Wednesday, 2 September 2009

NAMA is still not very transparent

Nat O'Connor: Brian Lenihan on NAMA: “...there has been very little criticism on the vast bulk of the legislation. In areas such as transparency and accountability, I am open to suggestions on amendments from the opposition. The bulk of the controversy has focused on two sections of what is a very long bill - and they are the sections dealing with the valuation procedures.”

Not to say there are no valid alternatives, but given that NAMA is Government policy and is likely to go ahead, barring a General Election or other major upset in the meantime, are there indeed no criticisms of the other details of the draft legislation?

I'm working off this copy of the draft proposals.

Rather than produce a massive list, I'm going to focus on additions that would assist transparency and accountability.

One obvious measure would be if NAMA were included under the Freedom of Information Acts. This would ensure that individuals directly affected by NAMA have a right of access to documentation relevant to their cases. It would also allow the public to have access to the background material that informed NAMA's decision making. Inclusion under the FOI Acts would be a useful guarantee of openness, and the confidentiality exemptions in that legislation would protect individual and commercial privacy. Of course, FOI is not enough of a guarantee of openness on its own as the legislation has been weakened so much, but it would be a symbolic step in the right direction, if the Minister is really seeking to increase transparency and accountability.

Another area for openess is around the fact that the Minister will have the right to issue Guidelines or Directions to NAMA (sections 13 and 14). It is important for transparency that these should be public documents as soon as they are issued.

NAMA will be obliged to provide a Committee of the Oireachtas with "such information as it requires" (section 51), but the Government generally retains a majority vote on all these committees. It would be much better if some mechanism ensured that Opposition parties on a committee could call for information that they deem necessary to perform their duty of holding NAMA (and the Government) to account.

The Minister is to have the power to require NAMA "to report to him or her, at any time and in any format that the Minister directs, on any matter," (section 49). And all such reports will automatically be "deemed to be confidential information". Would this confidentiality clause prevent the Minister from disclosing one or more of these reports? Or limit his/her ability to answer questions to the Oireachtas? This clause could be deleted and the information would still be protected by the confidentiality provisions in the Constitution, Official Secrets Act, Freedom of Information Acts and Data Protection Act.

Of further concern is the fact that the NAMA Bill proposes to introduce new confidentiality provisions and offences (sections 171 and 7 respectively). Ireland has more than sufficient information law to regulate such matters. These provisions suggest a worrying concern for secrecy and are discouraging, despite the Minister's claim that he is open to suggestions for how to make the operation of NAMA more transparent.

No comments: