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10th Anniversary Conference (15 May 2008) - "Freedom of Information: The First Decade"
"Policing, Immigration, Asylum – Should FOI Act Apply?" Speech by Donncha O'Connell, Dean of Law, NUIG
Chairman, Commissioner, ladies & gentlemen, I am very grateful for the invitation to speak at this tenth anniversary conference. Last year the Information Commissioner said that freedom of information was not the private water supply of Government but a public good to be regulated accordingly. Coming as I do from Galway that analogy was not altogether comforting! Having said that, there is a deeply serious point to be made here – the promise of the original Freedom of Information Act was diminished by the statutory changes made in 2003. So was its potential to be used as a standard-setting and positive benchmark of good practice internationally. It is therefore with a degree of proportionate disappointment that we mark rather than celebrate the tenth anniversary of the FOI Act looking to the future for possibilities of expanding the scope of the legislation so as to bring more areas of public activity within the remit of the Information Commissioner’s office.
I propose to divide this paper in two dealing with: (1) structural issues, referable not just to FOI but wider areas of public accountability and (2) substantive issues concerning the right to know and its applicability to policing, immigration and asylum.
Structural
As we embark on yet another period of scrutiny of the burgeoning public sector – in the aftermath of the publication of the latest OECD Report – with a view to rationalising structures and addressing the problem of fragmentation of government through excessive ‘quangocracy’ and over-regulation, it is important not to lose sight of fundamental structural issues. It is too easy to attack the state and its emanations as the source of all of our troubles. Ronald Reagan made a political career out of this in his iconic statement that we shouldn’t look to Government for solutions to our problems because Government was the problem. Like all truisms, this was false! Abolishing government in the name of democracy is patently laden with big practical and theoretical problems however tempting it may seem to those who are excited by the dream of a super-efficient democracy.
The easy targets in what will now pass for public debate on the need to trim down the statutory sector in Ireland may well be the very bodies that require to be strengthened. This risk must be avoided at all costs.
The Office of Information Commissioner, connected as it is to the Office of Ombudsman, fits into a public superstructure of accountability. Its place within it calls, perhaps, for some radical re-thinking. Surely it is time to engage seriously with the idea that the Office of Ombudsman, embracing as it does other offices and functions including freedom of information, should be given explicit constitutional recognition along the lines of the office of Comptroller & Auditor General. This would enrich both the parliamentary and executive branches of government, as provided for constitutionally, and would enhance the nature of our constitutional democracy more than seventy years after the enactment of the Irish Constitution of 1937. A reorganisation of a part of the statutory sector in this way, far from diluting the role of parliament, would enrich its processes if suitable points of connection were established between parliament and such a ‘constitutionalised’ office.
In this context it might also make sense to realign other public bodies with powers and functions akin to that of an Ombudsman bringing them institutionally within the penumbra of this major new constitutional office. I am thinking here of statutory bodies such as the Garda Siochana Ombudsman Commission, the Irish Human Rights Commission, the Equality Authority and others but not the office of Comptroller & Auditor General because of the established specialist functions of that office. This is not the same thing as proposing the establishment of a government Department of Constitutional Affairs which, to my mind, would be a bit like having a Department of Foxes for the Management of Hen-houses! I admit, however, that the ascription of parliamentary’ status to the office I am proposing is no guarantee against its corruption. This risk can, however, be minimised.
The foregoing may seem somewhat off-the-point that I have been asked to address but I would submit that it is not. One of the reasons – but by no means the primary reason – that it was possible to undermine the original Freedom of Information Act in 2003 was because the office charged with implementing that legislation was constitutionally weak and insufficiently embedded in the greater scheme of constitutional things. Although parliamentarians made plenty of noise in opposition to the proposed changes thi s lacked impact in the Executive-centred system of government that we have where those with the parliamentary balance of power prefer to hold Governments to ransom on issues of local or regional interest than on grand systemic issues unless, of course, they happen to be minority political interests represented, fortuitously, in Government.
Structural issues arise as soon as you consider expanding the scope of the FOI Act to cover police and immigration & asylum matters. For example, while FoI and police oversight are distinct but related activities adding the Information Commissioner to the agencies that can scrutinise policing matters will require, at the very least, a practical understanding of the complementarities and tensions - in terms of diverse oversight – on the part of both GSOC and the Information Commissioner. This would, arguably, be aided by closer institutional associations achievable within the kind of major constitutional office that I have proposed.
If a strong and direct nexus was established between such an office and Parliament political debate on issues like policing and asylum & immigration would, potentially, be enriched. It would create a possibility of bringing parliamentarians closer to systemic problems as opposed to individ ual grievances in the exercise of the legislative and accountability roles. This might even allow for the evolution of an expert insight at parliamentary level akin to that which exists at Executive level, but minus some of the institutional biases.
It might help to illustrate this point with examples. In Ireland it seems to me that there is a reflexive but shallow antipathy towards inward migration that can occasionally manifest itself as anti-immigrant sentiment or even racism. This partially explains the very decisive outcome in the 2004 Citizenship Referendum. Having said that, there is ample evidence of ‘squeamishness’ about deportations of known individuals connected to both urban and rural communities. For politicians, it is very difficult to reflect this ambivalence in their role as legislators and parliamentarians. My argument is that it would be worth looking at the kind of major constitutional office that I have mentioned, which would have to be embedded creatively in the parliamentary system, as a way of addressing the disadvantage in terms of access to expert information sources that parliamentarians experience. This is not a proposal to establish an Orwellian Ministry for Information but, rather, to orient an independent superstructure of public accountability directly and closely towards the branch of Government charged with representing the sovereign people, the Oireachtas, so as to bring about a more rigorously informed political debate on issues of acute importance.
This would apply equally in the area of policing. If you take the example of the Donegal scandal, Parliament proved utterly ineffective in addressing an egregious problem of police corruption. It’s not that the Executive did a much better job in the beginning but one would expect that the public forum of Parliament, covered as it is by absolute privilege, might have been more to the fore in amplifying the unlawful behaviour of members of An Garda Siochana in Donegal. *
Similarly, in the initial Abbeylara inquiry, the attempt by a sub-committee of a parliamentary committee to inquire into the circumstances of John Carthy’s killing by members of the Garda ERU and related matters collapsed following a court challenge and was followed by a tribunal of inquiry presided over by a judge. The Supreme Court was correct to close down this inquiry given the nature of the matter being inquired into. Had the sub-committee been dealing with the findings of a Garda Siochana Ombudsman Commission inquiry it would have been much better placed to effect appropriate accountability for the actions of the Garda ERU just as the Committee on Public Accounts had so effectively used the work of the Comptroller & Auditor General in its DIRT Inquiry that is repeatedly held up as an example of effective parliamentary inquiry. (We should not be so complacent as to presume that such a problem could never arise again because of the establishment of GSOC with a reporting relationship to Dail Eireann. That office is clearly experiencing some vulnerabilities at an early stage of its evolution that might be addressed if it came under the aegis of a major constitutional office).
Substantive
But ‘structural’ issues are only part of the picture. There are more substantive issues to consider. Presumably the usual arguments in favour of FOI – that the increase in openness, transparency and accountability facilitates the building of confidence in ‘the system’ and prevents abuses that might otherwise take place – apply easily to the case for extending FOI to policing and immigration and asylum services. According to this view the application of FOI is intrinsic to the establishment and, importantly, the maintenance of process integrity. Process integrity – which is not an end in itself – is presumed to result in outcome legitimacy or, at least, acceptance of outcomes.
Another major argument in favour of extending FOI is the ‘efficiency’ argument. This can be presented almost in the language of risk management in the following terms – that if there was more freedom of information there would be less judicial review. In some instances this is undoubtedly true but we need to be careful not to become infatuated with this line of argument. There is nothing intrinsically ‘evil’ about judicial review however discredited it might appear to be to those who view litigation of any kind as some kind of compensation-driven virus in the policy processes of the state. Just because the court system has, in certain respects, failed to cope with an increased use of judicial review is no reason to abolish it or, indeed, to punish the lawyers who bring judicial review actions. In fact, the increased use of judicial review may well indicate very real problems of a procedural and substantive nature in those areas where it is used although the tendency in judicial review to over-emphasise the procedural may well obscure problems of a more substantive nature.
Judicial review lists are now dominated by asylum and immigration cases and I am sure that any Minister for Justice, Equality & Law Reform would totally 'de-judicialise’ these processes if they could. One of the reasons for this is because, occasionally, the courts tell the state that it cannot do certain things that it would like to do to non-nationals. More often than not and where it matters most the courts defer to the state’s position, especially on the fundamentals of immigration and state sovereignty. This kind of scrutiny should hardly cause offence in a liberal democracy! The prevalence of asylum and immigration cases in judicial review lists may say more about the work of bodies like the Refugee Appeals Tribunal (RAT) than it does about the individuals taking the cases.
It would, however, be foolish to imagine that all of the immigration cases taken by way of judicial review are meritorious. That is not to criticise those who bring such cases .– they are simply responding, sometimes in desperation, to a systemic dysfunction – but, rather, to call for ways of minimising the problem of excessive litigiousness in this area. If the processes for dealing with asylum and immigration matters were more open and transparent by being made subject to FOI it would not necessarily follow that the state would be exposing itself to more bases upon which asylum and immigration decisions could be challenged. Conversely, it might well be in a position to reveal patterns of reasoned and consistent decisions – acknowledging that this might involve extra work on the part of the decision-makers – that demonstrated, on balance, that the system was reasonable. Freedom of information might thus enhance and not impede the system and even if it did reveal systemic problems there might be a way of fixing them that did not require judicial intervention.
The kind of arguments that are posited by those who oppose the extension of FOI to areas like policing and immigration are usually premised on the idea that the processes that might be covered by FOI have a somewhat fragile integrity. In other words, they might be ‘undermined’ if they come under the kind of independent scrutiny associated with the FOI Act. An alternative and perhaps more understandable position is that it would be economically more efficient to spend the money on the system rather than on FOI’ing the system.
It is regrettable that the current practice of withholding asylum records for the purpose of the FOI Act is being formalised in Section 130 of the Immigration, Residence & Protection Bill in respect of asylum ‘determinations’. This has no bearing on the applicability of the Data Protection Acts and does not necessarily mean that information on the general administration of determination processes will be excluded under FOI. It would be unwise to leave this matter unclarified in the context of the passing of the Bill bearing in mind that so much will be left to subsequent ministerial regulation once it is passed.
In relation to policing, the problem is with the blanket nature of the exemption under the FOI Act which is, of course, amenable to change by the simple method of ministerial regulation. It makes little sense to maintain such a blanket exemption post the establishment of the Garda Siochana Ombudsman Commission and the Garda Inspectorate. The non-existence of blanket exemptions in respect of bodies other than An Garda Siochana with prosecution powers and functions has not impeded their effective functioning. It is noteworthy that even the DPP is in the process of examining an analogous issue of giving reasons for non-prosecution. In a context in which the norm in comparable jurisdictions is to have policing services covered by FOI it is an obvious next step in making An Garda Siochana fully accountable. It is somewhat remarkable that this step has not been taken given the amount of controversy arising from failures to make An Garda Siochana fully accountable in the recent past.
Conclusion
I have outlined structural and substantive arguments of relevance to the issue of extending FOI to policing and immigration & asylum. Both sets of arguments are pre mised on the need to regenerate democracy imaginatively within the current constitutional framework. The substantive arguments are grounded in human rights values and principles but not driven by a clear and unambiguous legal imperative of national or international origin. In a sense, I am arguing for what we ought to do rather than what we must do. Although I would always argue that we must do what we ought to do!
