the terms of reference of the inquiry by mid-October. It is interesting that Fianna Fáil’s finance spokesperson, Deputy Michael McGrath, has said he is satisfied the inquiry will not be a witch-hunt against his party. The acceptance of the suggestions of Deputy Joe Higgins that the inquiry should consider, for example, the role of the media is welcome because there have been allegations of a cosy consensus around the property market, given its value to the media during this period. I am sure the media will welcome this.

It is a testament to the maturity of the members of the sub-committee from both sides of the two Houses that they have worked so well together and achieved such a consensus in a short time. This leads me to understand there will be a full outcome to the inquiry during the term of this Seanad, to whcih I very much look forward. Many people lost their life savings and had their lives destroyed. Some remain in negative equity or have had their homes repossessed. We can never move forward until we know the truth about what happened, not just on the fateful night in September 2008 but during the previous 15 or 20 years. It is welcome that the inquiry’s mandate covers the period from the mid-1990s, if necessary, and that we will have the terms of reference before us, I hope, by mid-October. We have raised the issue of the upcoming budget on a number of occasions. The Budget Statement will take place in two weeks’ time. There is a lot of discussion in the media about conflicting suggestions from different bodies as to what the Government should and should not do in regard to the budget. There has been debate on 297 Seanad Éireann whether it should deal with the entire €2 billion figure, as was suggested by the Irish Fiscal Ad- visory Council, €800 million as suggested by the Nevin Economic Research Institute or, as the Minister suggested, that we have a neutral budget. My concern is that much of the debate has focused on the issue of tax breaks. I want to make a plea. I and a number of other Members are working with the NGO sector. I am well aware of the stress and crisis the sector has been under over the past number of years. It has become a cliché to refer to doing less with more, but NGOs have been doing less with more for a long period of time when dealing with very vulnerable people in situations where there are no immediate outcomes. We need to move forward in supporting the most vulnerable people rather than giving tax cuts and tax breaks to people who do not necessarily need them. On that point, I call for a debate on the wider economy and the priorities we should have in terms of a fair and redistributive society. I would like such a debate before the budget but if that is not possible it should take place shortly afterwards.

Could the Leader check the status of the Residential Tenancies (Amendment) (No. 2) Bill? I understood the Seanad would have the privilege of introducing on Committee Stage in the House the Bill on the deposit protection scheme. The loss of deposits unjustifiably is an enor- mous issue in the rental sector and often leads to homelessness.

25/09/2014C00200Senator David Norris: I second Senator O’Brien’s motion. I compliment Senator Hayden on her sterling performance on RTE radio’s politics programme last night. She made, however, one mistake. The Bill concerning the abolition of the Seanad contained no reference whatsoever to a referendum, nor was it mentioned in the explanatory memorandum. The whole thing was a fix up. I called on Members on the other side of the House to vote against the Bill because it was about the extinction of the Seanad and nothing else.

That leads me to the squalid matter of the by-election. Nothing could focus the minds and attention of the Irish people on the necessity to reform the Seanad more than this exposure. There are 225 votes and the Government side will be whipped for a candidate who is not eligible. I wonder why those in charge of the inquiry, in particular the judge, did not question the matter of Mr. McNulty’s membership of the board or his attendance-----

25/09/2014C00300An Cathaoirleach: That is not a matter for the House.

25/09/2014C00400Senator David Norris: It most definitely is. It is a matter for the election.

25/09/2014C00500An Cathaoirleach: The 1947 Act sets out how elections are conducted. There is a process which the Clerk of the House------

25/09/2014C00600Senator David Norris: I am saying it is appropriate for Members of the House to discuss the procedures for the election.

25/09/2014C00700An Cathaoirleach: The returning officer has a role and there is a judicial review process.

25/09/2014C00800Senator David Norris: We must be able to question the procedure. The system is rotten. Deirdre Clune was elected in a sham of an election, but at least it was better than this one will be. In regard to the appointment of Mr. McNulty to the board, I do not believe there has been or will be a board meeting held at all during the course of his tenure of the office which he will have to leave the minute he is elected here. It is an utter sham. He will not attend a board meeting and prating on about how his commercial expertise will be valuable to IMMA is incorrect. How will it be valuable if he is not at a board meeting and is only on the board for two weeks? It is a grotesque farce. 298 25 September 2014 The only responses of the Taoiseach was that it his right and entitlement to make such an appointment and that he can do what he wants. This matter has completely exposed Fine Gael - I do not speak of my colleagues in the House and I know their attitude towards this - in terms of reform of the Seanad. This is a ridiculous by-election and nothing could more clearly dem- onstrate how utterly inappropriate the methods of election to this House are.

The Taoiseach, in response to his defeat in the referendum, had undertaken to reform the University seats, the only democratic element in this House. He is leaving untouched the entire area which he, by his actions, has exposed as a sham and a collection of rotten boroughs. I do not think the Irish people will take to a piecemeal reform of Seanad Éireann. We now have, accidentally but clearly, a classic case for complete reform of Seanad Éireann, including its methods of voting, election and nomination. This must now be up for grabs. We cannot put up with a piecemeal approach with a vindictive and spiteful attack on the University seats and an attempt to delete them because we are the most annoying part of Seanad Éireann.

25/09/2014C00900Senator Colm Burke: I reiterate what I say yesterday, namely that anyone who runs his or her own business is competent to be appointed to any State board because such people are involved in hiring staff-----

25/09/2014C01000Senator Darragh O’Brien: He will be there for two weeks. Give me a break.

25/09/2014C01100Senator Colm Burke: I did not interrupt you.

25/09/2014C01200An Cathaoirleach: The Senator without interruption, please.

25/09/2014C01400Senator David Norris: Could Senator Burke explain how running a shop provides one with expertise in modern art?

25/09/2014C01500An Cathaoirleach: Senator Burke without interruption, please.

25/09/2014C01600Senator Feargal Quinn: I will jump up and say it is a perfect answer.

25/09/2014C01700An Cathaoirleach: Senator Burke without interruption, please.

25/09/2014C01800Senator Colm Burke: Running a business and being self-employed qualifies anyone to be involved in a board. He is an appropriate appointment to the board. In this House we seem to have forgotten that the Taoiseach appointed more Independent Senators who were not involved in any political party to this House than any previous Taoiseach.

25/09/2014C01900Senator David Norris: That is totally irrelevant.

25/09/2014C02000Senator Colm Burke: I did not interrupt anyone here.

25/09/2014C02100An Cathaoirleach: Senator Burke without interruption, please.

25/09/2014C02200Senator David Norris: The Senator could have; I do not mind being interrupted.

25/09/2014C02300Senator Colm Burke: In fairness to the Taoiseach, he has appointed people who are independent of politics and have made a fantastic contribution to this House. Let us give credit where credit is due. Mr. McNulty would have qualified for the Cultural and Educational Panel with or without the appointment to the board, and that is now quite clear. This is a technical issue. I recently heard of someone who wished to run on the Agricultural Panel but did not qualify, and bought a greyhound when then qualified the person to run on the Agricultural Panel. 299 Seanad Éireann

25/09/2014C02400Senator David Norris: The Senator is exposing more of the corruption. We should do away with this corruption and create a proper, democratic Seanad Éireann.

25/09/2014C02500An Cathaoirleach: Senator Norris you have spoken already. Senator Burke without interruption, please.

25/09/2014C02600Senator Colm Burke: I agree with Senator Norris that there is a need for reform in how we elect Senators. I am one of those who agree with him because the current panel structure comprises technical procedures and nothing more.

25/09/2014C02700An Cathaoirleach: Does the Senator have a question for the Leader?

25/09/2014C02800Senator Colm Burke: My points are in response to what has been said. There are a lot of allegations flying around. Individual panels are of a technical nature and some have questioned whether someone is fit to sit in the House. Anyone who is over 18 years of age is fit and qualified to sit in the House no matter what his or her background is, and Mr. McNulty is suitably qualified to be in the House. I look forward to his arrival here.

25/09/2014C02900Senator Terry Leyden: Senator Burke could defend the indefensible. He must have been a very good lawyer. I hope he still practices because he is certainly very persuasive. I hope the greyhound he bought was a good runner. The media are very interested in this issue, and rightly so. Today “Liveline” will probably be full of calls from middle Ireland. This difficult situation and complicated issue may have an effect on the by-elections in Dublin and Roscommon-South Leitrim.

11 o’clock

That this is regarded as an unseemly affair will probably push our candidates over the line. It is on the same day-----

25/09/2014D00200An Cathaoirleach: What has this to do with the Order of Business?

25/09/2014D00300Senator Terry Leyden: It is only right that we should add my voice to this. The point is that the closing of the ballot is on the same day as the by-election, namely, 10 October. The reaction of the people will be quite interesting. It will really be a vote on the reaction to this matter.

25/09/2014D00400An Cathaoirleach: We are not discussing that. Has the Senator a question for the Leader?

25/09/2014D00500Senator Terry Leyden: I want to say to the Leader that we should send our best wishes to the Naval Service, the Customs and Excise and the Garda Síochána for boarding the yacht Makayabella off the Cork coast yesterday. The yacht was en route from Venezuela, via Colum- bia, with drugs. It was a major seizure and we must commend all the brave naval personnel who were present to intercept the yacht. It is one of the largest drug seizures in the history of the State and probably one of the largest in the history of Europe. For every one caught bringing in drugs, there are possibly others getting through, using our coastline.

The seizure was of pure cocaine. The trouble is that the people who use cocaine are fuelling the industry in Ireland and throughout the world. Those who advocate the use of marijuana and other drugs are bringing young people into a life of drugs. Cocaine is particularly dangerous but less hard drugs are also dangerous. It is regrettable that anyone in public life and elected to the European Parliament should be advocating the use of these narcotic drugs and bringing 300 25 September 2014 young people into a life of misery. We are very fortunate to have the support of the Garda. The three suspects are now to be questioned in Cork. I hope there will be more of these seizures in the future.

25/09/2014D00600Senator Martin Conway: I agree that we need to start having a serious debate on Seanad reform. It is 17 months, at a maximum, to the next Seanad election and general election. We will not see too much reform before the next election but I would like to see constructive, positive engagement over the next year or year and a half on what should constitute Seanad reform so it can feed into the various parties’ election manifestos. By the time the last general election was called, most parties had committed to a referendum on the abolition of the Seanad. A debate should result in a commitment to reform and feed into the next programme for Government so we will see Seanad reform.

I also congratulate the Naval Service and the Garda Síochána on what was a fantastic operation off the coast of Cork yesterday. With the justice committee members, I had the pleasure of visiting the naval bases in west Cork. The work the Naval Service does is phenomenal and often not recognised. It has done a great job and certainly deserves commendation. It is good to acknowledge and recognise something positive when it happens. With that in mind, I ask the Leader to invite the Minister for Defence to the House in the coming months to discuss the Naval Service, its ten-year plan and its plan for expansion. The Naval Service does a phenomenal job and it is appropriate that the Minister should come to the House to discuss defence, particularly naval services.

25/09/2014D00700Senator Sean D. Barrett: I bring to the attention of the House the calls by the Irish Fiscal Advisory Council and Nevin Economic Research Institute for restraint in the budget debates that are taking place. Senator Hayden referred to some of the points arising. The Taoiseach rightly raised the issue of the high tax rate, which is 52% for people on average earnings of €32,000. Since he rightly raised the issue, I have received in my mailbox an incredible number of lobbying communications proposing that we spend a surplus that does not exist. There have been calls from lobby groups for more corporate tax breaks and reliefs for the property, construction, hotel and film sectors and the usual suspects. Many of these calls for unanalysed and unrestrained public expenditure come from groups that were closely associated with the boom–bust period. They certainly have learned nothing.

It is not the time to abandon caution or to give in to these kinds of lobbyists. We need a debate on the context of this budget because some of the pressure groups and lobbyists have gone completely out of control. I hear requests to double capital expenditure. That is irresponsible without proper economic appraisal, and it could jeopardise the recovery. Therefore, I ask the Leader to have a debate on this. If the Minister is preoccupied with many other matters, perhaps we should have a debate among ourselves on what the priorities should be in the budget.

25/09/2014D00800Senator Michael Mullins: I join my colleagues who have congratulated the Garda, Naval Service and Customs and Excise on the success of the major intelligence operation that culmi- nated in the seizure of the yacht off the Cork coast. The success reflects that of the Irish joint task force on drug interdiction in building strong and strategic partnerships at national and international levels. I ask the Leader to arrange a debate with the Minister for Justice and Equal- ity, Deputy Frances Fitzgerald, on how more resources can be targeted at communities to root out the drug dealers, who are the last link in the major supply chain that was cut off yesterday through the vigilance of the Garda and Naval Service.

301 Seanad Éireann Most serious crime in this country is linked in one way or another to the drugs industry and drug trafficking. If we can tackle this issue successfully, there will be significant social benefits. We all know many young lives are being destroyed by drugs, and that many suicides are linked to the use of drugs and the pressure being put on young people by those selling drugs. I refer also to drug-related deaths. There is a huge cost to our health service. If we can get to the root of the drugs problem and target resources in a strong and meaningful way, we can make considerable savings in our economy and great social improvements. I would like to see what was achieved yesterday recognised. A more targeted approach should now be taken to deal with the drugs problems in our towns and villages throughout the country.

25/09/2014D00900Senator Fiach Mac Conghail: I congratulate the Government on making a decision to develop and consult widely on a national cultural policy. It is the first time that any Government has done so. I applaud the former Minister, Deputy Jimmy Deenihan, and the current Minister, Deputy Heather Humphreys, for setting up a consultative process to develop, for the first time, a national cultural policy. However, this has been undermined extraordinarily by the actions over the past week, particularly the appointments to the board of the Irish Museum of Modern Art.

25/09/2014D01000Senator David Norris: Hear, hear.

25/09/2014D01100Senator Fiach Mac Conghail: Never has the state of our national cultural institutions been so fragile and uncertain with regard to governance and funding. We heard a couple of days ago that the National Museum of Ireland has had to close galleries. There is extraordinary uncertainty.

The articles and memorandum of association of the Irish Museum of Modern Art state that 15 members can be appointed to the board. I understand – I am saying this under privilege here today – that a letter was written to the board of the Irish Museum of Modern Art to cap its membership at nine. This means that when former councillor Jane Dillon Byrne was appointed by the Labour Party to be the ninth member of the board this summer, there should have been no more appointments.

The articles and memorandum of association refer to a membership of 15. The appointments of last week bring the number to 11. We need clarity. Are there rules? Are they being changed? If the articles and memorandum of the museum state there are to be 15 members of the board, there are four additional vacancies. However, according to a Government decision, the number of members has been exceeded. Therefore, clear issues arise over transparency, accountability and confidence. My question is whether the chairman of the IMMA was consulted about the skill set. The arts world is being crucified in terms of public funding. We are being told to raise money internationally and that philanthropy is the key, yet I assume the board of IMMA had philanthropic members ready to be appointed. I want to know whether the Minis- ter, or a previous Minister, engaged with the current chairman of IMMA to determine the skill set required by members of the board. It is something I am worried about. Next Tuesday, an Oireachtas committee will engage in pre-legislative scrutiny of the National Concert Hall Bill. Elements of that Bill are to do with centralised control by the Minister and the Government on artistic matters.

25/09/2014E00200An Cathaoirleach: Does the Senator have a question for the Leader?

25/09/2014E00300Senator Fiach Mac Conghail: I would like to invite the Minister to have a broad debate about national cultural policy and begin the process of developing a national cultural policy by

302 25 September 2014 Easter 2016, including provisions on how to enhance, strengthen and protect the independence of the national cultural institutions.

25/09/2014E00400Senator Fidelma Healy Eames: The weakness of our parliamentary democracy has been exposed by the abuse by Fine Gael and the Taoiseach of our institutions, namely, a State board and this House. The Minister for Arts, Heritage and the Gaeltacht, Deputy Heather Humphreys, came to the Chamber and I put a number of questions to her, as did others. None of the questions were answered and yesterday I wrote a letter to the Minister setting out the questions again. What obligation is on the Minister to answer these questions? This is meant to be a democracy in which we can participate and get answers. What are we here for if it does not serve that purpose? To follow up on the comments of Senator Mac Conghail, the Minister said she was in the process of drafting legislation to ensure the number of board members could be increased from nine to 11. Is the appointment of Mr. McNulty to the board of IMMA legal?

25/09/2014E00500Senator Paul Coghlan: It is governed by the articles of association.

25/09/2014E00600Senator Fidelma Healy Eames: Has the IMMA board met yet to ratify the appointment? It does not appear so. If not, was the High Court judge made aware of these facts when the nomination was queried, or was the High Court judge misled?

25/09/2014E00700An Cathaoirleach: We are not discussing the role of the High Court judge.

25/09/2014E00800Senator Fidelma Healy Eames: We are here in a parliamentary democracy looking for answers to basic questions about someone whose candidacy is up for grabs and who is about to take up a position in a few weeks. The public deserves answers, as do Members. Is there a judicial review process to review the recent judgment that deemed the candidate eligible? Can the Labour Party and the Tánaiste, Deputy Burton, stand over behaviour that appears shadier by the day?

I was sorry to hear an unconfirmed report that one of the people who had been given an indication that they might win the nomination, Samantha Long, has now submitted her resigna- tion-----

25/09/2014E00900An Cathaoirleach: That is not relevant to the Order of Business.

25/09/2014E01000Senator Fidelma Healy Eames: I regret to think there are so many victims.

25/09/2014E01100An Cathaoirleach: That is not relevant.

25/09/2014E01200Senator David Norris: It is relevant.

25/09/2014E01300An Cathaoirleach: It is not relevant.

25/09/2014E01400Senator Paul Coghlan: I have great respect for the Members opposite, including Sena- tor Darragh O’Brien, who is normally quite sanguine. I am not sure why the people opposite are getting so excited. I say that with respect. We understand well how democracy functions. Regardless of the appointment to IMMA, this man would have been more than qualified to be on the Cultural and Educational Panel. We are aware of his arts and culture work-----

25/09/2014E01500Senator David Norris: What work?

25/09/2014E01600Senator Paul Coghlan: For God’s sake-----

303 Seanad Éireann

25/09/2014E01700Senator David Norris: Will Senator Paul Coghlan specify what he has done?

25/09/2014E01800Senator Paul Coghlan: He is involved in everything in Kilcar, County Donegal.

25/09/2014E01900Senator David Norris: He is involved in a junior GAA team.

25/09/2014E02000Senator Thomas Byrne: He refused to take part in a Radio na Gaeltachta debate with a Gaeltacht candidate, someone who speaks Irish, according to the recommendations of the Members opposite.

25/09/2014E02100Senator Paul Coghlan: He has a wider involvement than that, as the Senator knows, but I will not go down that road.

25/09/2014E02200Senator David Norris: If Senator Coghlan knows, he should share the knowledge with us.

25/09/2014E02300Senator Paul Coghlan: I do know it but I will not waste the time of the House. I will talk to Senator Norris about it outside the Chamber. The Opposition is shamelessly chasing headlines.

25/09/2014E02400Senator David Norris: No; we are chasing the principle of the Senate.

25/09/2014E02500Senator Paul Coghlan: This man was prepared to act pro bono, like everyone else. He is as qualified-----

25/09/2014E02600Senator David Norris: He is not going to play any role-----

25/09/2014E02700Senator Darragh O’Brien: On a point of order-----

25/09/2014E02800Senator Paul Coghlan: He is as qualified as a former councillor, company director, bar- rister-----

25/09/2014E02900Senator Darragh O’Brien: -----I ask Senator Paul Coghlan to correct the record, because no board member, bar the chairman, is entitled to claim expenses from IMMA. He is not doing work pro bono because he would not have received a fee anyway.

25/09/2014E03000An Cathaoirleach: That is not a point of order.

25/09/2014E03100Senator Paul Coghlan: Sorry; they are all pro bono.

25/09/2014E03200An Cathaoirleach: Does the Senator have a question for the Leader?

25/09/2014E03300Senator Paul Coghlan: People are talking about nine, 11 or 15 board members, but the memorandum and articles of association govern the situation.

25/09/2014E03400Senator Thomas Byrne: Has Senator Coghlan read them? If he had read them, the hairs would stand at the back of his neck.

25/09/2014E03500Senator Paul Coghlan: I agree with what has been said by Senator Michael Mullins com- plimenting the Naval Service. It was a tremendous use of intelligence to arrest people in regard to that amount of cocaine on a vessel in Cork. I commend the Naval Service.

25/09/2014E03600Senator Feargal Quinn: Yesterday, HIQA published a report based on the defibrillator Bill that was allowed to be initiated in the House last year. Following the publication of the Bill, the Minister said he wanted information and asked HIQA to report on it. The Bill was handled in 304 25 September 2014 this House, and we need to discuss it because the Minister said he would make decisions based on it sometime in the next few weeks. We should discuss the HIQA report on defibrillators. It is essential and worth doing. Some aspects of it need attention, one of which cropped up yesterday in a discussion. The tax on betting is either 1% or 2%, but the tax on defibrillators - that is, VAT - is 23%. That is unacceptable. We have drawn the attention of the Minister to that and he said he would see what we could do about it in Europe, because it is a matter controlled by Europe. The same applies to another Bill passed in this House, which relates to compulsory carbon monoxide detectors in houses. Such detectors also attract a VAT rate of 23%, while the betting tax is 1% or 2%. These are the sorts of thing we should discuss. Senator Sean Barrett says that too many of us are looking for budgetary changes, but this is something that is being handled by Europe and we are told we do not have the freedom to do anything without going back to Europe. The Minister should go back to Europe and argue the case, because he will find support around Europe. The VAT rate on defibrillators and carbon monoxide detectors does not seem correct when lives are at stake.

25/09/2014E03700Senator Michael D’Arcy: On Tuesday, I raised the issue of diesel laundering. The office of the Leader kindly sent me a copy of the debate that took place in the Dáil, including a statement by the Minister, on petrol stretching. In the statement, the Minister said he was satisfied with the progress by the Revenue Commissioners in tackling fuel fraud and with the excellent co-operation between the Revenue Commissioners and the fuel sector. The Minister also said that, since 2011, 30 oil-laundering plants had been closed down, 3 million litres of illicit fuel had been seized and more than 120 filling stations had been closed. That is great. However, in the past week several containers of diesel sludge have been illegally dumped on Louth roads. International bulk containers - transporter containers with liquid - have been removed by contractors for Louth County Council. Six were dumped at Stephenstown Pond in Knockbridge. There was a slight spillage from one of them. Last Wednesday Louth County Council was notified that nine barrels and one international bulk container of diesel sludge had been dumped on the roadside near Faughart graveyard. On Thursday morning cubes of diesel sludge were dumped on the roads in Kilkerley, while three IBCs of diesel sludge were dumped at Ballykelly ESB station. Years ago smuggling was a gentleman’s game. Smugglers and Customs and Ex- cise and Revenue engaged in a game of cat and mouse and if they were caught, the smugglers held up their hands and took the hit. A smuggler who attempted to smuggle several tonnes of butter or some cattle may have had his lorry seized and that would have been the end of the matter. There is some evidence to suggest those trying to deal with this matter are being intimi- dated. As the Cathaoirleach stated on Tuesday, it is vital that we endeavour to have the Minister come to the House before this problem gets out of control.

25/09/2014F00200Senator Diarmuid Wilson: I support Senator Jim D’Arcy’s call for the Minister to come to the House to discuss a serious problem, particularly in the Border counties of Louth, Cavan, Monaghan and Donegal. Every year hundreds of millions of euro is being lost to Revenue as a result of this activity which is carried out by gangsters. Unfortunately, these gangsters are, by and large, getting away with intimidating people. People living in the Border counties and the councils that represent them must pick up the tab for dealing with the sludge that is abandoned throughout the area. I call on the Minister to come before the House to discuss this issue. More resources must be allocated to the Customs service to deal with this problem which is spread- ing from the Border counties to the rest of the State. The issue must be addressed as a matter of urgency.

I join colleagues in congratulating the members of An Garda Síochána, the Naval Service,

305 Seanad Éireann the Customs service and the international police forces who were involved in yesterday’s successful seizure of a ship transporting drugs. I welcome this development as it has ensured drugs valued at €80 million will not reach our streets and the poor unfortunate people who use them. I encourage the Government to provide adequate funding to enable the policing, naval and customs services to continue to engage in these operations.

I ask the Leader to invite the new Minister for Education and Skills, Deputy Jan O’Sullivan, to the House to discuss how the transition from the vocational educational committees to education and training boards is progressing. I am aware that some difficulties have arisen, particularly in the area of training because some education and training boards do not have a training centre located in their jurisdiction.

25/09/2014F00300Senator John Crown: I pay tribute to two extra-parliamentary political figures who have done the right thing in the past two days. Mr. Dale McDermott from Young Fine Gael correctly pointed to the incongruence between the Fine Gael Party’s pre-election commitment to political reform which was partially responsible for the party receiving my humble endorsement in the previous general election and the actions of the Taoiseach in the appointment of Mr. John McNulty to the board of the Irish Museum of Modern Art. While Mr. McNulty is probably well qualified for the position by virtue of his previous curriculum vitae, it is likely that he is wholly unqualified for it by virtue of his inability to see the job through. I also pay tribute to Ms Samantha Long who did an honourable thing in resigning her membership of the Fine Gael Party on this issue.

25/09/2014F00400An Cathaoirleach: I have ruled that issue out of order. Senators may not speak about people outside the House who are not able to defend themselves. In addition, the individuals concerned do not have any role in the matter.

25/09/2014F00500Senator David Norris: One of them was a candidate for election to the Seanad.

25/09/2014F00600An Cathaoirleach: She has no role in this matter, as the Senator is well aware.

25/09/2014F00700Senator John Crown: I fail to see how it could be out of order to pay tribute to someone. We have paid tribute to all manner of people, from farmers to GAA players to local advocates, throughout the three and a half years I have been a Senator and none of these tributes has ever been ruled out of order. The only thing that appears to be out of order is that it is probably cre- ates an odour for the leadership of Fine Gael that these unfortunate realities are being brought home to roost in this Chamber where they are most relevant.

It is essential that the Taoiseach provide a commitment and firm timeline for his plans for Seanad reform. His behaviour towards the Seanad has been regrettable from day one. His pre-election promise to hold a referendum to abolish the Seanad was valid and an honourable question was put to the people and defeated. However, the manner in which the campaign was conducted was not so honourable. People sent a clear message that there was a real and palpable need for Seanad reform. I was delighted, therefore, when Mr. McDermott of Young Fine Gael stated one of the things that needed to be fixed was the onerous panel system. I fully agree with him that it should be abolished. Why can we not have a reform based on universal franchise to a co-equal Chamber?

I propose to refer in passing to an extraordinary coincidence yesterday in respect of two sets of visitors to the House. The first visitors were representatives of the Amahdi branch of Islam, a widely persecuted and admired near pacifist movement within the Islamic community whose 306 25 September 2014 members suffer terrible persecution in many parts of the world because of the perception that they depart somewhat from what some would regard as the orthodoxy of that peaceful religion. They were followed by representatives of the Iranian Parliament who visited the House as part of the Iran-Ireland parliamentary friendship group. I hope the visit provided an opportunity to raise the issue of the systematic persecution of people for their religious beliefs in the Islamic Republic of Iran. I refer, in particular, to the Baha’i minority whose persecution extends to not being allowed to practise their faith and being regarded not as a religious but as a political movement which has resulted in the judicial deaths of several hundred of them. I ask that Senators be given an opportunity, during the time remaining to us, to invite representatives of oppressed religious minorities in different parts of the world, be they members of the Baha’i faith, Amahdi Muslims or Coptic Christians in Egypt, to give us a flavour of how this problem is panning out.

25/09/2014F00800Senator Thomas Byrne: Many more questions have been raised about the business of the Seanad by-election, notably a compelling interview with Mr. Gerard Craughwell on Newstalk this morning. I urge anyone who has not heard the interview to listen to it. What has happened in this case almost amounts to a fraud, of which Mr. Craughwell was the victim. Senator Dar- ragh O’Brien has proposed that the Seanad use its powers under the inquiries Act to launch a full and comprehensive investigation into what took place this week. This presents a challenge to Senators who must to decide whether they wish to talk about this issue or find out exactly what took place. It is essential that the Minister and the Taoiseach come before the House to discuss the issue.

Why does the website of the Companies Registration Office not feature any information on changes in the directors of the Irish Museum of Modern Art? No change has been registered with the office and its website does not give any indication of a change in directors. Apparently, the individual in question used his alleged directorship, which is not recorded in the Companies Registration Office as far as I can see, to qualify himself, belts and braces, for selection on the Cultural and Educational Panel. If the Seanad is to take itself seriously, it must carry out a full investigation to ascertain what took place.

The fault for this issue lies not with Mr. McNulty but with his superiors in the Fine Gael Party and the Government who decided that this appointment needed to be made if Mr. McNul- ty was to qualify for the panel. He would have qualified in any case; that is not the issue. The issue concerns the shenanigans that took place at senior levels of the Government in appointing someone to the board of an important museum for a number of weeks. I question whether the appointment has been made or is valid. Senator Paul Coghlan has stated there are 15 board positions available in the IMMA. The latest Companies Registration Office printout lists 14 members of the IMMA board. How did the Minister allegedly appoint two people to the board? We will not get answers to these questions without a full investigation of the matter.

25/09/2014F00900Senator Paschal Mooney: During the debate on the establishment of Irish Water I questioned the Tánaiste and Minister for Social Protection, Deputy Joan Burton, on the use of PPI numbers, as provided for in the legislation. I questioned her closely as to how this process would work. The Minister assured me and the House that the PPS numbers requested by Irish Water from its customers would be used exclusively within Irish Water. Since then, it has become a major issue with householders across the country. Members of the other House have raised questions about it and the Data Protection Commissioner has become involved. Despite the fact that the Minister assured me at that time that the PPS numbers would be used exclusively by Irish Water, a suspicion has now emerged that Irish Water might be privatised even- 307 Seanad Éireann tually, which has resulted in concern about what would happen to the personal details held on its database. I ask the Leader to ask the Minister to come to the House or, at the very least, to issue a statement reiterating what she put on the record of the House in order to allay the fears of those who are concerned about providing their PPS numbers.

The Minister for Communications, Energy and Natural Resources is responsible for An Post. I ask that he come to the House or make a statement about the ongoing expansion of postal services by An Post into non-post-office areas. Media reports state that An Post plans to provide stamps and parcel facilities at depots located in business parks around the country. This will take away business from the post office network. I refer to recent news that the credit unions and the post office network are thinking of linking up to provide what might ultimately become a third banking service in this country. This initiative should be actively encouraged. It would reflect the sentiment on all sides of this House which supports the post office network because of its importance to rural Ireland. I ask the Minister to issue a statement or come to the House to clarify the position.

I refer to the furore surrounding the Seanad by-election. Remarks have been attributed to Members on the Government side - from both Fine Gael and the Labour Party - that this is a reflection of how Fianna Fáil did business. Fianna Fáil never did anything like this. I will not get any satisfaction from the other side because they will always throw out this old turnip. Therefore, I ask those in the media to do a little bit of research and they will discover that Fine Gael-Labour Party coalitions, whenever they have been in power, have stuffed State boards with their own people.

25/09/2014G00200Senator Catherine Noone: This is a bit hard to take.

25/09/2014G00300Senator Paschal Mooney: It is on the record. Over the past 30 years they have done this specifically during what is called the interregnum, when they have been going out of office-----

25/09/2014G00400Senator Diarmuid Wilson: Which was pretty often.

25/09/2014G00500Senator Paschal Mooney: -----and whenever they were in office they have stuffed State boards. I will leave it with this. I am someone who grew up with Fianna Fáil. One of the major criticisms that used to be levelled at Fianna Fáil Governments by the grassroots was that those appointed by Fianna Fáil to State boards were not Fianna Fáil activists but were actually from the other side. That was a constant major criticism - that we were too well-balanced. They can laugh all they want on the other side of the House, but the facts speak for themselves.

(Interruptions).

25/09/2014G00700Senator Thomas Byrne: Have a look at Mr. McNulty’s colleagues on the IMMA board. They are not Fianna Fáil cronies; they are important people in the world of arts.

25/09/2014G00800Senator Paul Bradford: Senator Mooney’s contribution has teed me up. I appreciate why it is difficult for the Members on the Government side to listen to lectures from Fianna Fáil about stroke politics, notwithstanding the defence put forward by Senator Mooney. We all know the historical facts. Notwithstanding the history of Fianna Fáil, it is also very difficult to say that there is not some element or degree or sniff of stroke politics about this entire unpleasant episode. As Members of Seanad Éireann we defended this House strongly and valiantly 12 months ago, and we must be concerned about actions that are not of our making which impugn the authority and reputation of Seanad Éireann. Apparently, one of the defences being put 308 25 September 2014 forward by some members of the Government parties at their respective parliamentary party meetings last night was that Fianna Fáil, if in the same position, would have done the very same. That may well be the case-----

25/09/2014G00900Senator Darragh O’Brien: When did we ever do that?

25/09/2014G01000An Cathaoirleach: Senator Bradford without interruption.

25/09/2014G01100Senator Paul Bradford: The lesson is that we must all concede that a new way of doing political business is urgently required. The citizens of this country are absolutely appalled at Tweedledum morphing into Tweedledee and business as usual. We urgently need a debate on political reform, and the Government has produced a document in that regard. In the interests of the people of the country I ask the Leader to try to facilitate an urgent debate on political reform so that we can move away from this trick-of-the-loop type of politics which serves nobody and by which everybody loses. The Members of this House of the Oireachtas have a duty to stand up for democracy in every possible respect. We must offer leadership and ensure that the highest standards apply. I ask the Leader to facilitate that debate. I know he has the same view of the need for fair and transparent politics, as do I and every Member of this House. This unnecessary, unpleasant situation - I will not call it a crisis - has not been caused by any Member of this House. We are the victims, in a sense, of someone else’s game.

25/09/2014G01200Senator Eamonn Coghlan: I am somewhat bemused by the debate over the debacle of the nomination of Mr. McNulty to the Seanad by An Taoiseach.

25/09/2014G01300Senator Darragh O’Brien: He has not nominated him to the Seanad; he has nominated him to contest the by-election.

25/09/2014G01400Senator Eamonn Coghlan: The Senator knows what I mean.

25/09/2014G01500Senator Thomas Byrne: They just got in the Labour Party votes, so let us see what happens.

25/09/2014G01600An Cathaoirleach: Senator Coghlan without interruption.

25/09/2014G01700Senator Eamonn Coghlan: I was fortunate to be one of the Taoiseach’s nominees. After a number of months I decided I wanted to join the Fine Gael Party because I believed in our leader, Enda Kenny, I believed we were going through extremely tough times and I believed that the Taoiseach and Fine Gael, in co-operation with the Labour Party, were going to rebuild Ireland and rebuild the economy.

Throughout the lovely fine weather during the summer recess there were positive headlines in the newspapers reporting that unemployment figures had come down as well as bond yields. Even governments are investing in Ireland because it is regarded as a safe haven. The banks are rebuilding and it is reported that the Government will recoup approximately €3.5 billion if AIB goes onto the stock market. I refer to the GNP and GDP figures. Enterprise Ireland is hosting a conference in the RDS today for hundreds of Irish companies that are doing business abroad. There are more Irish companies employing more people in the United States than there are companies from the United States employing people in Ireland.

In my view, there is an emergence of stroke politics, in that the good news is not being publicised and this is providing an opportunity for the Opposition to take the Government’s eye off the ball----- 309 Seanad Éireann

25/09/2014G01800Senator Darragh O’Brien: So it is our fault. We should just shut up and say nothing.

25/09/2014G01900An Cathaoirleach: Senator Coghlan without interruption.

25/09/2014G02000Senator Eamonn Coghlan: Yes. In my short experience here, politics is all about pulling strokes, and this is a stroke by the Opposition to try to bring down the Government-----

25/09/2014G02100Senator David Norris: A frank admission anyway.

25/09/2014G02200Senator Fidelma Healy Eames: It is back to first principles.

25/09/2014G02300Senator Eamonn Coghlan: Why was this person named and why was he appointed to IMMA only ten days beforehand? Had he not been appointed, I do not think this would have emerged in the media or even in the House today.

25/09/2014G02400Senator Darragh O’Brien: That is exactly the point. Welcome to work.

25/09/2014G02500Senator Maurice Cummins: Senator Darragh O’Brien and the majority of Members have spoken about the upcoming Seanad by-election which will take place on 10 October. I met with the Fine Gael candidate, Mr. McNulty, last evening for the first time. I believe he will be an excellent Member of this House if he is elected.

25/09/2014G02600Senator David Norris: That is not the question.

25/09/2014G02700Senator Jim D’Arcy: It is a big one.

25/09/2014G02800Senator David Norris: It is not the question.

25/09/2014G02900An Cathaoirleach: Please, Senator Norris. You have spoken already. The Leader is about to answer the questions that have been raised in the House.

25/09/2014G03000Senator Maurice Cummins: Senator Byrne said, “The man would have been qualified anyway without his nomination to”-----

25/09/2014G03100Senator Thomas Byrne: We are querying the appointment to IMMA.

25/09/2014G03200An Cathaoirleach: Allow the Leader to answer the questions on the Order of Business.

25/09/2014G03300Senator Maurice Cummins: With reference to what Senator Byrne said, that is not the opinion of Senator O’Brien or Senator Norris, who want to act as judge and jury with regard to his eligibility.

25/09/2014H00100An Cathaoirleach: The Leader without interruption.

25/09/2014H00200Senator Darragh O’Brien: We allow people to speak their minds on this side of the House. We are not sheep.

25/09/2014H00300Senator Maurice Cummins: I have no intention of acting as judge and jury with regard to the man’s eligibility. I agree totally with Senator Byrne that I feel he would have been qualified anyway.

25/09/2014H00400Senator Thomas Byrne: Would the Leader agree with me that there should be an investigation under the Oireachtas (Inquiries, Privileges and Procedures) Act?

310 25 September 2014

25/09/2014H00500An Cathaoirleach: The Leader without interruption.

25/09/2014H00600Senator Maurice Cummins: I am not the one who makes decisions in that regard. How- ever, he is a candidate for the by-election on 10 October and the Members of this House and the other House will decide who will be elected. I am sure that we will all abide by the democratic decision.

25/09/2014H00700Senator Thomas Byrne: Does this warrant an investigation under the Oireachtas (Inqui- ries, Privileges and Procedures) Act?

25/09/2014H00800Senator Maurice Cummins: Senator Hayden commended the chairman of the banking inquiry for his stewardship to date and called for a debate on the economy. I believe it will be November or December before we can resume a debate on the Residential Tenancies (Amend- ment) (No. 2) Bill.

Senator Leyden and several other Senators complimented the Naval Service, the gardaí, the Customs Service and all the international agencies involved in the massive drugs seizure off Mizen Head. I join in the compliments to all involved.

Senator Mullins also spoke about the crime linked to drugs, the devastation drugs cause to many communities throughout the country and the need for a more targeted approach in com- batting the drugs problem we have.

Senator Barrett spoke about the budget submissions calling for more spending in many areas. There have been many budget submissions but Senator Barrett, like many others, expressed the need for balance and prudence in the framing of any budget.

Senator Mac Conghail complimented the Government on the consultation on the national cultural policy and called for a broad debate on the arts and national cultural institutions. I have asked the Minister for Arts, Heritage and the Gaeltacht to come to the House to have such a debate and she is certainly willing to have that debate. Hopefully, we will have her in soon.

Senator Quinn spoke about the HIQA report on defibrillators and called for a debate on that matter. I will ask the Minister for Health to come in for a debate on that matter.

Senators Jim D’Arcy and Diarmuid Wilson raised the question of diesel sludge being dumped in County Louth and other Border counties and asked for the Minister to come in to discuss the matter with us. Senator Wilson rightly pointed out that gangsters are involved in this practice and referred to the intimidation that is taking place. It is taxpayers who are picking up the tab. The supporters of these criminals should realise that it is ordinary people - their own neighbours - who are suffering as a result of this despicable practice.

Senator Wilson asked for the Minister for Education and Skills to come in for a discussion on the progress of the education and training boards. I asked the Minister to come in and I am sure she will accede to that request in due course.

Senator Crown spoke about the persecution of people for religious beliefs in several countries. Iran was mentioned. He spoke about inviting people to the House so that we might have a debate on that matter. Inviting people in would probably be a matter that would be more appropriate for the relevant committee but I will certainly examine it.

Senator Mooney spoke about the use of PPS numbers in respect of Irish Water. The Data 311 Seanad Éireann Protection Commissioner has examined the level of personal detail Irish Water proposes to seek from householders in the application form. Irish Water will be liaising with the Department of Social Protection to verify that the PPS information provided is correct to ensure that customers are entitled to any allowances being provided. This is necessary for Irish Water to account properly for the allowances that are to be funded by the Exchequer. This will also ensure that there is transparency in the use of public funds. Irish Water is a specified body under section 20 of the Social Welfare and Pensions Act 2014 and is therefore permitted to request PPS numbers to authenticate the identity of a person being provided with an allowance. Irish Water will treat applicants’ personal data in accordance with the Data Protection Acts of 1988 and 2003. Irish Water has confirmed to the Department of the Environment, Community and Local Govern- ment that its data protection notice is fully compliant with data protection requirements and that it is in regular contact with the Office of the Data Protection Commissioner to ensure that this is the case. I hope this clarifies the matter for the Senator.

Senator Mooney also encouraged the link-ups between post offices and credit unions which have been suggested. I will not comment on stuffing boards before Governments go out of office because I might have to say too much in that regard.

Senator Eamonn Coghlan spoke about the many positive indicators for the economy. I will not repeat what he mentioned in that regard.

I do not propose to accept the amendment to the Order of Business.

25/09/2014H00900Senator Fidelma Healy Eames: On a point of information-----

25/09/2014H01000An Cathaoirleach: There is no such thing as a point of information.

25/09/2014H01100Senator Fidelma Healy Eames: On a point of order, will the Leader respond to the questions I put to him?

25/09/2014H01200Senator Thomas Byrne: On a point of order, I put the same question.

25/09/2014H01300An Cathaoirleach: I have no control over what the Leader says on the Order of Business or the replies he has given. Senator Darragh O’Brien has moved an amendment to the Order of Business: “That a debate with the Minister for Arts, Heritage and the Gaeltacht to address questions regarding the appointment of Mr. John McNulty to the board of the Irish Museum of Modern Art be taken today.” Is the amendment being pressed?

25/09/2014H01400Senator Darragh O’Brien: Yes.

Amendment put:

The Seanad divided: Tá, 17; Níl, 21. Tá Níl Barrett, Sean D. Bacik, Ivana. Byrne, Thomas. Brennan, Terry. Crown, John. Burke, Colm. Healy Eames, Fidelma. Coghlan, Eamonn. Leyden, Terry. Coghlan, Paul. Mac Conghail, Fiach. Comiskey, Michael.

312 25 September 2014 MacSharry, Marc. Conway, Martin. Mooney, Paschal. Cummins, Maurice. Norris, David. D’Arcy, Jim. O’Brien, Darragh. D’Arcy, Michael. O’Sullivan, Ned. Gilroy, John. Ó Murchú, Labhrás. Hayden, Aideen. Power, Averil. Moloney, Marie. Quinn, Feargal. Moran, Mary. Walsh, Jim. Mulcahy, Tony. White, Mary M. Mullins, Michael. Wilson, Diarmuid. Naughton, Hildegarde. Noone, Catherine. O’Donnell, Marie-Louise. O’Neill, Pat. Sheahan, Tom.

Tellers: Tá, Senators Ned O’Sullivan and Diarmuid Wilson; Níl, Senators Paul Coghlan and Aideen Hayden.

Amendment declared lost.

12 o’clock

Question put: “That the Order of Business be agreed to.”

The Seanad divided: Tá, 22; Níl, 15.TáBacik, Ivana.Brennan, Terry.Burke, Colm.Coghlan, Eamonn.Coghlan, Paul.Comiskey, Michael.Conway, Martin.Cummins, Maurice.D’Arcy, Jim.D’Arcy, Michael.Gilroy, John.Hayden, Aideen.Mac Conghail, Fiach.Moloney, Marie.Moran, Mary.Mulcahy, Tony.Mullins, Michael.Naughton, Hildegarde.Noone, Catherine.O’Donnell, Marie-Louise.O’Neill, Pat.Sheahan, Tom.NílBarrett, Sean D.Crown, John.Healy Eames, Fidelma.Leyden, Terry.Mooney, Paschal.Norris, David.O’Brien, Darragh.O’Sullivan, Ned.Ó Murchú, Labhrás.Power, Averil.Quinn, Feargal.Reilly, Kathryn.Walsh, Jim.White, Mary M.Wilson, Diarmuid. Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O’Sullivan and Diarmuid Wilson.

Question declared carried.

25/09/2014K00200Freedom of Information Bill 2013: Committee Stage

313 Seanad Éireann Section 1 agreed to.

SECTION 2

25/09/2014K00500Senator Kathryn Reilly: I move amendment No. 1:

In page 10, line 33, to delete “21 April 2008” and substitute “1 January 2007”.

This issue was discussed during the proceedings in the Dáil. It concerns the date on which the entity was not considered to be a public body within the meaning of the 1997 Act but is proposed to be considered to be a public body under the new legislation. Why was the date of 21 April 2008 chosen? The amendment proposes - my party made this proposal in the Dáil - that a retrospective period of seven calendar years be used. It is important for the sake of public confidence, as well as in the interests of open government, transparency and accountability, that a period that is potentially relevant to accessing information on the economic crisis not be excluded on the basis of being out of time. That is the reason for the change of date proposed in the amendment.

25/09/2014K00600Minister for Public Expenditure and Reform (Deputy Brendan Howlin): The Sena- tor is correct that this issue was debated in the Dáil. Obviously, I am anxious that there be a reasonable period of retrospection. I am under considerable pressure not to have retrospection for six full calendar years, as I am proposing to do, but I consider it desirable and practicable. However, one must consider the issue of practicality when one intends to do something ret- rospectively. Most laws are not retrospective but apply from a current date. To provide that people are obliged to marshal, organise, catalogue and present data, in freedom of information form, for the last six years is a big burden. On balance, it is as far as it practicably can be done.

25/09/2014K00700Senator David Norris: It is only a matter of a couple of months. The additional burden would not be great.

25/09/2014K00800Deputy Brendan Howlin: It is one year.

25/09/2014K00900Senator David Norris: Even so, it would not be a huge burden. Senator Kathryn Reilly made a good point. From the point of view of freedom of information, it is important to get access to the greatest degree of information on the financial crisis.

25/09/2014K01000Deputy Brendan Howlin: It was for that reason I chose 2008, which predates all of the financial crisis issues.

Amendment, by leave, withdrawn.

25/09/2014K01200Acting Chairman (Senator Paschal Mooney): Amendments Nos. 2, 3 and 13 form a com- posite proposal and may be discussed together.

25/09/2014K01300Senator Sean D. Barrett: I move amendment No. 2:

In page 11, line 15, to delete “or a prescribed body”.

I welcome the Minister and thank him and the Minister of State, Deputy Simon Harris, for their responses.

I am on the Minister’s side and hope that the amendments I have tabled will be of use in strengthening the Bill. That is the spirit in which they are offered. As stated in a previous dis- 314 25 September 2014 cussion on these issues, these measures are absolutely necessary because as Sir Humphrey is not a natural democrat he will, unfortunately, use all of his skills to conceal information from the public. As a parliament, we are trying to bring information into the open.

Amendments Nos. 2 and 3 arise out of the Explanatory Memorandum, and on the basis of the speech made by the Minister on the last occasion we discussed this Bill, which states that this Bill will enable FOI to apply to all public bodies. Essentially, FOI is being extended to the widest possible definition of public bodies. Amendment No. 2 seeks the deletion of the phrase “or a prescribed body” so as to provide that FOI applies to all public bodies. It is nudge economics. We are nudging bodies and people into this area and want to ensure there are no loopholes through which they might escape. For example, a future Minister may be less enthu- siastic about this matter and may not so prescribe. Should we not, therefore, be providing that this applies to all public bodies and, ditto, in respect of all voluntary bodies in receipt of public money? There should be no fudge around this. All bodies know where the Exchequer is when looking for funding and should also know where the parliament is when seeking information. That is the spirit in which amendments Nos. 2 and 3 are proposed. In other words, there is no need to prescribe and every body is included.

Amendment No. 13 relates to voluntary bodies and incorporates words from a later section of the Bill, which states:

(1) Having regard to the need to ensure the oversight of entities that, although not public bodies, receive funding from the State and the need for such bodies to adhere to the principles of transparency and accountability in government and public affairs as respects those of their activities that are funded by the State, such bodies and activities are subject to this Act.

This amendment seeks the provision of more power for the current Minister and his successors. I know the Minister will utilise his power but I want to make sure his successors are similarly constrained. It is a strong message of support which is influenced by the work being done by Deputy Ciarán Lynch in the banking arena, where there were amazing bouts of amnesia and failure to keep records. Bodies should not be permitted to say that they do not keep records lest somebody at the behest of the Minister, Deputy Howlin, starts asking FOI questions. As I said, I am on the Minister’s side on this. That is the spirit of the amendments. All bodies and organisations which receive funding from the Exchequer should be included, as is every public body and, therefore, there is no need to prescribe.

25/09/2014L00200Senator Ivana Bacik: I welcome the Minister to the House. I also welcome this Bill, which as stated by Senator Barrett we all approve of in that it seeks to extend the parameters of freedom of information and to ensure that the widest possible definition of public bodies is covered. I appreciate that Senator Barrett is on-side with the Minister and Government on this one, as indeed we all are.

It is important that the words “or a prescribed body” be retained. Public bodies are already covered within the terms of the Act. The prescribed body provision expands the categories of entity covered by FOI provisions to include non-public bodies which receive significant funding from the Exchequer. Amendment No. 13 seeks to do something similar to that provided for in section 7 as drafted. I do not see the merit of changing that section as suggested by Senator Barrett. To remove “or a prescribed body” from the definition in section 2 would be to undermine the purpose of the legislation and the stated intention to ensure that not only are all public bodies subject to FOI but so too are a large category of prescribed bodies, namely, non-public 315 Seanad Éireann bodies which receive significant funding from the Exchequer. I am sure the Minister will respond more fully to the Senator’s amendments but I wanted to make those points given all of us are in agreement on the intention and purpose of the legislation.

25/09/2014L00300Senator David Norris: It appears to me that the Bill as drafted requires the Minister to prescribe bodies that are not public bodies. I note the Minister is shaking his head. Senator Barrett’s amendment seeks to provide that they be included any way. It is particularly important they are included. In light of the scandals that surrounded the rehabilitation area and so on it is important to ensure that these bodies are comprehensively covered even though only part of their funding comes from the State.

25/09/2014L00400Deputy Brendan Howlin: All public bodies are already captured by the Bill and will remain so. As I explained in my Second Stage contribution, this provision is to broaden FOI to include private bodies in receipt of State funding. However, this needs to be done in a structured manner. Not everybody who from commencement of the legislation receives a bob from the State can be captured. As such, there must be a rational process for doing what is proposed. This is what I am setting out to do. It is my intention that the type of bodies referred to by Sena- tor Norris would be fully captured. There will be people who might receive a donation from the State in some form or other who should not be under the burden of FOI, including small charities and so on. We need to ensure balance in that regard.

I wish to assure Senators that all public bodies will be captured and that the extension to prescribed bodies, which are essentially private bodies who receive some portion of public funding, will be provided for in a way that is practical and proportionate. That is the intention of the Bill.

25/09/2014L00500Senator Thomas Byrne: Perhaps the Minister would respond to the situation in respect of An Taisce, which, as highlighted by my colleague, Senator O’Donovan, on the last occasion we discussed this Bill, is not publicly funded but has statutory functions.

25/09/2014L00600Deputy Brendan Howlin: It is publicly funded.

25/09/2014L00700Senator Thomas Byrne: Does the Minister envisage An Taisce being subject to FOI requests?

25/09/2014L00800Deputy Brendan Howlin: I did respond to that question on the last occasion, at which time I was a little beaten up for having singled out a particular organisation. It is that class of organisation that will be subject to FOI.

25/09/2014L00900Senator Thomas Byrne: What will be the position in respect of other organisations which are not publicly funded but do have statutory powers? In other words, An Taisce, which, public funding aside, has the statutory function of considering planning applications. I am not sure if there are other examples.

25/09/2014L01000Deputy Brendan Howlin: That is an issue on which I will have to reflect further. The notion was that all public bodies would be captured. That was the original nexus of the Act. I want to extend that to capture other bodies that receive State funding. Whether bodies who have a statutory function-----

25/09/2014L01100Senator Thomas Byrne: I can think of one in the UK, which does not apply here.

25/09/2014L01200Deputy Brendan Howlin: -----but do not receive any State funding can be captured is 316 25 September 2014 more problematic.

25/09/2014L01300Senator Thomas Byrne: I am not sure if we have here an equivalent of the RSPCA in the UK.

25/09/2014L01400Deputy Brendan Howlin: We do: the ISPCA.

25/09/2014L01500Senator Thomas Byrne: Yes but it does not have the same functions. The RSPCA in the UK as a private body has a prosecutorial function. Its equivalent here, the ISPCA, does not. Are there bodies here that have similar powers but are not necessarily State funded?

25/09/2014L01600Senator David Norris: By way of clarification and on my earlier remarks in regard to public bodies and prescribed bodies, what I said is that public bodies are automatically captured and other bodies in receipt of partial State funding have to be prescribed by the Minister, otherwise they are not captured. As such, my assumption was correct.

25/09/2014L01700Senator Ivana Bacik: I would like to address two points that have arisen in the debate. First, it is clear from the definition of “public body” in section 6(1) that an entity established by or under any enactment, in other words a statutory entity, will be covered by the legislation. As such, the type of entity mentioned by Senator Byrne would be covered.

On the other point in relation to Senator Barrett’s amendment No. 13 to section 7, as stated by the Minister if accepted this would allow for the inclusion of far too wide a group. Section 2 defines an entity as “a person, body of persons, organisations or group”. Acceptance of amendment No. 13 would result in any private company that has a contract with the State to supply goods or services of up to €100 being subject to FOI. That is far too broadly drawn. It is not at all within the spirit of the legislation that that type of entity would be captured. The structured approach provided for in the current draft of section 7 is preferable, although I do appreciate we are all trying to get to the same place. It is a more carefully drawn set of provisions to allow for the prescribed bodies to be captured under this legislation, rather than providing that any entity that receives State funding of any kind will be subject to FOI.

25/09/2014M00100Acting Chairman (Senator Paschal Mooney): Does the Minister have anything new to add?

25/09/2014M00200Deputy Brendan Howlin: Not very much. That is a fair representation of the position. It is my intention, as soon as the Bill is enacted which I hope will happen very shortly, to have the widest possible trawl of any body which receives State funding, conducts public business and should properly be amenable to FOI legislation. This is something which will be formally reviewed by the Oireachtas from now on. If there is any lacuna in the listings, it can be brought to my attention and that of the Committee on Public Oversight and Expenditure.

25/09/2014M00300Senator Sean D. Barrett: I thank the Minister. All public bodies should be included. We will discuss later some 38 which are exempt. In the case of voluntary bodies, are there rules of thumb? For example, a figure of 10% of a certain level funding or X thousands or hundreds of thousands of euro should mean that questions would have to be answered, but I will leave that matter with the Minister. I welcome what he said and will not move my amendments to this section. We are all moving in the same direction.

Amendment, by leave, withdrawn.

Amendments No. 3 not moved. 317 Seanad Éireann

25/09/2014M00600Senator Thomas Byrne: I move amendment No. 4:

In page 14, between lines 16 and 17, to insert the following:

“(e) any correspondence electronic or otherwise even if such correspondence is not carried out on the official networks of the public body,”.

I want to highlight an issue that I am not sure is covered in the Bill. I discussed the matter last wek with the Minister’s officials, to whom I am grateful. The former Minister, Deputy Pat Rabbitte, announced that he kept a parallel diary, separate from his official diary, in order to avoid FOI legislation. In the United Kingdom private e-mails can be subject to-----

25/09/2014M00700Deputy Brendan Howlin: He did not.

25/09/2014M00800Senator Thomas Byrne: He did.

25/09/2014M00900Deputy Brendan Howlin: He did not say that.

25/09/2014M01000Senator Thomas Byrne: I will read the article to be sure to be sure.

25/09/2014M01100Deputy Brendan Howlin: It must be.

25/09/2014M01200Senator Thomas Byrne: The headline on the article was “Rabbitte foils FOI by hiding his meetings”.

25/09/2014M01300Senator Ivana Bacik: That was written by a sub-editor, rather than the former Minister.

25/09/2014M01400Senator Thomas Byrne: The article stated: “Pat Rabbitte has revealed he very deliberately avoids recording all his meeting in a ministerial diary to prevent the contents being released under the Freedom of Information Act”. The quote from the former Minister is as follows:

In my case it’s a digital diary but I keep a parallel diary ... I don’t necessarily put everything that I do into [the digital diary], very deliberately. I deal with some issues of considerable commercial sensitivity (already covered under FOI legislation) ... But yes, there is a digital diary and it has been sought under Freedom of Information (FoI) on many occasions and the whole lot has been put out there.

In the United Kingdom such diaries or private e-mail correspondence which I have tried to target in the amendment are subject to FOI legislation. In New Jersey Governor Chris Chris- tie’s e-mails were subject to FOI legislation and nothing incriminating was found. It was only when for an assembly hearing there was a subpoena to obtain all of his private e-mails that all of the dirt on him and bridgegate was found. It is clear there are such practices. Are there codes of practice or rules about using private e-mails, diaries or text messages which, if sent over the official networks for correspondence, could be subject to FOI legislation? The amendment highlights an issue which has not been addressed. It proposes to include e-mails, even if they are private, under FOI legislation. Does the Minister have proposals in that regard?

25/09/2014M01500Senator David Norris: I have concerns about the amendment. First, it does not specify that it would have to be related to a particular matter. It could be quite private.

25/09/2014M01600Senator Thomas Byrne: It would still be covered by FOI exemptions.

25/09/2014M01700Senator David Norris: I do not agree with the amendment. The explanation offered by the 318 25 September 2014 Senator concerning the former Minister, Deputy Pat Rabbitte, relates directly to the point I made on Second Stage. This overuse of FOI legislation means that no records are kept of discussions at the Cabinet and elsewhere which are held privately, off the record and lead to critical decisions being made because Ministers do not want to be accessible under FOI legislation. They wish their discussions to be covered by confidentiality. The Government is there to govern, not to constantly look over its shoulder to see what the public or, more likely, representatives of the media are trying to trawl through. I would be very careful and have hesitations about the Bill, for which support is not unanimous, as Senator Ivana Bacik implied. I have strong reservations about the extension of freedom of information provisions.

25/09/2014M01800Deputy Brendan Howlin: The definition of “record” in section 2 is very broad and does encompass paper-based and all electronic correspondence, including e-mails. The additional text proposed by Senator Thomas Byrne would not be workable for the very reasons set out by Senator David Norris. It would extend coverage beyond official records to the personal records and personal accounts of individuals. I do not think that is what Senator Thomas Byrne intended.

25/09/2014M01900Senator Thomas Byrne: It is. If the official business of the State is being carried out in private e-mails, which has been a problem in the United Kingdom-----

25/09/2014M02000Acting Chairman (Senator Paschal Mooney): Please allow the Minister to complete his response. The Senator can then contribute.

25/09/2014M02100Deputy Brendan Howlin: The official business of the State takes place on official networks and so on and anything germane to it should be found on them. In terms of confidential discussions, as instanced by Senator David Norris, there is hardly a Senator in the House who has not had such discussions with me on some matter-----

25/09/2014M02200Senator David Norris: Which we do not want to be made public.

25/09/2014M02300Deputy Brendan Howlin: -----and not sought to give advice on something, sometimes against his or her party’s view. Sometimes that is appropriate. The idea is to have an official document on the process of decision-making in order that we know who had an input and so on. The notion that one’s personal records would be-----

25/09/2014M02400Senator Thomas Byrne: That is not what I am looking for.

25/09/2014M02500Deputy Brendan Howlin: I am advised that would be the effect, if not the intent, of the amendment. I assure the Senator that any official information sent electronically to the Depart- ment from someone’s personal account or by the Department to someone else’s account is a record for the purposes of the Act. All information received or stored on any Department’s ICT system is amenable to FOI legislation.

25/09/2014M02600Senator Thomas Byrne: Would Deputy Pat Rabbitte’s secret diary fall under FOI legislation? From what the Minister said, I understand it would not. I am not referring to private correspondence, personal information or commercially sensitive information, which would be exempt. The concerns raised by Senator David Norris are not a problem. I am trying to address something which happened in the United Kingdom and is now happening in Ireland, that is, Ministers down to other levels in the public service are bypassing official networks in order to bypass FOI legislation. That decisions of State are not included in official networks is a problem. The forrmer Minister, Deputy Pat Rabbitte, admitted to doing this. 319 Seanad Éireann The freedom of information commissioner in the United Kingdom said that in certain cases the private e-mails of officials or Ministers could be sought if they related to the official business of the state and came under FOI legislation. I do not refer to somebody booking a holiday or sending a note to his or her family; rather, I am referring to information which would come under FOI legislation if it was sent on official networks. What does the Minister propose to do to stop the avoidance of FOI legislation? Is there a code of conduct on what records should be kept or whether Ministers should send e-mails via Yahoo! or Gmail if they relate to official business? If a senior union official, in the course of negotiations, sends a text message to a Minister, does it come under FOI legislation? If a letter was sent, it would; why not a text message? It is a means by which FOI legislation can be avoided. The Minister needs to draw up rules and practices governing how the system will work.

25/09/2014M02700Deputy Brendan Howlin: On the notion that one could solve the problem to which the Deputy referred by making all personal communications amenable to FOI legislation, that is not a road I would travel. This issue was put to the information commissioner as far back as 2003. There was a question about whether people would not keep records or keep them in a different way because of FOI legislation. The information commissioner responded to the Committee on Finance and the Public Service to this effect:

I would certainly feel it would be rash on my part to say, “I better not keep records because of freedom of information.” The reverse is true.

I think people will want to have on record the policy issues dealt with.

The Minister, Deputy Rabbitte, was referring to the fact that if he had confidential meetings with potential investors, who would not put a cent into the country if they knew we were even discussing this, they should not come into the public domain.

25/09/2014N00200Senator Thomas Byrne: They would be exempt anyway.

25/09/2014N00300Deputy Brendan Howlin: I am saying that is why he said he was doing it. On the specific question, I do not know if the Senator has had a chance to read the draft code I published, Chapter 5 of which deals with records management for each public body, which should have guidelines and a policy in place for the use of personal mobile phones and e-mail addresses for work purposes in so far as FOI is concerned. The code of conduct will have a clear direction in terms of business being business and personal matters being private.

25/09/2014N00400Senator Thomas Byrne: What the Minister has set out in the draft guidelines is not as strong as the UK Information Commissioner’s approach, which is as follows:

Information held in non-work personal email accounts (e.g. Hotmail, Yahoo and Gmail) may be subject to FOIA if it relates to the official business of the public authority. All such information which is held by someone who has a direct, formal connection with the public authority is potentially subject to FOIA regardless of whether it is held in an official or private email account.

I will leave it at that and withdraw the amendment, but it is an important issue that requires more attention.

25/09/2014N00500Acting Chairman (Senator Paschal Mooney): We have debated this enough. Does Senator Norris have something new to add?

320 25 September 2014

25/09/2014N00600Senator David Norris: Yes. In light of the discussion between the Minister and Senator Byrne, could a member of the public or the media be given access to the appointments diary I keep in my office?

25/09/2014N00700Deputy Brendan Howlin: Yes.

25/09/2014N00800Senator David Norris: That is outrageous and scandalous. I see no reason why a member of the public should have access to my appointments diary and I strongly object to it. It is an invasion of privacy.

25/09/2014N00900Senator Thomas Byrne: They already have access to it under existing FOI legislation, except that there is a constitutional provision regarding the private papers of Deputies and Sena- tors.

Amendment, by leave, withdrawn.

25/09/2014N01100Acting Chairman (Senator Paschal Mooney): Amendments Nos. 5, 11, 18 and 35 are related and may be discussed together.

25/09/2014N01200Senator Feargal Quinn: I move amendment No. 5:

In page 14, line 24, to delete “who” and substitute “or company (within the meaning of the Companies Acts) which”.

I welcome the Minister. The Bill is welcome and any amendments that have been tabled here are efforts to improve the Bill. This amendment aims to clear up any confusion about so-called “service providers”, meaning persons or companies which provide services to FOI bodies. On Second Stage of the Bill, the Minister of State, Deputy Harris, said in the House:

Where bodies provide services under contract to a freedom of information body, they will be covered by the regime. I presume this will be a feature of the debate we will have on Committee Stage.

While I note the fact, the amendment is useful in clarifying that not only persons but companies that provide services to FOI bodies will be covered by the legislation. If a contractor receives millions of euro of taxpayers’ money, the public’s right to access should be clearly stated. The amendment would clear up confusion and ensure State contractors are open to public scrutiny. It is worthy of consideration.

25/09/2014N01300Senator Ivana Bacik: I am interested in Senator Quinn’s point. I would make a slight grammatical change to it. I wonder if “entity” would be a better word than “person,” given that “entity,” as defined in section 2, covers a person, company or group.

25/09/2014N01400Senator Feargal Quinn: Yes.

25/09/2014N01500Senator Ivana Bacik: Given that we are using it throughout the Bill, would the Minister consider replacing “person” with “entity” on Report Stage?

25/09/2014N01600Senator David Norris: I am confused as to why amendment No. 11 is grouped with amendment No. 5.

25/09/2014N01700Senator Thomas Byrne: I withdraw amendment No. 11.

321 Seanad Éireann

25/09/2014N01800Acting Chairman (Senator Paschal Mooney): The Senator cannot do that until we reach it.

25/09/2014N01900Deputy Brendan Howlin: Maybe if I respond-----

25/09/2014N02000Senator David Norris: It seems to me that the grouping should comprise amendments Nos. 9, 10 and 11-----

25/09/2014N02100Acting Chairman (Senator Paschal Mooney): That has already been discussed. Would the Senator allow the Minister to answer?

25/09/2014N02200Deputy Brendan Howlin: We are discussing amendments Nos. 5, 11, 18 and 35.

25/09/2014N02300Acting Chairman (Senator Paschal Mooney): Correct.

25/09/2014N02400Deputy Brendan Howlin: I fully appreciate Senator Quinn’s sentiments that where a non- FOI body, whether public or private, carries out a service on behalf of an FOI body, the records relating to the service should be subject to FOI. On receipt of the Senator’s amendment I requested confirmation from the Office of the Attorney General that “person” as referred to in the definition of service provider on page 14 of the Bill does include a company within the meaning of the Companies Act. Therefore, the intent of the amendment, that “person” would capture the word “company”, is already, on the advice of the Office of the Attorney General, the position.

Amendment No. 11, tabled by Senator Byrne and other Fianna Fáil Senators, raises the issue of Bus Éireann’s school transport operations. It was always intended that the Bill would include Bus Éireann school transport services carried out on behalf of the Department of Educa- tion and Skills. I advised that the service would be covered within six months of the Bill’s enactment through the restoration of the application of FOI records held by service providers in so far as the records related to a service provided under contract to the Department. This was the original construction of the Bill. However, a recent High Court judgment determined that the Department of Education and Skills does not have a contract with the transport providers but has what the High Court determined to be an administrative arrangement - not a contract - with Bus Éireann for school transport services. On foot of this judgment, I amended the definition of service provider in section 2 on Report Stage in the Dáil to ensure that school transport services provided by Bus Éireann to the Department of Education and Skills would be subject to FOI. The amendment I made in the Dáil addresses the concerns of Senator Byrne and his colleagues.

On amendment No. 18, also tabled by Senator Byrne and his colleagues, it would not be possible to provide a list of bodies that might provide services under contract to an FOI body into the future. It is deemed unnecessary to provide such a list, since the provision came into operation subsequent to the 1997 Act, and I am not aware of any difficulty that has arisen since. It would be an extraordinary thing to try to project which bodies might conceivably provide services into the future.

Amendment No. 35 seeks to remove Bus Éireann from the list of exempt bodies, and the House knows my view on this. Where there is a unique provider of a service, such as the school transport service, it is subject to FOI, but where it is in direct competition with the commercial sector it would seriously disadvantage a State body if it uniquely were subject to FOI. There- fore, I am not extending FOI to the commercial semi-State bodies that are competitive.

25/09/2014N02500Senator Feargal Quinn: I thank the Minister for his explanation, but I am still not happy.

322 25 September 2014 Section 2 states: “ “service provider” means a person who, at the time the request was made...”. While the present Attorney General has said it also applies to a company, I question whether a future Attorney General or a lawyer might argue very strongly that he or she understood it to mean a person or individual. Senator Bacik’s suggestion of “entity” would solve this, and I urge the Minister to consider it. I will not press the amendment, in the hope that the Minister will reconsider it before Report Stage.

25/09/2014N02600Deputy Brendan Howlin: While we all want simplicity and plainness in the law, we are obliged to have consistency in the use of terms throughout the law. That is why we have the Interpretation Act, which applies to all legislation. Section 16(c) of the Interpretation Act 2005 determines that “A “Person” shall be read as importing a body corporate, whether a corporation aggregate or a corporation sole, and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of “person” shall be read accordingly. That sounds legalistic but for consistency and transparency, we cannot start using different phrases in different enactments.

25/09/2014O00200Senator Feargal Quinn: I understand the point but I urge the Minister to reconsider whether it is possible that that could be misunderstood in the future.

Amendment, by leave, withdrawn.

25/09/2014O00400Acting Chairman (Senator Pat O’Neill): Amendment No. 6 is in the name of Senator Quinn. Amendments Nos. 6, 17 and 27 are related and may be discussed together by agreement.

25/09/2014O00500Senator Feargal Quinn: I move amendment No. 6:

In page 15, between lines 2 and 3, to insert the following:

“(6) The interpretation of “personal information” in this section shall not be construed so as to impede or otherwise restrict public access to the records held by the General Register Office in accordance with section 61 of the Civil Registration Act 2004 or in accordance with the Civil Registrations Acts 2004 to 2012.”.

This issue was brought to my attention by the Genealogical Society of Ireland, which was anxious to have this amendment accepted. The insertion of this new subsection will guarantee that this Bill does not impede access to information vital for genealogical research or historical reasons. The amendment aims to ensure that the current status of the records of the General Register Office as public records will be reaffirmed. It is important to include this text in the legislation.

The report of the Joint Committee on Finance, Public Expenditure and Reform pointed out that this legislation could have the unintended consequence of restricting rather than broaden- ing access to certain records, especially those of a genealogical potential. Genealogists are very concerned about the reclassification of the records held by the General Register Office from their current status as “public records on individuals held by the State” to personal records on individuals held by the State.

The reference in section 2(1) of the principal Act is of particular concern as it makes direct reference to the interpretation provided by the Civil Registration Act 2004, which deals with life events of the individual as follows: “event” means a birth, stillbirth, adoption, foreign adoption, marriage, death, decree of divorce or decree of nullity occurring or granted anywhere in

323 Seanad Éireann the State or a birth to which section 26 or 27 applies or a death to which section 38 or 39 applies and includes a birth, stillbirth, adoption, foreign adoption, marriage or death that could have been, but was not, registered in a register formally maintained under the repealed enactments.

However, section 2(1)(b)(viii) of this Bill states, “information relating to the religion, race, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2(1) of the Civil Registration Act of 2004) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual”. That seems to suggest that a number of the above recorded events would be reclassified as personal records. Indeed, parts of section 2(1) (b) could be interpreted so as to impede access to land records, electoral rolls and other records of huge interest to genealogists and to local historians. The Genealogical Society of Ireland believes that is an extraordinary and wholly unnecessary reclassification of public records. It also believes that an amendment such as the one I have tabled would clear up other issues such as death certificates and refusals for information by freedom of information, FOI, bodies.

Overall, the organisation believes that the Bill as drafted has the potential, although I am sure unintentionally, of greatly impeding genealogical research by anyone not directly con- nected with the family or the individual being researched. For these reasons I urge the Minister to accept this amendment to ensure that genealogists are not restricted in their work and that the spirit of the freedom of information principle is protected.

My amendment No. 17 also relates to genealogy matters. It simply aims to further guarantee the right of access to records. It is not a ground-breaking amendment but a simple clarification that aims to ensure that FOI bodies consider the public’s access to records. The clear statement in this Bill of public ownership and right of access to records is very important, especially when improving our overall FOI culture, that is, I believe a clear principle of public ownership and right of access to our genealogical heritage should be included in the text of the legislation. This can serve as a guide for FOI bodies regarding public records, laying the foundations for what I would call a customer charter.

From a business perspective, this amendment aims to further ensure that this country contin- ues to develop its expanding ancestry tourism market and top sustainability of Ireland as a des- tination for genealogical research. More important, this amendment aims to ensure a people’s human rights as well as their cultural rights that are protected in terms of allowing them access to records. I hope the Minister can accept this amendment because I believe it will further improve the relationship between FOI bodies and the public, and ensure that the spirit of freedom of information is further enhanced.

Amendment No. 27 refers to including “in relation to the operation of the principle of public ownership and right of access to a genealogical heritage.” This is a relatively straightforward amendment and one that the Genealogical Society of Ireland supports. It is about improving the culture of freedom of information and, in some ways, ensuring there is a better interaction between the service provider - the FOI bodies and the customer - and the public who are seeking records.

As I stated earlier, the word “principle” is very important. I believe the over-arching principle of public ownership and right of access should be clearly stated in this Bill. State bodies should give the Minister this as a guiding principle, and I hope the Minister can accept this amendment for that reason.

324 25 September 2014 As the Minister can gather, to a certain extent I am quoting what the Genealogical Society of Ireland has asked me to put forward.

25/09/2014O00600Acting Chairman (Senator Pat O’Neill): I call Senator Norris to speak to amendments Nos. 6, 17 and 27.

25/09/2014O00700Senator David Norris: I also received this briefing from the Genealogical Society of Ire- land and I completely concur with what Senator Quinn has said. I would have put down the amendments but Senator Quinn put them down first and I am happy to add my name in support of it. It would be extraordinary if a freedom of information Bill had the impact of restricting information in what are relatively non-controversial areas.

25/09/2014O00800Deputy Brendan Howlin: Marital status, trade union membership, sexual orientation - that should all be “FOIable”.

25/09/2014O00900Senator David Norris: Unless people want their sexual orientation to be known, they will not put it down anywhere and therefore it will not exist. That is the fact.

25/09/2014O01000Deputy Brendan Howlin: But if it is, it should be accessible. The Senator does not want it-----

25/09/2014O01100Senator David Norris: Personally, it does not bother me in the slightest. I do not think too many people in this country are unaware of my sexual orientation anyway.

25/09/2014O01200Deputy Brendan Howlin: We are not doing it for ourselves, Senator. We are-----

25/09/2014O01300Senator David Norris: With regard to the sexual orientation point-----

25/09/2014O01400Deputy Brendan Howlin: Or anything else. Marital status, trade union membership-----

25/09/2014O01500Senator David Norris: I was thinking in terms of the genealogical aspect, and records already exist including parish records, censuses and so on. It seems to be unnecessarily restric- tive. I do not see any reason the Minister should not accept the amendments. I was in the House when Prime Minister Hawke from Australia was visiting and there was an exchange between him and the then Taoiseach of genealogical information regarding Irish people in Australia. That had the effect of increasing tourism. I refer to the recent phenomenon of The Gathering when people returned to Ireland looking for their roots. What Senator Quinn is attempting to do, in association with the Genealogical Society of Ireland, is to ensure continued access to this information.

If the Minister can guarantee and put it on the record of the House that access to this kind of information will not be barred under the operation of this Act, I am sure the House will be satisfied but it is important that people interested in their family background and the general conditions in the country should not be frustrated. It is part of our culture and our history, and it should be accessible to citizens.

25/09/2014O01600Deputy Brendan Howlin: I thought Senator Norris would have been on my side on this issue. I will first deal with the concerns expressed by Senator Quinn and those expressed on behalf of the Genealogical Society of Ireland by Senator Quinn. I can categorically reassure the Senator that there is no reclassification of what constitutes personal information in this Bill. The definition of personal information in the Bill has been updated simply to take account of changes in the 17 years since the 1997 Act was drafted. In that regard, the reference to the 325 Seanad Éireann Civil Registration Act in the definition of personal information relates to civil status. It does not matter whether a person is married or unmarried and it should not matter whether a person is in a civil partnership. That is not the type of information that should be accessible. We have updated the legislation to include other things. Basically, it takes account of the changes in the legal position of civil partnership since the original Freedom of Information Act was enacted.

I have also included information on whether an individual was or was not a member of a trade union, because there are many places where a person would not be employed if the employer knew he was a member of a trade union.

25/09/2014P00200Senator David Norris: What is the point of being a member of a trade union if it is unable to represent a person?

25/09/2014P00300Deputy Brendan Howlin: Senator Norris should talk to the trade union movement if he does not understand the point.

25/09/2014P00400Senator Marie Moloney: A good deal of that happens.

25/09/2014P00500Deputy Brendan Howlin: Many people have been shut out, sacked, fired and discrimi- nated against because of their trade union membership.

25/09/2014P00600Senator David Norris: I am aware of that.

25/09/2014P00700Senator Marie Moloney: They can represent a person afterwards at tribunals and so on.

25/09/2014P00800Deputy Brendan Howlin: These are the types of personal information in question. The idea of FOI is not that anyone can have a prurient trawl of everyone else’s data. The purpose is to have information important to the public discourse available in public; it is not to have everything known about people available. Let us consider the things that are excluded. Information on the medical, psychiatric or psychological history of an individual is not subject to FOI; nor is information relating to the financial affairs of an individual, by and large, and so on. The details are listed on page 14 of the original 1997 Act.

I am making no change to the current status of records of the General Register Office as public records. I see no basis for Senator Quinn’s concern that parts of the definition could be interpreted as impeding access to records or electoral rolls. That is not the case. Certainly, that is not my intention, and my advice from the parliamentary draughtsman is that this is not the effect of it. The updating of the definition of personal information that I have carried out has no impact, good, bad or indifferent, on access to information. It simply modernises the definition of personal information to include the two things to which I have referred. Marital status has been broadened to include civil status, and I have included trade union membership as well.

The updating does not impact on access. Indeed, an amendment on Report Stage in the Dáil that I accepted expanded the definition of what is not classified as personal information. Infor- mation relating to the terms and conditions of any individual who holds or has held any public office or any position in a body subject to freedom of information requirements and in respect of the remuneration of that person was excluded under the original Bill but is now included. Information on everyone who is being remunerated from the public purse, unless it is specifically excluded, is incorporated into the Bill.

The General Register Office is part of the Department of Social Protection. All the information held in the General Register Office is therefore subject to freedom of information provi- 326 25 September 2014 sions, and this will continue to be the case. The proposed legislation does not prevent access to the register as provided for under the Civil Registration Act.

In the case of amendments Nos. 17 and 27, I am satisfied that the Freedom of Information Act can be availed of by genealogists for the purpose of seeking access to records in connection with a search in respect of an individual’s genealogical heritage. That has been the case up to now and it will continue to be the case. It is not affected in any way, good, bad or indifferent, by what I am suggesting now. I am not of the view that the legislation should be reconfigured specifically with the purpose of identifying such searches as a particular function of the Bill. Freedom of information requests can be used for genealogical research, but that is not the prime purpose of the legislation. I have previously pointed out in this House, for example, that if Senator Norris submitted a freedom of information request to all Departments to trace the Norris family from the Norman conquests-----

25/09/2014P00900Senator David Norris: It would not get very far. My father was English.

25/09/2014P01000Deputy Brendan Howlin: -----and set 20 civil servants to work, that would not be the intended use of the provisions. People will not be excluded from doing normal trawls, but we should not embed that as a central function of the Bill. All the records covered by the Acts are available for FOI requests, subject to the legislative protections in respect of personal information to which I have referred. There is nothing in the Bill preventing the General Register Of- fice or any other public body from giving access to personal information, provided it is done in compliance with the legislation. I believe this meets the full intention. I hope the concerns of Senator Quinn are fully assuaged by what I have said.

25/09/2014P01100Senator David Norris: I wish to clear up a couple of things. I am still not convinced about marital status being excluded from the freedom of information provisions, and I will outline why. First, a marriage or civil partnership is a public declaration. Why it should subsequently be restricted is beyond me. Second, there may be cases in which a person is considering getting involved in a relationship and institutionalising it through marriage, civil partnership or whatever there is. Let us suppose there was a concern that the other party had already been involved in a civil partnership or marriage. Surely the person should be entitled to research and examine the matter to determine if there are any records and find out the position to avoid a bigamous situation. First, it is public information and, second, it is useful to people who are considering getting involved in these relationships.

Reference was made to the trade union situation, and I understand the sensitivity in this regard. I am a member of three trade unions and I am a strong supporter of the trade union movement. If membership of a trade union must be kept secret, how can the trade union effectively represent that member?

25/09/2014P01200Senator Marie Moloney: That is no problem. It can do so.

25/09/2014P01300Senator David Norris: I do not see how it can.

25/09/2014P01400Senator Marie Moloney: Of course it can.

25/09/2014P01500Senator David Norris: I would be interested to hear. It would be part of the learning process for me.

25/09/2014P01600Senator Marie Moloney: I will speak to Senator Norris afterwards.

327 Seanad Éireann

25/09/2014P01700Senator David Norris: I am genuinely keen to find out. Let us suppose an individual is victimised at work and the trade union is called in. Then it is perfectly obvious that the person is a member of the trade union. I know there are companies in this country that deny the right to membership of a trade union to their employees. This is completely and utterly wrong. Either it is or it should be unconstitutional. Anyway, I am unsure how effectively a trade union can represent a member who is anxious to conceal that membership from the employer.

25/09/2014P01800Acting Chairman (Senator Pat O’Neill): Senator Norris is next. Sorry; Senator Quinn is next.

25/09/2014P01900Senator Feargal Quinn: I do not have a beard but I can understand how you could make that mistake on occasions. I understand the Minister’s point and that it is not the prime purpose of the legislation to do some of the things that have been done here. However, Senator Nor- ris makes a strong case in regard to marriage and civil partnership. I am unsure whether that should not be evident, particularly for genealogical purposes.

Reference was made to trade union membership. I have not been a member of a trade union, except, perhaps, IBEC, which is a trade union of sorts. If trade unions do not want membership disclosed then I can understand why the Minister is responding to the request. I take the point. Certainly, I do not intend to push this amendment at this stage. If any changes are to take place, perhaps they might take place between now and Report Stage.

25/09/2014P02000Senator Thomas Byrne: For my tuppence worth, I agree with Senator Norris on marital status but I disagree on the trade union issue.

25/09/2014P02100Senator Marie Moloney: I take the opposite view. I rather agree with the trade union point. I worked with a trade union before I came into this job. I know that many employers will not employ people if they are members of a trade union. Many people pay by direct debit, but a major service is provided by trade unions in the event of someone being let go by an employer in the wrong, being unfairly dismissed or whatever.

1 o’clock

The unions can represent one in hearings of the Labour Relations Commission and there are many steps that they can take afterwards. In addition, one has access to the legal team of the union afterwards. Believe you me, it is work being in a trade union. I agree that it should be exempt.

25/09/2014Q00200Deputy Brendan Howlin: The proposal would broaden the scope of the FOI mechanism beyond its intention. It is simply a mechanism to provide information to people. Nowadays it would be quite improper to ask a job applicant about his or her marital status or whether he or she is a member of a trade union. Certainly in the public service, one would not be allowed to ask. One is not allowed to make decisions on the basis of discriminating against somebody because he or she is married or single. It cannot be stated in an advertisement for a job that only single or married people may apply. That is how it is and we should not be able to circumvent modernised labour law with a freedom of information Act. I have stated my intention in that regard.

I hope I have answered Senator Quinn’s general question on access. He can assure the Genealogical Society of Ireland that it is not disadvantaged a whit by the changes I am now proposing. 328 25 September 2014 Amendment, by leave, withdrawn.

Section 2 agreed to.

Amendment No. 7 not moved.

Section 3 agreed to.

Sections 4 and 5 agreed to.

SECTION 6

25/09/2014Q00900Senator Sean D. Barrett: I move amendment No. 8:

In page 15, between lines 32 and 33, to insert the following:

“(b) a local authority;”.

I hope it is an omen for two days hence that there is a Kilkenny person in charge of these proceedings today. The purpose of my amendment is to include local authorities to rule out doubt. Having an explicit reference might assist the citizen in dealing with local authorities. The Minister said several times that all bodies are covered, which I accept, but I have seen some correspondence on citizens’ attempts to engage with local authorities and I noted that the level of arrogance, particularly in the use of Part 8, is not in the spirit of this Bill. Would it assist the Minister to have a specific reference to “a local authority”? He may conclude it is covered elsewhere or by his use of the word “all”. I hope the county managers are listening. It is worrying that although a motion was passed by 54 votes to two at a recent meeting in Dublin, the two were declared the successful people. It is necessary to bring some county managers to heel, and it is necessary to do so at a very early stage so citizens can engage on the basis of being secure in the knowledge that the local authority is covered. They should not be blinded by legal science stipulating it is covered somewhere else. My amendment’s purpose is to state it up-front. I do not wish to delay the House. I seek an assurance that those making requests of county and city councils will have access to the provisions and assistance the Minister has set out to give them in this Bill.

25/09/2014Q01000Deputy Brendan Howlin: I thank the Senator again. Local authorities are established under legislation and therefore comply with the definition of “public body” in section 6(1)(b) of the Bill. In any event, section 6(1)(h) provides that anybody already subject to FOI under the 1997 Act will remain subject to it under this legislation. Therefore, they are caught twice, to be doubly sure. On that basis, I do not propose to accept the amendment. Local authorities are now and will continue to be subject to FOI provisions.

25/09/2014Q01100Senator Sean D. Barrett: I will not press the amendment. Suffice it to say that I have come across cases where people certainly have not entered into the spirit of what the Minister is saying. However, the law is in place and I thank the Minister.

Amendment, by leave, withdrawn.

25/09/2014Q01300Acting Chairman (Senator Pat O’Neill): Amendments Nos. 9, 10, 12, 24, 25, 31, 32 and 41 are related and may be discussed together. Is that agreed? Agreed.

25/09/2014Q01400Senator Thomas Byrne: I move amendment No. 9:

329 Seanad Éireann In page 15, between lines 32 and 33, to insert the following:

“(b) the Office of the President;”.

These amendments seek to insert some extra bodies and important offices so they will be within the scope of the legislation.

25/09/2014Q01500Deputy Brendan Howlin: 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 Ire- land 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. Ac- cordingly, 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 fi- 330 25 September 2014 nancial 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 Re- lations 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.

25/09/2014R00200Senator Thomas Byrne: When we talk about the Office of the President, I am not talking about President Michael D. Higgins. I have never discussed him in this Seanad and will not do so today. Let this be understood before the debate goes ahead.

25/09/2014R00300Senator Marie Moloney: Sure.

25/09/2014R00400Senator Thomas Byrne: The Constitution talks a lot about the presidency. It talks about the possibility in some cases, as mentioned before the last election, of impeaching a President. There could well be discussions at some time in the future about the President, but I think the Office of the President is different from the President. Nobody is looking under FOI legislation for a letter that he sends to a Head of State, in the same way that I could seek a letter the Minis- ter present might send to the Minister with responsibility for expenditure in Belgium. In terms of the Office of the President, the money spent on the administration of it should be subject to FOI legislation. Many of the people who work it are civil servants who do a great job.

331 Seanad Éireann

25/09/2014R00500Deputy Brendan Howlin: It is subject to normal accountability procedures.

25/09/2014R00600Senator Thomas Byrne: In terms of their actions, they would be subject to FOI legislation if they were working in a different Department, but I would like to see the scope being broadened to some extent. We are not looking for information on the President’s affairs. We are not looking for information on his business, as Head of State, with other Heads of State, meetings with the Taoiseach or any of these functions. However, the Office of the President should be subject to some level of scrutiny.

On the NTMA, I urge the Minister not to just listen to the Minister for Finance but to talk to some of the stockbroking firms around town that have lost staff to the NTMA. They have told me that the reason they have lost staff is that it pays higher wages. I accept the point that things might change, but I was told about the higher wages paid when we met various interest groups around town. The Minister should make a few more telephone calls on the matter before making his final decision.

25/09/2014R00700Senator Sean D. Barrett: Amendment No. 25 in my name was listed in the midst of Sena- tor Thomas Byrne’s amendments and I thank the Minister for his reply. The purpose of my amendment is to delete the line: “any of the Supervisory Directives, within the meaning of the Central Bank Act 1942”. I refer to the supervision that failed and which has been a disaster for everybody in the House and the country. A journalist calculated that an official in charge had forgotten, could not remember or had no recollection of evidence 89 times. All we have to do is look at the material we have found since produced in the Regling-Watson, Nyberg, Wilson and Honohan reports, by the Comptroller and Auditor General and the Committee of Public Accounts. There was a building society - I kind of knew as it was located not far from me - and everybody knew it was on the rocks. The people in charge - this the phrase that has been used to describe them, as the Minister knows, were asleep at the wheel.

The idea of stricter regulation of the appointment of directors to banks seems to have disap- peared into the sand, a phrase used by Mr. Sean Cromien, a former Secretary of the Department of Finance. Why did people move from the Department of Finance to the Central Bank more or less on an assembly line? Why did nobody know that when one moved from a banking system based on deposits to wholesale borrowing things changed? Why did nobody in the banks know that one had to have strict rules on loan to value and loan to income ratios when lending?

Like Senator Aideen Hayden, I commend the work Deputy Ciarán Lynch is doing with the committee. Banking is the last sector which should receive an exemption because it crashed the country. In the Central Bank which had 1,400 employees apparently two of them were supposed to regulate banks. Finding all of this information, as a society, was like extracting teeth. I would hate to think the slap dash way the Central Bank regulated was acceptable to anybody in Parliament. We have all paid the price - all of our constituents have it, which is why I tabled my amendment. We must get the message across to those involved in banking and those in the banking section of the Department of Finance and the Central Bank that we want records to be kept and that what went on in the country was unacceptable and that it had such disastrous consequences.

As the Minister will know, one of the matters on which Deputy Ciarán Lynch and the committee will place emphasis - not just the night when the bills finally came - is the hopeless analy- sis of banking by the bank regulator and hopeless conduct of banks. Do we know, for instance, if the incentive structure in Irish banking was changed in order that people would not bother to 332 25 September 2014 check incomes and if banks paid bonuses for shovelling money out? A large amount of damage was done by this sector, which is why I was reticent that it should receive an exemption. Of all the information sought we need to know how they engaged on supervisory directives.

It has been mentioned that the Europeans told us to do this. The Europeans were not of much use to us when this country had to take the burden of defending the euro. I hope there will be wider discussions between the Minister for Finance and Mr. Draghi. Ireland was let down by design faults in the euro system. Did anybody know this in the Central Bank? We badly need its records and I would appreciate any help the Minister can give us in that regard.

My concern is that I am not so sure the banks and the property sector would not do the same all over again. I am not so sure the new Central Bank Governor Honohan is trying to build is powerful enough yet to take on the continuity Central Bank which was rubbish and deserved the disapprobation of everybody for the way it superised bank regulations. These are my concerns that led to my tabling of amendment No. 25.

25/09/2014R00800Deputy Brendan Howlin: I will deal with Senator Sean D. Barrett’s concerns first. He has not said anything with which I do not fully and completely agree. I am afraid that there was a deliberate policy which had nothing to do with the Central Bank of light touch regulation that disempowered proper supervision for a long period. These matters will be investigated in a different fora and we will see what transpires over time. I made it clear that I encompassed that as far as legally possible. I cannot propose to this House law that is contrary to European law and under the European system of central bank statutes and the EU directives relating to banking supervision, there is a requirement for secrecy regarding some of the operations of the Central Bank of Ireland as a subset of the European system under the European Central Bank and it is not legally possible for us to enact a proposal that undermines European law, which has uniform application across the eurozone, in that regard.

With regard to the Office of the President, Senator Byrne instanced all the aspects that should not be covered by FOI, with which I agree, but then he said that the only aspect that might be captured is the financial affairs of the office, how the money is disbursed and so on. That is covered by a formal Vote to the office, subject to normal scrutiny by the Comptroller and Auditor General and the Oireachtas. I agree with him regarding all the aspects that should not be captured by FOI and it is inappropriate for us to do that.

I hear what the Senator said regarding the NTMA.

25/09/2014S00200Senator Thomas Byrne: A health Estimate is put before the Dáil as well and it is voted on. It also votes on the President’s Vote.

25/09/2014S00300Deputy Brendan Howlin: More than 100,000 people work in the health system.

25/09/2014S00400Senator Thomas Byrne: Yes, but we often do not often find out details until we send in numerous FOI requests. We do not find out how the money was spent or whether it was spent rightly or wrongly until a response to an FOI request issues. The fact that it is voted on in the Dáil is surely enough to make it subject to FOI and the Minister should consider that. There must be a way of drafting this to exclude the incumbent’s functions as Head of State but to include how the office spends money. We need accountability at all levels of society. The Presi- dent has a job to do but he or she has an Accounting Officer. Is he or she exempt?

25/09/2014S00500Deputy Brendan Howlin: He or she is exempt from FOI but is answerable to the Comp- 333 Seanad Éireann troller and Auditor General and the PAC and accountable for the expenditure of every cent to the Dáil in a transparent way.

25/09/2014S00600Senator Thomas Byrne: But the Accounting Officer is exempt from FOI.

25/09/2014S00700Deputy Brendan Howlin: Yes but he is the Secretary General to the President-----

25/09/2014S00800Senator Thomas Byrne: But his functions are exempt from the FOI legislation because he is in the President’s office. That is no reflection on the incumbent, who is a good person. The officeholder changes from time to time. Is the Minister happy that one branch of the Civil Service is excluded under the legislation? He is essentially arguing in favour of this. The Dáil votes on the money provided to the President’s office. The Minister is correct that the office is accountable to the Comptroller and Auditor General and PAC, although it is not accountable to an Oireachtas joint committee. Why then exclude those functions from the legislation? There is no logic to it.

25/09/2014S00900Deputy Brendan Howlin: I have explained this in detail. The Senator knows my views full well. The only net point he is raising is accountability in terms of expenditure. That is fully transparent and accountable through the formal financial controls over any Vote. A tiny group of people works in the Office of the President. It is not right to compare its expenditure to the billions of euro expended by the health service on thousands of different functions.

25/09/2014S01000Senator Thomas Byrne: The Minister introduced that equation into the debate.

Amendment, by leave, withdrawn.

Amendments Nos. 10 and 11 not moved.

25/09/2014S01300Senator Thomas Byrne: I move amendment No. 12:

In page 15, between lines 32 and 33, to insert the following:

“(b) receivers and administrators working for/employed by the National Asset Man- agement Agency;”.

Amendment put and declared lost.

Section 6 agreed to.

Amendment No. 13 not moved.

Section 7 agreed to.

SECTION 8

25/09/2014S01900Senator Feargal Quinn: I move amendment No. 14:

In page 21, between lines 17 and 18, to insert the following:

“(5) If the material specified in paragraph (e) of subsection (2) is not published and made available in accordance with this section or the material so published and purport- ing to be the material aforesaid is incomplete or inaccurate and a person shows—

(a) that he or she was not aware of a rule, procedure, practice, guideline, interpreta- 334 25 September 2014 tion or precedent referred to in subsection (2)(e) or of a particular requirement of the rule, and

(b) that, but for such non-publication, non-availability, incompleteness or incorrect- ness, as the case may be, he or she would have been so aware, the public body concerned shall, if and in so far as it is practicable to do so, ensure that the person is not subjected to any prejudice (not being a penalty imposed by a court upon conviction of an offence) by reason only of the application of the rule or requirement if the person could lawfully have avoided that prejudice if he or she had been aware of the rule or requirement.”.

The amendment re-inserts an important provision in the original FOI legislation. The Bill removes the legal protection regarding the right to redress by a member of the public if an FOI body does not fulfil its legal right to print a publication scheme or produces such a scheme in an inadequate manner. The original Act provides the public with the opportunity to seek redress before the courts if the publication scheme is not in place or is inaccurate. The amendment will restore this provision. The Minister is going backwards by removing it and I urge him to properly consider the amendment to ensure citizens are able to exercise their full rights when it comes to accessing information. It is worthy of consideration.

25/09/2014S02000Deputy Brendan Howlin: Senator Quinn has raised an important issue - the right to redress by a member of the public if a public body fails to fulfil an obligation, in this case concerning publication of information. I considered whether this provision should be maintained in making an amendment to the Bill in the Dáil to specify key information that would be required for inclusion in a publication scheme. However, when I examined this closely, I questioned the appropriateness of the provision in an FOI Act.

If a public body, or a body funded by the public purse, provides a service or operates a scheme for members of the public, and by virtue of the fact that the body did not publish information or published incomplete or inaccurate information, which resulted in a person being prejudiced or penalised or impacted negatively in some way because he or she was not aware of rules or procedures concerning that scheme or service, he or she should have a right to redress in the normal way. That is how it is done under the Ombudsman’s legislation. The person has the right to redress. The old adage in law is ignorance is no defence. There has to be an impartial adjudication of whether, for example, I did not pay my water charges because I did not receive the letter. There has to be some reasonableness about this. Rather than providing for this in FOI legislation, which simply relates to information, the non-publication of information or any other act that impacts negatively on the citizen is subject to the broadened powers I have given to the Ombudsman in the most recent legislation. That is the appropriate vehicle to deal with the issue raised by the Senator. I considered this and that is the way it should be as opposed to being couched in an odd way in FOI legislation. It is a general administrative issue that would have an impact across the public service where people gave false information or withheld information. That has to be adjudicated on and the Ombudsman is the right person to do that to see if the complainant has a case or whether he or she is trying it on.

25/09/2014S02100Senator Feargal Quinn: I understand what the Minister is saying and I accept his reply.

Amendment, by leave, withdrawn.

Section 8 agreed to.

Sections 9 and 10 agreed to. 335 Seanad Éireann NEW SECTION

25/09/2014S02600An Cathaoirleach: Amendments Nos. 20, 26 and 28 to 30, inclusive, are related to amendment No. 15 and they may be discussed together.

25/09/2014S02700Senator Thomas Byrne: I move amendment No. 15:

In page 25, between lines 35 and 36, to insert the following:

“11. The Minister shall, within 12 months of the enactment of this Act, make provision for the establishment of a database to include all information released under the Act and such database shall be made available to the public.”.

25/09/2014S02800Deputy Brendan Howlin: I share the objective of Senators Quinn and Barrett in amendments Nos. 20 and 28 in respect of ensuring good records management. The issue was considered in depth during the review of FOI legislation carried out by both an internal group of public bodies and an external group composed of academics, journalists and representative groups while the Bill was being drafted. The external group’s report, which was published on my Department’s website last July, underlined the importance of good record-keeping and records management.

On amendments Nos. 15 and 30, I have also given consideration to the issue of disclosure logs and the keeping of freedom of information statistics. The report of the external review group set out that some Departments, including the Departments of the Taoiseach and Envi- ronment, Community and Local Government, already publish a disclosure log. In addition to publishing details of what has been requested, a number of other Departments, such as the Departments of Communications, Energy and Natural Resources and Transport, Tourism and Sport, publish the records disclosed. While the external review group recognised the benefits of publishing such information, it also acknowledged the potential legal, administrative and practical difficulties of widely publishing information released under freedom of information legislation. In addition, the Departments in question advised that there was no evidence that the publication of the records led to a more efficient freedom of information regime which reduced the number of freedom of information requests received from the same individual.

Section 48 is a general overarching provision on the publication of a code of practice and guidelines for freedom of information. While I do not intend to make specific reference in section 48 either to the records management issue or to the provision of statistics on freedom of information, as proposed by the Senators, I have addressed these issues in the draft code of practice that I published. I hope Senators will have an opportunity to examine the draft code in some detail.

In amendment No. 26, Senator Byrne of the Fianna Fáil Party seeks that a code of practice be drawn up and published within three months of enactment. I hope my decision to publish the draft code of practice last July meets the Senator’s concerns.

In amendment No. 29, Senator Byrne seeks to substitute the word “shall” for the word “may” in the sentence, “The code shall include provisions to promote the publication of official and other information”, on page 71 of the Bill. I assure Senator Byrne that the Bill already provides that public bodies “shall” prepare and publish publication schemes, which are regarded as best practice internationally for FOI as a means of publishing and disseminating significant information relating to functions and activities of public bodies in a proactive way. 336 25 September 2014

25/09/2014T00200Senator Feargal Quinn: I will speak briefly to amendments Nos. 28 and 30. It will be necessary to ensure electronic information is provided. Let us take the issue of obtaining records on Anglo Irish Bank, a point made by Senator Barrett. If we had known what was going on in that bank, could we have tackled the problem earlier and saved taxpayers billions of euro? I hope the Minister will be open to accepting the amendment.

25/09/2014T00300Deputy Brendan Howlin: Private companies are not subject to freedom of information legislation.

25/09/2014T00400Senator Feargal Quinn: That is correct but there must be some link. Reference was made to a company that was awarded a major contract from the State.

25/09/2014T00500Deputy Brendan Howlin: It was not.

25/09/2014T00600Senator Feargal Quinn: The Minister is correct in the case of Anglo Irish Bank.

25/09/2014T00700Senator Ivana Bacik: It took a large amount from the State.

25/09/2014T00800Senator Feargal Quinn: Yes, it was not contracting to the State.

25/09/2014T00900Deputy Brendan Howlin: We already knew that when it was taking from us.

25/09/2014T01000Senator Feargal Quinn: I accept the Minister’s point.

Amendment No. 30 proposes that the codes may include provisions to publicly document cases in which bodies that are subject to freedom of information legislation fail to release information, including the time it takes for such bodies to release information. The amendment has been tabled in response to the launch in 2011 of the website, FOIA.gov, which allows people to see whether Government agencies in the United States are fulfilling their obligations to disclose information under the country’s freedom of information laws. We should consider naming and shaming State institutions and branches of Government that do not release information or do not do so in a timely manner. This may be pertinent given that certain State-funded quangos or institutions still do not reveal key data such as the salaries of their chief executives. The amendment aims to give members of the public better access to records by showing which bodies are not fulfilling their obligations. This will give bodies subject to freedom of information provisions a nudge to release information. I hope the Minister will consider accepting the amendment.

25/09/2014T01100Senator Sean D. Barrett: Amendment No. 20 is in my name. The Department of Finance had and should have had a role in this issue. After the crisis hit, some people argued that they had seen the bust coming, knew when the boom would end and were worn out telling people the bubble would burst. How come the records showed that these people were all what one could describe as “soft landing merchants”. The records were clearly not comprehensive and adequate. People deliberately set out to deceive, yet we hear that everyone was on the right side and the crisis was caused by the sloth, neglect or indolence of someone else. Those who do not have records should receive some sanction in law, rather than by means of a protocol or code of conduct because it is their job to keep records. I agree with Senator Quinn and the Minister on the value of having records. There were massive failures in information systems.

Does the Minister not consider it a bad idea to have a banking system based solely on property? We are trying to encourage innovation and entrepreneurship, yet our banking system is obsessed by property. We are not being told anything about the system by the Central Bank, 337 Seanad Éireann nor do we hear of any concerns about the system in the Department of Finance. While I hope our procedures have improved, I frequently doubt that is the case. I believe we could do the same all over again.

I ask the Minister to consider introducing some form of sanction. We want better records than were revealed in this awful episode which did so much damage to the country. Practices such as moving money into a financial institution at ten minutes before midnight and moving it out again just after midnight to pretend it was lodged in the bank for the entire year or disguising the amount of deposits were condoned. A great deal of deception and corruption was missed.

The Minister used the phrase “light touch regulation” in connection with the banking sector when the term “non-supervision” is more appropriate. In most countries the state is, unfortunately, the lender of last resort in the banking sector. I do not mind how dress hire companies conduct their affairs because if they go broke, someone else will get their business. It is appall- ing, however, that in banking, which was an unregulated system, the State was the lender of last resort. The purpose of amendment No. 20, which I do not propose to move, was to address this issue. If anything can be done before Report Stage to improve information and record keeping in the banking institutions which we are supposed to be supervising, it would be valuable to the country, even if it comes late in the day.

25/09/2014T01200Deputy Brendan Howlin: I am sure the Senator has had an opportunity to read the draft code I published, chapter 5 of which deals with the review and updating of records and guidelines. While the system will probably not be full-proof, it is a fairly good and robust approach to the issue.

The issue here is not solely one of knowledge. We knew many things we did not want to hear. In one famous incident, a former Taoiseach told people who took a contrarian view that they could kill themselves. It is not all simply about having information. Many people wanted to party on, as another senior politician stated at the time, and did not want to hear that dark days could lie ahead. This is a societal issue that goes well beyond access to information.

Amendment, by leave, withdrawn.

Amendments Nos. 16 to 18 not moved.

Section 11 agreed to.

Sections 12 to 14, inclusive, agreed to.

SECTION 15

25/09/2014U00200An Cathaoirleach: Amendment No. 19 has been ruled out of order as it involves a charge on the Exchequer.

Amendment No. 19 not moved.

Section 15 agreed to.

Sections 16 to 22, inclusive, agreed to.

Amendment No. 20 not moved.

Sections 23 to 26, inclusive, agreed to. 338 25 September 2014 SECTION 27

Question proposed: “That section 27 stand part of the Bill.”

25/09/2014U01200Senator Kathryn Reilly: I raised this issue on Second Stage and it was discussed at length during Dáil proceedings. In the Dáil, a new section 27, which introduced the new fees regime, was inserted. While it eliminated the standard €15 charge, it has not eliminated fees in their entirety. There is concern that it will undermine rather than enhance a rights-based regime of access to information in so far as it makes access to certain kinds of information dependent not on need or public interest but on ability to pay or the cost to the State. In some cases, applicants could be required to pay a charge that is many multiples of the previously imposed €15 standard charge. The Government amendment provided the power to refuse requests on administrative grounds due to time and cost and, in addition, required applicants to pay a deposit before any information, search or retrieval work commenced.

The Minister has spoken about the open data regime. Once that is up and running, it should significantly reduce the need and therefore the demand for freedom of information requests. There should be no introduction of a new fees regime prior to the completion of the open data regime. While I accept that there will be an open data regime, eliminating the fees regime until that point is a possibility if the Minister introduces further amending legislation.

25/09/2014U01300Deputy Brendan Howlin: The package of proposals for reform of the freedom of information provisions that I put forward goes well beyond what was done to roll back some of the advances made in the original Bill but goes beyond the original Bill in making access to information as cheap as possible. Up to five hours of public service work, which will encompass the vast bulk of freedom of information requests, will be free under this system. I am conscious of the significant burden this will impose on the public service, which is a public service that I have reduced in quantum over the past few years because of economic necessity.

Bluntly, the notion that Sinn Féin expounds is that everything should be free, that there should be no cost to anything, no charges for anything and no taxes on anything, and that we should expend any volume of money on anything. My colleague in the other House took issue with Sinn Féin on that point, but there comes a time when one cannot be all things to all men. At the same time as every service imaginable should be free and open-ended, with no additional taxes of any kind, Sinn Féin is against any charge or any imposition of any kind. Sinn Féin is all things to all men. The fees regime we set out in this enactment, which I thought might be acknowledged for once, is among the most progressive, liberal and inexpensive in any state. That is where we should be, and the fact that we can be in that place while still in economic distress is a credit to everyone in the Houses.

25/09/2014U01400Senator Thomas Byrne: I acknowledge what the Minister has changed in respect of the section. The Minister encountered significant and justified opposition to the original proposal. Fianna Fáil and Sinn Féin opposed it strongly, as did many freedom of information advocates. What was originally proposed was wrong but, in fairness, what the Minister has come back with-----

25/09/2014U01500Deputy Brendan Howlin: What was proposed was an improvement on what the Fianna Fáil-led Government enacted.

25/09/2014U01600Senator Thomas Byrne: It was not; it was a disimprovement. I am about to praise the Minister. 339 Seanad Éireann

25/09/2014U01700Senator Ivana Bacik: On a point of order, Fianna Fáil completely undermined the original freedom of information legislation by introducing the fee structure.

25/09/2014U01800An Cathaoirleach: That is not a point of order.

25/09/2014U01900Senator Thomas Byrne: The reality is that no one will be turned away from freedom of information because of the section. This proves that the Shinners - let us call them what they are - are against everything.

25/09/2014U02000Senator Kathryn Reilly: Senator Byrne wants to dance with me, really. I know he does.

25/09/2014U02100Senator Thomas Byrne: No fair assessment of the section could criticise it. We provided fair criticism of the section in the Dáil because what was originally proposed was outrageous. The Minister listened and changed it, and we should acknowledge that rather than saying “No”. That is not the talk of a government, and it is no wonder Sinn Féin is thinking about pulling out of the Northern Ireland Executive.

Question put and agreed to.

Sections 28 to 30, inclusive, agreed to.

SECTION 31

25/09/2014U02400Senator Thomas Byrne: I move amendment No. 21:

In page 50, line 11, after “member” where it firstly occurs to insert “of Dáil Éireann, Seanad Eireann, or”.

I am curious as to why the private papers of Members of the Oireachtas are not mentioned in the section. They were not mentioned in the original Bill. They are mentioned in the Constitu- tion but the Constitution does not give carte blanche in terms of privilege for private papers. It says that the House may make Standing Orders on that point. Could this provision be inserted? This is very similar to the situation concerning the President. This is not about exempting Members of the Oireachtas from the kind of freedom of information requests that have been submitted over the years. It is about the matters Senator Norris spoke about, concerning our diaries or e-mails with constituents and whether they should be private.

25/09/2014U02500Deputy Brendan Howlin: I refer the Senator to section 42(k) of the bill, which states that “a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential”.

25/09/2014U02600Senator Thomas Byrne: That is the point. There are no Standing Orders in that regard.

25/09/2014U02700Deputy Brendan Howlin: That is a matter for the House, not for me.

25/09/2014U02800Senator Thomas Byrne: Can the Minister not accept the amendment to cover it in the other section?

25/09/2014U02900Deputy Brendan Howlin: No. I have some experience of dealing with personal papers, 340 25 September 2014 since I have been through the High Court and the Supreme Court in respect of my papers. There is an obligation on the Houses of the Oireachtas to have such Standing Orders. That is the determination of the court.

25/09/2014U03000Senator Thomas Byrne: In this section, are we not giving an exemption to the private papers of MEPs and councillors? The section states that a head shall refuse to grant a freedom of information request if the record concerned consists of the private papers of a Member of the European Parliament or a member of a local authority. What is the effect of that?

25/09/2014U03100Deputy Brendan Howlin: The private papers of a Member of the European Parliament or a member of the local authority are covered under section 6, which states that the head shall refuse to grant such a request.

25/09/2014U03200Senator Thomas Byrne: Why can the Minister not include Members of the Oireachtas? It is a different matter if we make Standing Orders. This matter is about freedom of information and those documents would be privileged from court action.

25/09/2014U03300Deputy Brendan Howlin: These are exemptions for private papers. Section 42, which I quoted, exempts in total the papers of the Oireachtas because of the constitutional imperative.

25/09/2014U03400Senator Thomas Byrne: Yes, if we enact Standing Orders, which we have not done.

25/09/2014U03500Deputy Brendan Howlin: That is a matter for the House.

25/09/2014U03600Senator Thomas Byrne: At the moment, a private e-mail that I send to someone could be requested under freedom of information because the Houses of the Oireachtas have never acted on that constitutional provision.

25/09/2014U03700Deputy Brendan Howlin: I do not know that such Standing Orders do not exist, but if they do not I would ask the Committee on Procedure and Privileges to deal with it.

25/09/2014U03800Senator Thomas Byrne: That is a major gap. The idea that the local county councillor has more-----

25/09/2014U03900Deputy Brendan Howlin: He does not.

25/09/2014U04000Senator Thomas Byrne: He does, because while the request in respect of the counsellor will be refused, Members are exempt in the same circumstances if Standing Orders are introduced. The constitutional provision has nothing to do with freedom of information, because the concept had not been heard of in 1937. It has to do with court proceedings and all sorts of privilege. It is much wider than freedom of information. I do not see why the same exemption cannot be included for Members of the Oireachtas.

25/09/2014V00100Deputy Brendan Howlin: To be clear, the idea of personal papers of some categories being exempt is covered in the section we are dealing with but section 42 Part V states that this Act shall not apply to the categories of records which are the records relating to the Members of the Oireachtas. I refer the Senator to section 42K which provides that a record relating to the private papers, within the meaning of the article of the Constitution of a Member of either House, is required by the rules of Standing Orders of either or both Houses to be treated as confidential. They are excluded in their entirety from all impacts of the Act.

25/09/2014V00200Senator Ivana Bacik: There is a difference with the Members of the Oireachtas because

341 Seanad Éireann there is also the constitutional provision.

25/09/2014V00300Senator Thomas Byrne: The constitutional provision does not provide a carte blanche; the constitutional provision is there if we decide to enforce it and change Standing Orders.

25/09/2014V00400Senator Ivana Bacik: That is the answer to the question the Senator is asking which is why they are not included in section 31.

25/09/2014V00500Senator Thomas Byrne: I want to be very clear in case the media misunderstand. This has nothing to do with expenses or financial records or anything like that. If anyone makes that mistake he or she will be in trouble and the Minister knows I am clear on this. It is about our private papers, the records we hold about constituents and the papers associated with our parliamentary work. The Constitution does not give carte blanche; it states that we may make Stand- ing Orders on this matter but as far as I am concerned, we have not included that provision in Standing Orders. The Minister is being dismissive, in my view. The Constitution is not about freedom of information. Members of the Oireachtas have complete exemption if we decide to change our Standing Orders. However, the Minister is giving an exemption from freedom of information to councillors and MEPs which he is not giving to Members of the Oireachtas because the Standing Orders do not cover that issue. If we leave it to the Committee on Procedure and Privileges nothing will be done.

25/09/2014V00600Deputy Brendan Howlin: In replicating the wording of the Constitution I am giving the capacity for the Houses of the Oireachtas - I am surprised they have not done so - to enact such Standing Orders as would be expected.

25/09/2014V00700Senator Ivana Bacik: As a member of the Seanad CPP it is a matter we should bring to the next meeting of the CPP to investigate. I am not clear either. It may well be that we have Standing Orders to deal with this. We need to have a look at that. If not, we will certainly bring it before the CPP.

25/09/2014V00800Senator Thomas Byrne: To be clear, we are not trying to hide information that has been generally available to the public over many years.

25/09/2014V00900An Cathaoirleach: The Chair does not often intervene but as Chair of the CPP, I ask for an instance where such an issue might arise.

25/09/2014V01000Senator Thomas Byrne: For instance, if someone made a freedom of information request on my diary or on Senator Bacik’s diary or on e-mails or papers in our respective offices; it could be argued that the Constitution did not envisage e-mails.

25/09/2014V01100Deputy Brendan Howlin: I can give an exact example of something I had to deal with. It has since been covered in the whistleblower legislation but if a person writes a complaint to the Cathaoirleach that someone was acting corruptly and the Cathaoirleach caused that matter to be investigated, the Cathaoirleach would not want the person making that allegation to have that person’s name in the public sphere. That complaint would be protected as private papers in normal circumstances.

25/09/2014V01200Senator Thomas Byrne: I raised this issue with the Minister of the time when I was in the Dáil. I might ask the Chairman of the CPP as the Cathaoirleach, to examine it, to ensure the House has a proper provision while not restricting the normal information about Members of the Houses that journalists may request under freedom of information.

342 25 September 2014 I will not press amendment No. 21 but I am depending on the Cathaoirleach’s undertaking because there is a gap in that legislation.

Amendment, by leave, withdrawn.

Section 31 agreed to.

Sections 32 to 36, inclusive, agreed to.

Amendment No. 22 not moved.

Section 37 agreed to.

Sections 38 to 40, inclusive, agreed to.

Amendment No. 23 not moved.

Section 41 agreed to.

Amendments Nos. 24 and 25 not moved.

Section 42 agreed to.

Sections 43 to 47, inclusive, agreed to.

Amendments Nos. 26 to 30, inclusive, not moved.

Section 48 agreed to.

Sections 49 to 55, inclusive, agreed to.

SCHEDULE 1

Amendments Nos. 31 and 32 not moved.

25/09/2014V02900An Cathaoirleach: Amendments Nos. 33, 34, 36 to 40, inclusive, and amendments Nos. 42 and 43 which are physical alternatives to amendment No. 33, may be discussed together.

25/09/2014V03000Senator Sean D. Barrett: I move amendment No. 33:

In page 78, to delete lines 40 to 42, to delete page 79, and in page 80, to delete lines 1 to 9.

I compliment the Minister that Part IV, sections 28 to 42 of the Bill, lists very comprehensively the principles of exemption, including parliamentary and court proceedings, law enforce- ment, public safety, security, defence, intergovernmental matters, commercial confidentiality, sensitive information, personal information, financial and economic interests of the State. Is it necessary to have belt and braces? Why are a further 38 bodies exempted if they do not qualify under the principles between sections 28 to 41? How can one say that a body is exempt because a body is No. 29 on the list and therefore does not have to deal with freedom of information correspondence? The Minister’s principle is that they are all in unless they qualify for exclusion under the principles of sections 28 to 41. Is it necessary to also have a list of exempt bodies?

The Education (Miscellaneous Provisions) Bill has a section dealing with refusal of access to certain information and provides that the Minister may refuse access to information and the 343 Seanad Éireann public body shall refuse access to specified information if information could be used for the compilation of further information.

The general principle of amendment No. 33 is to get rid of the opting-out list. I ask the Minister to take a look at the Education (Miscellaneous Provisions) Bill which we dealt with during the week which sought to exclude information in the education sphere which is a very important provision for the rights of children in their education. I question whether a list of exempted bodies is required once the Minister has set up the principle in those sections. What device exists to stop people trying to escape from the legislation which the Minister is promot- ing and supporting?

25/09/2014V03100Senator Thomas Byrne: I wish to raise an issue about some of the smaller port companies that are akin to local authorities.

2 o’clock

While I picked them out without researching each one, there are proposals to merge some of these authorities with local authorities. Some of them are extremely small, are not really commercial semi-State bodies, although that might be their title, and manage areas that in many cases could be managed by the local authority. They should be subject to FOI.

25/09/2014W00200Deputy Brendan Howlin: I hear what the Senators have said. The amendments, taken together, seek the deletion of the entire list of exempt bodies. By and large, I want to exempt only two categories of bodies, namely, commercial bodies and North-South bodies. It is wrong to expect commercial companies that happen to be owned by the State, but operate on the same playing field as their competitors, to be subject to FOI, including FOI requests by their competitors. It would spancil the capacity of commercial semi-State companies to operate in that realm. This is their strong argument to me and I strongly adhere to this view. Unless one held the view that we should not have commercial semi-State companies, one would have to allow them to operate as commercial entities on the same playing field as everybody else. I have already explained that the North-South bodies cannot be included because they are part of the Good Friday Agreement, an international agreement that we would probably have to renegoti- ate and, probably, have another referendum on, to alter in substance, and this is impossible. Senator Byrne raised the issue of the harbours.

25/09/2014W00300Senator Thomas Byrne: Particularly the smaller ones.

25/09/2014W00400Deputy Brendan Howlin: The port companies I have exempted are the remaining nine commercial port companies. Others have been merged. The port companies proposed for deletion by the Senator are all commercial port companies established under the Harbours Act 1996. Under the Act, 11 of the commercial harbours under the Harbours Act 1946 were established as companies under the Companies Acts, while others were either transferred to local authorities or dissolved. Since then, Shannon and Foynes have merged and Dundalk Port Company has been dissolved and its functions subsumed into the Dublin Port Company. The nine remaining port companies which operate as commercial ports are captured by the exclusion.

Amendment, by leave, withdrawn.

Amendments Nos. 34 to 43, inclusive, not moved.

Schedule 1 agreed to.

344 25 September 2014 Schedules 2 to 5, inclusive, agreed to.

Title agreed to.

Bill reported without amendment.

25/09/2014W01100An Cathaoirleach: When is it proposed to take Report Stage?

25/09/2014W01200Senator Ivana Bacik: Next Tuesday.

Report Stage ordered for Tuesday, 30 September 2014.

25/09/2014W01400An Cathaoirleach: When is it proposed to sit again?

25/09/2014W01500Senator Ivana Bacik: Next Tuesday at 2.30 p.m.

25/09/2014X00100Adjournment Matters

25/09/2014X00150Disability Support Services Provision

25/09/2014X00200An Cathaoirleach: I welcome the Minister for Health, Deputy Varadkar, to the House. The Minister is dealing with the second and third motions. May I ask Senator Quinn if he will agree to allow Senator Moran to go first?

25/09/2014X00300Senator Feargal Quinn: Yes.

25/09/2014X00500Senator Mary Moran: I appreciate that Senator Quinn has given way and I thank him for doing so. I welcome the Minister for Health, Deputy Varadkar, to the House.

I wish to raise on the Adjournment a matter that I first raised more than a year ago. Un- fortunately, in that time, nothing has changed. I wish to raise the case of a young girl with an intellectual disability who is in urgent need of residential care. I have spoken to those in the HSE and St. John of God in Drumcar, where the girl attends day services. Unfortunately St. John of God has a no-admissions policy now and the HSE has insufficient funding to provide a residential placement. I have tried everything to move this case forward and have met the officials on the many occasions.

This young girl has an intellectual disability, but she also has extremely challenging behaviour and her parents cannot cope with the situation. I have been to their house and I know the young lady in question. The situation is at crisis point. I am raising this case today but I am also relating it to the more general issue, because I know that in my area of Louth there are up to 30 people on the waiting list for residential placement with the HSE, and I am led to believe the list for places in St. John of God is even greater. This is a major problem and it will become a crisis as the years go by and as elderly parents are trying to cope with their loved ones and find places for them. I am asking for this case to be progressed. I know that since my last meeting with St. John of God it has been agreed that this girl will receive respite hours. Everybody recognises the urgency of this case, which is at crisis point.

345 Seanad Éireann Let me restate that we are at a major crisis point. I am asking the Minister not to give me a stock answer again. I acknowledge that additional respite care has been offered, but to me it is like putting a plaster on a very deep wound. It will solve the situation only in the medium term. In the long term we need an admissions policy or extra funding or whatever it takes. I am raising the case of one individual, but there are three crises in County Louth and 30 people on the waiting list. How many more are there throughout the country? These are vulnerable people and their families are the most vulnerable families. They have so much to deal with.

25/09/2014X00600Minister for Health (Deputy Leo Varadkar): I thank Senator Moran for raising this issue. I am taking this debate on behalf of the Minister of State, Deputy Kathleen Lynch, who is unavoidably absent as she is attending a conference today.

The named individual is a service user of St. John of God Services, Drumcar, County Louth, and it is from this organisation that she has received all her services to date. I am informed that she lives with her parents and attends day services five days a week. Drumcar Services is a section-38-funded organisation that provides services for clients with severe and profound intellectual disabilities. Louth disability services are aware of the current issues pertaining to this family due to the advancing age of the parents, who are finding caring for their daughter very challenging. Her name remains on Louth disability services’ waiting list for funding, which is monitored vigilantly.

The vision for the HSE’s disability services programme is to contribute to the realisation of a society in which people with disabilities are supported as far as possible in participating to their full potential in economic and social life and have access to a range of high-quality personal social supports and services to enhance their quality of life. The HSE national service plan for 2014 and the 2014 operational plan for the social care division outline the quantum of specialist disability services, the key reform initiatives and the additional investment in 2014. The HSE will spend €1.4 billion and employ a staff level of approximately 15,000 whole-time equivalents in 2014 to provide specified levels of service. An additional investment of €14 million in 2014 also has been made to address deficits in disability services, implement a reform programme to transform services to a community-based model of person-centred supports, and focus on the implementation of the Health Information and Quality Authority standards for residential services for people with a disability. These developments and reform proposals will be carried out in an environment of effective communications and engagement with all those involved in services, including people with a disability, through the HSE’s National Consultative Forum. The emerging residential need in the absence of residential development funding over the past number of years is a major challenge for all services providing support to clients with a disability. The issue of funding for residential services will be considered in the context of the Estimates and service planning process for 2015, which will occur in October and November.

In the meantime, I am told that a plan is in place to support this person in attending her day placement at St. Mary’s, Drumcar, and ongoing regular respite has been arranged for her.

25/09/2014X00700Senator Mary Moran: Unfortunately, as I said, I am aware that respite has been arranged, from meeting with the officers of St. John of God and asking them for additional respite care.

We have raised the issue of putting services in place. I know that €1.4 billion is being put into the HSE for services, but that is no good to a family who are struggling to cope with the person at home. I know that this lady has been sent home from Drumcar because the staff could not cope. That is not helping anybody. I ask the Minister to intervene because residential place- 346 25 September 2014 ment has to be provided urgently for this person.

25/09/2014X00800Deputy Leo Varadkar: I appreciate that this very severe case is genuine, and I acknowledge that the Senator has raised the matter and taken up this cause. This is a disability matter. I will mention this debate to the Minister of State, Deputy Lynch, and inform her of the exchange.

I wish to be straight up about this. I do not think it should be the role of the Minister for Health or the Minister of State at the Department of Health to intervene in individual cases. Inevitably, when services are constrained and there are waiting lists, for a Minister to intervene on behalf of an individual means displacing somebody else. It means skipping a waiting list or it means using political influence to benefit one individual at the expense of another.

25/09/2014X00900Senator Mary Moran: I am not asking for that at all. I am not asking for anybody to do that. I am asking that funding be provided for residential placements for those people who are in urgent need of them.

25/09/2014Y00100An Cathaoirleach: The Senator has made the case.

25/09/2014Y00200Senator Mary Moran: I raised it a year ago and nothing has changed.

25/09/2014Y00300Deputy Leo Varadkar: I appreciate that clarification, because there are Deputies and Sen- ators who ask me to intervene in such cases.

25/09/2014Y00400Senator Mary Moran: I am not asking for that, and I agree totally with the Minister.

25/09/2014Y00500An Cathaoirleach: The Senator has made the case.

25/09/2014Y00600Senator Mary Moran: I need to clarify that as well.

25/09/2014Y00700Deputy Leo Varadkar: That is fine. I fully accept the clarification. What it means is that this is a matter for the Estimates process and the service plan. As the Senator is aware, the HSE is running over budget under almost all headings. The Minister of State, Deputy Kath- leen Lynch, and I are working very hard to secure a realistic budget for next year so that in the 21 days after the budget we can develop a service plan which will result in improved services across the board.

25/09/2014Y00800Senator Mary Moran: Particularly in crisis places.

25/09/2014Y00900Deputy Leo Varadkar: There are many crisis places.

25/09/2014Y00950Nursing Homes Support Scheme Applications

25/09/2014Y01000Senator Paul Bradford: I welcome the Minister. I look forward to his reply, as he is under orders to be positive, to provide solutions, and not to talk about problems. I am sure my query will be dealt with.

I wish to speak about the Fair Deal scheme - not how it operates, but its current funding. The Minister could probably give some of the same answer that he gave to the previous speaker. The scheme is a positive and effective one, which I discussed on many occasions with a previous Minister and Tánaiste, Mary Harney. I am concerned that we see the Fair Deal scheme as the only way of dealing with the accommodation needs of the elderly community. I hope, as

347 Seanad Éireann the Minister plans ahead, that home care packages, home help services and carer’s allowance - although that is within the remit of another Department - will receive significant focus. I noted in passing an interesting piece of legislation, perhaps not yet debated in the other House, tabled by Deputy Willie O’Dea of Fianna Fáil. He suggested that where a person is deemed eligible for the Fair Deal scheme, the cost of the scheme be made available for private care or home care arrangements. We need to be much more flexible in regard to care of the elderly.

It has come to my attention from a few individual constituency cases, about which I have made inquiries of HSE staff, that since mid-summer or thereabouts a number of applicants have been approved as eligible for the Fair Deal scheme from a medical and income point of view, but the sanctioning of these applicants has slowed down by as much as 60%. People who were advised in mid-summer that they would probably have to wait six or seven weeks for the final sanction have found that the waiting period has more than doubled, but I appreciate that this is a funding issue. In one case, I put much pressure on a family, at the behest of a hospital, to have the person taken home from the hospital on the advice that the Fair Deal scheme would apply after five or six weeks, but now it could take ten, 12 or 15 weeks. I know it is a funding problem, but the Minister may be in a position to comment. It appears the situation has deteriorated since mid-summer. There was a blip in February and March and the situation improved, but since late June or early July delays have increased significantly.

Perhaps the Minister would give an overview of his future approach to care of the elderly. While I want to see the Fair Deal scheme supported, encouraged and properly funded, there must be solutions other than nursing homes. I have said here often that if our only aspiration for the elderly is a clean nursing home bed, that is inadequate. Care in the community, care in the home, family support, carer’s allowance, home help and so on should play a much more significant role. The taxpayer would benefit because it is less expensive. The older person would benefit as he or she would be with family, friends or neighbours. Perhaps the Minister will work on this issue and comment on the current funding difficulty for the Fair Deal scheme.

25/09/2014Y01100Deputy Leo Varadkar: I thank the Senator for raising the issue. I am taking this Adjourn- ment matter on behalf of the Minister of State, Deputy Kathleen Lynch, who has responsibility for older people and who is speaking at a health-related conference.

The nursing homes support scheme is a system of financial support for individuals who require long-term nursing home care. Anyone who is ordinarily resident in the State and who may need nursing home care, regardless of age, can apply for the scheme. The total budget for long-term residential care in 2014 is €939 million. It should be pointed out that a number of people covered by the funding arrangements which preceded the scheme are also covered by this.

The HSE operates a national placement list to enable it to operate within the budget allocated for the nursing homes support scheme. All applicants who are approved for funding are put on the placement list in chronological order by the date of determination of their application. Funding issues to applicants in this chronological order to ensure equity nationally. The current waiting time on the placement list is 15 weeks, with 2,007 people on the list awaiting release of funding. The HSE makes every effort to match available funding to demand by releasing funding on a weekly basis. In the first seven months of 2014, 3,553 new clients were funded under the scheme. The length of time an applicant remains on the placement list depends on the number of new applicants awaiting approval for the scheme at any given time and the number of applicants currently receiving payment under the scheme. Therefore, the duration of time on 348 25 September 2014 the placement list can fluctuate.

The provision of services must be managed within available resources. The scheme is con- tinuing to take on new clients within the limits of the resources available, in accordance with the legislation. The resources that are available will be applied to provide the best possible mix of supports and services in a way that most effectively matches the needs and preferences of older people themselves. There is a particular focus on enabling people to live as independently as possible. For this reason, €23 million was transferred from the nursing homes support scheme to provide additional community services, with a view to allowing more older people to be supported in their own homes and communities for longer, which is in line with the expressed wishes of older people.

The Senator will be aware that the nursing homes support scheme is currently the subject of a review. The review will consider the long-term sustainability of the scheme as well as looking at the current operation and management of the scheme. Work on the review is advanced and is expected to be completed in the coming months. The report will then be made publicly available.

25/09/2014Y01200Senator Paul Bradford: I thank the Minister for his comprehensive reply. He mentioned that the HSE makes every effort to match available funding to demand by releasing funding on a weekly basis. That is fair enough, but I am advised that up to seven weeks ago, on a Monday or a Tuesday, the funding released each week from the central office would cover a five-day period and, obviously, a set number of applicants, whereas now that funding covers applicants only for two and a half days. That is the reason the delays have more than doubled. I am advised that sanctions for funding have decreased by 60%. It is fair to say that money is being released weekly, but a significantly reduced number of applicants are sanctioned each week. I ask the Minister to bring this to attention of the Minister of State, Deputy Kathleen Lynch. I look forward to the review and I appreciate the funding crisis. I appeal to the Minister to try to make progress but also to ensure that the broader spectrum of care for the elderly, services and future methods of dealing with the elderly are considered also.

25/09/2014Y01300Deputy Leo Varadkar: I cannot confirm the detail of what the Senator has said, but the basic point he makes is correct. The scheme’s funding is constrained, as it was cut this year. As a result, the waiting time has slipped from about four weeks, which most people found to be rea- sonably acceptable, to 15 or 16 weeks, which people find unacceptable. They are right to find it unacceptable. As things stand, that will get worse as the year goes on. The effect is that older people cannot be transferred from hospital to nursing homes, where they would be much safer and less likely to acquire infections. Thus, there is a problem of delayed discharges in hospitals. There are almost 700 delayed discharges today. If those beds were freed up, we would be able to deal much better with accident and emergency overcrowding and elective waiting lists. That is the present situation and there is no point in denying it.

The Senator’s second point is a valid one. I have some experience of the health service in England, where home care and community care are much more advanced. It is easier, therefore, to keep people in their homes for longer and to get people out of hospital because they know that the public health nurse and the home care services will click in on a Saturday or Sunday, or a Friday evening if the need arises. Ireland has underdeveloped social care services. As a consequence, we have people going into nursing homes sooner in their lives than they might want to. That is the major structural thing that needs to be changed over the next couple of years in Ireland. The more immediate problem is one of funding. 349 Seanad Éireann

25/09/2014Z00150Seanad Elections

25/09/2014Z00200Senator Feargal Quinn: The Minister of State is welcome to the House, particularly in respect of this problem. My attention was drawn to this matter by Mr. Robbie Sinnott, who is in the Visitors’ Gallery. He is visually impaired.

The Taoiseach has declared his intention to respond to the referendum on the abolition of the Seanad by introducing minimal reform of the university seats prior to the next election. Graduates of third level institutions will be entitled to vote for six Senators if the planned Seanad electoral (university members) (amendment) Bill is enacted prior to the next election. However, graduates who suffer from impaired vision are only able to vote by asking someone else to vote for them, as the Constitution decrees that elections for these Seanad seats must be by postal vote. Therefore, a blind person must disclose his or her intention to a third party and rely on the third party to vote as requested. This is contrary to Article 18.5° of the Constitution, which guarantees a secret ballot. How can the dilemma be solved? The answer can be found in modern technology. The Constitution declares that the Seanad election must be a postal ballot, but that could include e-mail. I understand that most graduates, even those who are visually impaired, are capable of using e-mail, and I urge the Minister of State to explore this solution.

Some 53,000 people have extreme visual impairment severe in Ireland. I do not know how many third-level graduates are included in that figure, but the proposed Seanad electoral (university members) (amendment) Bill could be an early first step towards a solution to a challenge that will face the State in later years if we are to be a society that treats all the citizens equally. I urge the Government to consider the problems that this entails.

25/09/2014Z00300Minister of State at the Department of the Taoiseach (Deputy Jimmy Deenihan): I thank the Senator for raising this issue. I am replying on behalf of my colleague, the Minister for the Environment, Community and Local Government, Deputy Kelly. A fundamental principle of our electoral system is voting by secret ballot. This is enshrined in the Constitution for Dáil, Seanad and presidential elections. For local and European elections and for referendums, the provisions on secrecy are set out in primary legislation.

Arrangements for the holding of elections and for registered voters to cast their ballots are all built on this principle. The electoral Acts make special provision for certain voters and, over the years, improvements have been introduced aimed at making the voting process as accessible and inclusive as possible. These include provision for voting at an alternative polling station if a person’s local polling station is inaccessible. Voters who cannot go to their polling station due to a physical disability or physical illness may avail of postal voting or the special voting arrangements provided in hospitals and nursing homes. The placing of photographs and political party emblems on ballot papers and the display of a large-print copy of the ballot paper in polling stations are aimed at assisting visually impaired voters in particular.

Special provision is made for voters whose sight is so impaired that they are unable to vote without assistance at a polling station. Such voters may vote with the assistance of a compan- ion or the presiding officer, as they choose. While this arrangement meets the needs of many voters, it may not meet the needs of all, and the Department of the Environment, Community and Local Government is committed to improving these arrangements. Our commitment to enhance access to voting by persons who are blind is stated in the national disability strategy.

In June of this year, officials of the Department of the Environment, Community and Local 350 25 September 2014 Government participated in a National Disability Authority trial of a range of options for voting by visually impaired persons. These included the use of tactile voting templates. The report on the trial is awaited from the authority.

That is an outline of the position generally. Seanad elections are somewhat different in that voting does not take place in polling stations. Article 18.5° of the Constitution provides that the election of Members of Seanad Éireann shall be by secret postal ballot. Senator Quinn, having been elected by the graduates of the National University of Ireland on many occasions, is no doubt well versed in the electoral procedures that operate for the constituency. I am a member of that constituency. At an election, each registered graduate is sent, by registered post, an envelope containing voting documentation, including a ballot paper and a declaration of identity form. These arrangements apply to all voters in the NUI constituency.

Members of the House will be aware that in February 2014 the general scheme of the Seanad electoral (university members) (amendment) Bill was published for consultation. There was a very useful debate in this House on its proposed provisions in March. The general scheme is part of the legislative process to implement the 1979 constitutional amendment to extend the Seanad franchise to graduates of institutions of higher education in the State that heretofore did not form part of the Seanad university constituencies.

As part of the consultation process on the general scheme, a number of submissions were received - 22 in total. One was about voting arrangements for visually impaired persons. It recommended that consideration be given to allowing all those on the register for the university constituencies the option of voting by e-mail. It is an interesting idea. However, fundamental issues arise concerning whether e-mail would meet the constitutional requirement of conduct- ing Seanad elections by secret postal ballot. Notwithstanding this point, the technical feasibility of introducing such a system would have to be a consideration. Our experience with electronic voting in Ireland was a not particularly good one.

Another idea proposed in the submission was to allow voters with a visual impairment the option of using a cardboard or plastic template which would be placed over the ballot paper. This template would be in a format readable by a person with a visual impairment. The Na- tional Disability Authority trials of these templates were already mentioned. The Department of the Environment, Community and Local Government looks forward to receiving the findings of this research and will give them due consideration. The Minister is open to ideas that can improve upon the arrangements currently in place for voters with a visual impairment. The Department must be mindful that any proposed reforms have to be consistent with existing constitutional provisions and must be capable of being deployed usefully in practice.

25/09/2014Z00400Senator Feargal Quinn: I appreciate the reply. This is a challenge, and the question is whether the Government can solve the challenge. I am delighted to hear that there is research going on and I am delighted to hear some steps are being taken. The first thing that must be done is to recognise the real difficulty there is for people who are blind and who cannot have a secret ballot without having somebody else vote for them. We are capable of solving that problem. The Minister of State has touched on one of two ways in which we can move in that direction. We do not have much time, on the assumption that the Seanad electoral (university members) (amendment) Bill will come before the House some time soon. I hope the Government will see that it is possible to do something to ensure that the large number of people - although a small number of graduates - who are visually impaired have this problem solved. These people have to take part in a postal vote at home and must ask someone else to open the envelope, tell them 351 Seanad Éireann they want to vote for A, B and C and then not know whether it has happened. These people need to have a solution and I am delighted to hear the Government is working on it. I urge the Minister of State to move as fast and as securely as he can in order to make sure this improvement takes place.

25/09/2014Z00500Deputy Jimmy Deenihan: I will ensure the sentiments expressed will be conveyed. I will convey them personally to the Minister for the Environment, Community and Local Govern- ment on behalf of Senator Quinn.

The Seanad adjourned at 2.40 p.m. until 2.30 p.m on Tuesday, 30 September 2014.

352