Vol. 458 No. 3
4 Mr. O'Dea asked the Taoiseach the plans, if any, the Government has to submit proposals on the question of Cabinet confidentiality to a referendum of the people; and if so, the extent to which the Government proposal will alter the effect of the Supreme Court decision on this matter arising from the beef tribunal inquiry. [16674/95]
The Government recently authorised the drafting of a Constitution Amendment Bill. This Bill will provide for the relaxation of the Cabinet confidentiality rule where details of discussions at Government are sought by either a tribunal of inquiry or a Dáil committee, inquiring into a matter of grave public importance, whose terms of reference specifically permit them to inquire into such discussions. No decision has been made yet as to when these proposals will be put to the people in a referendum.
I understood the Taoiseach to say he will confine the change to tribunals of the Dáil and Dáil committees. Am I to take it he will not extend it to court proceedings, even though Cabinet documents may be revealed by way of court proceedings? Will the Taoiseach accept he is adopting a minimalist approach in this regard? The Programme for Government states: "The Law Reform Commission——
I must dissuade the Deputy from quoting, for obvious reasons.
The Programme for Government states that the Law Reform Commission will be asked to consider the position and to report on the extent of the relaxation. Has the matter been referred to the Law Reform Commission or has the Government reneged on that commitment and, if so, why?
On the first part of the question concerning courts, the Government decided it would address the matters that arose directly from the decision of the Supreme Court in 1992 in the judgment arising from the proceedings of the beef tribunal which wished to inquire into matters that occurred at a Cabinet meeting, in which a number of Ministers of the Deputy's party were involved. On that occasion, the Supreme Court made no decision on whether courts could require such information. It simply made a decision on whether a tribunal, which is an instrument of the Oireachtas, could make such an inquiry. We took the view that we should remedy the matter that arose directly from the Supreme Court decision which affects tribunals. The question of courts having access in particular cases to Cabinet discussion is a matter that is best decided by the courts themselves without the aid of a constitutional amendment. They may make that interpretation on the basis of existing constitutional provisions.
On the second part of the question, the Government took the view that Cabinet confidentiality is not in the first instance a technical legal matter. The question of whether — and to what extent — Cabinet discussion should be confidential is a matter of public policy upon which the Government, accountable to the Dáil, should make the first decision.
The Government changed its opinion.
Therefore, we decided to proceed on the basis that the Government would make a decision on the appropriate form of constitutional amendment and that there was no necessity for us to delay matters by involving ourselves in a reference to the Law REform Commission, which in practice would be superfluous. That involved a change in the position as set out in the Programme for Government. In the interests of dealing with this matter with a reasonable degree of expedition, the change in procedure decided by the Government was the correct one because this is essentially a matter of public policy.
The Taoiseach is being disingenuous. It is clear from the Supreme Court decision that the ban on revealing Cabinet proceedings is absolute. If a tribunal of inquiry, to whose findings the proceedings of Cabinet may be central, cannot inquire into what went on at Cabinet, it is clear that a court could not demand that information. The Taoiseach's explanation for going back on the promise in the Programme for Government to refer the matter to the Law Reform Commission defies belief. The reason the Government did not refer the matter to the Law Reform Commission is that it decided privately on a minimalist approach. It was embarrassed to put the matter to the Law Reform Commission because it might suggest that the Government should go much further than was decided.
The Deputy is not proceeding by way of questions.
Political matters should be decided by politicians and the question as to what degree Cabinet discussions should be confidential is best decided by serving politicians — that may not be the view of Deputy O'Dea — who understand what is involved in the responsibilities of Government. On reflection, I do not believe it would have been right to refer this matter to the Law Reform Commission, which is comprised of many estimable people, none of whom ever sat around a Cabinet table or made a Cabinet decision. I believe a decision of this nature is better taken by politicians. I have no doubt that the Government's case for the decision it has taken will be supported in this House as it is the only practical approach to the matter.
It is the minimum approach.
Regarding the other matter to which Deputy O'Dea referred, if the proposed constitutional amendment is passed allowing for a tribunal of inquiry to go behind Cabinet confidentiality and to inquire into Cabinet discussions having been given that specific mandate by this House, that will involve Ireland being more advanced than all EU countries except The Netherlands in terms of the extent to which it is willing to go behind Cabinet confidentiality. My view is that Cabinet confidentiality, particularly regarding discussion, is a very important matter of public interest and it is necessary to preserve such confidentiality particularly regarding discussion around the table. Where a matter is so serious as to necessitate the setting up of a tribunal by this House and the House has decided that inquiries ought to be made into what happened at Cabinet, it is justifiable to set aside the very important consideration of Cabinet confidentiality, but only in those limited circumstances. I do not favour a casual setting aside of Cabinet confidentiality. As somebody who as served in Cabinet, and I hope the Deputies opposite who have served in it will agree with me, I believe this matter should not be set aside lightly.
The Taoiseach's admission here today is yet another example of saying one thing in Opposition and doing another thing in Government.
I ask the Deputy to withdraw that statement. He should check what I said in Opposition. I have never been one in Opposition who has sought to set aside Cabinet confidentiality in a light way.
It was set out in the programme for Government.
Let us proceed by way of questions.
The record will show that I have been particularly concerned to maintain the integrity of Cabinet discussions.
I was not for one minute suggesting otherwise, but the programme for Government which the Taoiseach and his partners put together this time last year clearly sets out their intentions in this regard. The Taoiseach is now deciding to do something else.
The Taoiseach probably did not read it before he signed it.
All his birthdays have come together.
The Government has introduced a Bill dealing with the compellability and privilege of witnesses who will come before committees and the Dáil. There are many exclusions in that Bill and some people suggest there are more exclusions than inclusions. One of the exclusions relates to Cabinet discussions. If the Oireachtas passes that legislation and a referendum on Cabinet confidentiality is held subsequently, will it be necessary to amend the legislation before the House?
The constitutional amendment being proposed here would not apply to normal committees of the House. It would apply only to tribunals established to investigate a specific purpose and, therefore, the resolution governing the establishment of a tribunal would be in the origin of the powers of the tribunal. To my knowledge a tribunal would not rely on the general powers of privilege and compellability in the Bill before the House. If the Deputy has a further query on that matter, I suggest he raise it with the Minister on Committee Stage who I am sure will assist him to the maximum possible extent.
The last time this issue was raised I suggested to the Taoiseach that the Government might take the legislative route first and test its constitutionality and that a different Supreme Court might have a different view on it. The Taoiseach said on that occasion that he would consider the matter. Has it been considered and is it feasible?
I express my appreciation to the Deputy and Deputy McDowell who made that suggestion. I had the matter seriously investigated. The reason we decided not to follow this route is that we were advised that under the Constitution as it stands legislation can only be proposed by the Government if it reasonably believes the legislation it is proposing is constitutional. It would not be appropriate for the Government to propose legislation of uncertain constitutionality in the expectation that the President might refer it to the Supreme Court. Referral by the President is something over which the Government has no control. It is an independent prerogative of the President and cannot be anticipated by the Government in any way. Therefore, the Government took the view that any legislation proposed by it should be constitutional in its view in light of current constitutional decisions by the courts. They clearly indicate a position taken by the courts in regard to this matter and tribunals. The Government took the view that although the proposal made by Deputies McDowell and Harney would have many merits in terms of convenience and ease of decision, it is not one we could properly follow in light of our constitutional obligations. I advise the Deputy that this proposal which was seriously made was seriously examined.
I note the Taoiseach's staunch defence on Cabinet confidentiality. Did he have concerns when the former Minister, Gemma Hussey, announced she would write her Cabinet memoirs? Did he do anything about it? What does he think of Government colleagues who decide to write such memoirs?
The Deputy has raised quite a separate matter involving a person outside this House.
Any decisions I took on that matter were not taken as Taoiseach.
Could we have clarification of the Chair's last statement?
The Taoiseach said something about me. What did he say?
Did the Deputy hear what I said?
I think the Deputy interrupted herself.
What did the Taoiseach say?
I believe the question posed by the Deputy does not arise in the context of this question. Any views I might have expressed privately about individuals regarding matters of that nature in the past when I was not Taoiseach are separate. I have no problem in disclosing my general view in that regard and I will give it to the House freely without reference to any specific case. Cabinet confidentiality must be respected by anybody writing recollections of any kind concerning his or her time in Government.
You complained officially at the time.
So what if I did?
Now you will not admit it.
Regarding the proposal to amend the Constitution by way of a referendum on Cabinet confidentiality, the Taoiseach appears to indicate that the Government is moving towards a position where some discussion of Cabinet matters could be disclosed in tribunals validly set up. However, all Cabinet discussions are excluded according to the provisions of a Bill before the House. Knowledgable people have said that hopefully we will never have another tribunal like the beef tribunal given the massive expense it imposed on taxpayers, but we have seen how a committee of this House can, as it did this time last year, validly investigate circumstances. I ask the Taoiseach and his Government colleagues not to close their minds to allowing some relaxation on Cabinet confidentiality in terms of some committees of this House which might be specially set up to investigate circumstances that might arise in the future.
The Government has made a decision on this matter along the lines I outlined in my reply, that the only relaxation of the strict rule of Cabinet confidentiality we envisage is in respect of tribunals of inquiry. We do not propose to set that aside in any general way in regard to committees of this House working in the normal way. I have indicated that in a response to the Deputy. It would be insincere if I were to pretend that I will consider a matter upon which a decision has been taken. A decision has been taken to continue in the manner in which we are proceeding.
