Freedom of, and to, Information

Fine Gael supporters always bristle when reference is made to their party’s previous dalliance with the Blue Shirts and totalitarianism.


However, the actions of the present government do little to allay the fears that they secretly pay homage to fascism. And yes, Labour is now tarred with the same brush.

The doctrine of the Separation of Powers says, in its simplest form, that the Legislature makes the law (the Oireachtas), the Executive carries out the law (the Taoiseach and the Cabinet) and the Judiciary interprets the law (the Courts).  This is the essence of democracy as invented by the Greeks in their city states well before the birth of Christ.  By distributing the democratic functions between these three arms, it ensures that each arm will jealously guard its own patch, whilst ensuring that the other two arms do the same. Accordingly, the legislature makes sure that the executive (which is drawn from members of the legislature in the first place) does not make law, but only carries it out once it is made, whilst the judiciary can invalidate laws passed by the legislature which are contrary to the Constitution, and can similarly stop the executive from exercising powers it does not have. The judiciary are appointed, and paid, but cannot be removed, by the executive.

At the moment there is a strong argument that Ireland is subject to a Fine Gael dictatorship, given their significant majority in the Dail, which in turn means that what the Executive wants, it gets – thus short-circuiting the Separation of Powers. This danger was highlighted in the recent Referendum concerning the proposed abolition of the Seanad, and was probably the primary reason for the Government’s defeat in that Referendum (Enda’s performance notwithstanding). Of course, the blame for this dominance cannot be laid at Fine Gael’s door, as it is true of a number of ‘western democracies’ with an essentially two-party system, the UK and the USA being the most obvious examples.

The ‘fourth arm’ of this structure is the People. They elect the legislature in the first place, and consequently un-elect them if their performance is found wanting. Accordingly, the legislature is controlled by the People, and therefore indirectly the executive is controlled by the People, given that the Taoiseach and the Cabinet must be elected to the legislature in the first place.

This was simply but perfectly described by Larry Diamond during a lecture entitled “What Is Democracy?”

§  “Democracy is a means for the people to choose their leaders and to hold their leaders accountable for their policies and their conduct in office.

§  The people decide who will represent them in parliament, and who will head the government at the national and local levels.  They do so by choosing between competing parties in regular, free and fair elections.

§  Government is based on the consent of the governed.

§  In a democracy, the people are sovereign—they are the highest form of political authority.

§  Power flows from the people to the leaders of government, who hold power only temporarily.

§  Laws and policies require majority support in parliament, but the rights of minorities are protected in various ways.

§  The people are free to criticize their elected leaders and representatives, and to observe how they conduct the business of government.

§  Elected representatives at the national and local levels should listen to the people and respond to their needs and suggestions.”

Clearly this working model of democracy is dependent on the active participation of the People, as citizens, in politics and civic life. For this to happen there must be a flow of information from and to the People. The wishes of the People must be listened to by their elected representatives, who will express these views when the legislature debates the content of legislation. Conversely, when the legislature does make law, the content of that law should be conveyed, in an eligible form, to the citizen to enable that citizen to plan his or her life in accordance with, and hopefully augmented by, the law. If the citizen is to be empowered to properly participate in the democratic debate and have input in policies and laws that directly impact that citizen’s life, there must be a free flow of information.

The great democratic societies are always characterised by extensive access to information, whereas totalitarian regimes always begin the implementation of their dictatorial stranglehold on society by limiting information to what they are prepared to allow the citizen to know about, and it is usually composed of the one side of the debate, with the other side of the debate completely stifled.

See: .

Against this background it is particularly disquieting when we as citizens are constantly uncovering covert government activities in this country and witnessing constant blockings of FOI requests or the more insidious loading of fees on such requests, so as to effectively render them inaccessible to the ordinary citizen.

See  .

Given their apparent disavowal of their fascist roots, one would think our FG masters, and their Labour lackeys, would bend over backwards to dispel any fears in that regard by ‘opening up the books’ for public inspection.

The illegal creation of EirGrid with its ‘under the radar’ inception and subsequent clandestine activities, and of course the undercover activities of the Water Board, are two examples of covert State activity on the Fine Gael government’s watch.

And how were these nefarious activities uncovered? By a small but stalwart band of citizens using what the law had given them – the right to access information concerning their governance. In other words, the Freedom of Information Act.

Appearing on a recent TV programme, Minister Rabbitte agreed to open up EirGrid’s activities to the full ambit of the FOI Act, similar to what he promised in regard to the Water Board.

See: (right at the end of the clip)

This has not happened, at least not by the Minister’s doing.  However, there is a Private Member’s (Deputy Sean Fleming) Bill to be debated in the Oireachtas next week which proposes the following:

Freedom of Information (Amendment) Bill 2014

“Amendment of Freedom of Information Acts 1997 and 2003.”

“An Act to amend the Freedom of Information Acts 1997 and 2003 by including EirGrid as a public body covered by the aforesaid Acts.”


Let us hope the Minister makes good on his public promise and throws the full support of the Government behind this Bill and so allows citizens access to the previously secret and undiscovered machinations of the behemoth that is EirGrid. And please save us the “commercially sensitive document” spiel in an attempt to evade the intended function of the Act. This is taxpayer’s money and we have a right to know how it is being spent.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from full-time practice in 2002 to take up a lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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