Tairgím: "Go léifear an Bille an Dara Uair."
I move: "That the Bill be now read a Second Time."
This Bill has been restored to the Order Paper having been prepared by the last Government and presented to the House on l May. I compliment my predecessor, Deputy John Bruton, and the former Attorney General, Mr. Dermot Gleeson, SC, for the very careful and detailed consideration they gave to the preparation of the Bill.
The Fianna Fáil general election manifesto gave a commitment to consider the holding of a referendum on Cabinet confidentiality in conjunction with this year's presidential election. The Progressive Democrats' manifesto gave a commitment to ensure that the absolute ban on disclosure of Cabinet discussions can be lifted where disclosure is clearly in the public interest.
I am glad, on behalf of the Government, to propose this Bill to the House. The text of the proposed constitutional amendment set out in the Bill provides that the absolute confidentiality which applies to Government discussions will be relaxed in particular and exceptional circumstances. It proposes that a new provision should be inserted into the Constitution after Article 28.4.2º. This Article provides for collective Cabinet responsibility. The new provision will ensure that the confidentiality of Cabinet discussions will continue to have constitutional protection except where the High Court determines that disclosure should be made in the interest of the administration of justice as decided by a court, or by virtue of an overriding public interest pursuant to an application in that behalf by a tribunal appointed to inquire into a matter of public importance. This may be a necessary prelude to any investigation by a tribunal which is mandated in respect of issues on which it is necessary to seek evidence in relation to discussions at Government meetings. The Government is proposing the immediate passage of the Bill through both Houses of the Oireachtas so as to facilitate the proposal being put to the people by way of a referendum on 30 October next, the date envisaged for the presidential election.
The tribunal of inquiry into the beef processing industry, conducted over an extended period, brought to notice a shortcoming in the existing constitutional framework. The desire of the tribunal to inquire into the proceedings of Government meetings was precluded by a majority ruling of the Supreme Court. The variety of judicial rulings delivered at that time illustrates the complexity of the issue and the sensitivity of the balance to be achieved. The need for confidentiality in general affairs is fundamental to Government and will not be disputed. Nonetheless, there is a simultaneous consensus on the need to permit a focused and structured inquiry, as necessary, in the public interest.
I will give Deputies some of the background to this Bill. At an early stage in the conduct of the tribunal of inquiry into the beef processing industry the chairman indicated an intention to ask questions concerning the details of discussions which took place at Government meetings in June 1988 relating to decisions on export credit insurance for beef exported to Iraq. Counsel on behalf of the Attorney General objected to the asking of those questions on constitutional grounds. The chairman then deferred asking any questions, although he made a ruling that he was entitled to ask them in order to give the Attorney General an opportunity of applying to the High Court by way of judicial review for resolution of the issues.
I should emphasise that witnesses at the tribunal did not refuse to answer questions relating to Government decisions. Rather, it was not permissible for them to so do as they could be held to be acting contrary to the constitutional position.
Following an earlier High Court case, the Supreme Court in its judgment of 21 August 1992 upheld, by a three to two majority, the Attorney General's contention in relation to the absolute confidentiality of Cabinet discussions. Leading the majority, Chief Justice Finlay stated:
Confidentiality of the contents and details of discussions at meetings of the Government is a constitutional right which, in my view, goes to the fundamental machinery of Government and is, therefore, not capable of being waived by any individual member of the Government nor, in my view, are the details and contents of discussions at meetings of the Government capable of being made public, for the purpose of this inquiry, by a decision of any succeeding Government.
Deputies may recall that the courts had previously established in the Ambiorix case in July 1991 that no Government or Cabinet documents were privileged from disclosure in court merely on account of their origin. Documents which the Government wanted to protect on grounds of Executive privilege would have to be inspected by the judge who would balance the need for secrecy against the interests of the litigant and the public in the administration of justice.
As a result of the Supreme Court ruling, the report of the tribunal noted that it was limited in its inquiries to decisions made by the Government and documentation in regard to such decisions and was precluded from inquiring into "the contents and details of discussions at meetings of the Government". The report stated that the ruling created difficulties for the tribunal because documentation relating to discussions at Government had been received by the tribunal, some of which was referred to in evidence, prior to the judgment of the Supreme Court and the tribunal was precluded from having regard to it.
The Constitution Review Group, chaired by Dr. T.K. Whitaker, dealt briefly with the matter in its report published in May 1996. The group concluded there were strong grounds for extreme caution in any approach to relaxation of the Cabinet confidentiality rule. It noted:
.that such confidentiality is an almost universal feature of Government and the essential underpinning for the doctrine of collective responsibility enshrined in Article 28.4.2. Collective responsibility is, in turn, essential to a Government's ability to plan and act cohesively. The possibility that Cabinet confidentiality might in some circumstances be lifted could in itself, obviously, inhibit discussion and, therefore, the effectiveness of Government.
The group considered two approaches:
1. any relaxation should be subject to the most stringent test of public interest, as judged by the High Court or Supreme Court, and should be confined to the context of a criminal prosecution against a Member, or former Member, of the Government (as is the case in the United States and Australia)
2. the context, specified at 1, could be unduly restrictive and it might be better to express any constitutional relaxation in less specific terms while still applying the test of overriding public interest as determined by the High Court or Supreme Court.
The group also stressed that the rule of Cabinet confidentiality does not apply to Government decisions which are formally recorded — their communication to those concerned establishes them as items of public knowledge. That is the legal history attaching to this issue.
The previous Government undertook an extensive examination of the complex issues involved in proposing a constitutional amendment to change the position defined by the Supreme Court. It must be acknowledged that some of these issues were not easy to resolve. The doctrine of collective responsibility is underpinned in an important way by preserving the confidentiality of Cabinet discussions. The potential disclosure by an individual member of the Government of these discussions in a particular case at some future time could have an inhibiting effect on free discussion at Cabinet.
Collective responsibility of Government, and thereby the requirement for confidentiality in respect of Government discussions, is a common feature throughout Europe. It is important that we do not lose sight of the need for that standard to continue as we move to consider some specific circumstances in which it might be altered. Such confidentiality has been an element in the political stability we have enjoyed over many years.
I believe that the proposals agreed by the last Government are reasonable, given the complexities involved. They are, in many ways, an advance on the manner in which the Cabinet confidentiality issue is dealt with in other jurisdictions. Many EU states operate a much more restrictive arrangement on access to Cabinet discussions than what is proposed in this Bill.
As I have already said, the courts established as far back as 1991 that no Government documents were privileged from disclosure in court just because of their origin. Any documents which the Government seeks to protect have to be inspected by a judge of the High Court. With the limited exception, therefore, of some documents which the Government might seek to protect on grounds, say, of national security, Government decisions which are formally recorded and the memoranda on which they are based are made available for court proceedings where there isbona fide application for their discovery.
It is important to emphasise this as there may be some misconception about it. The Bill before the House relates solely to discussions at Cabinet. Documents prepared for Cabinet and Cabinet decisions are already discoverable and made available under the current constitutional provisions. The draft constitutional amendment before the House provides that, while Cabinet discussions will continue to have constitutional protection, the High Court will have the power to determine disclosure in certain instances by virtue of an overriding public interest. I am confident that the people, in a referendum, will respond positively to the proposed amendment.
The all-party committee on the Constitution published two excellent progress reports last April. Neither dealt with the Cabinet confidentiality issue as the committee had been informed on its establishment that it was the subject of consideration by the then Government. I compliment the members of the committee and the members of the Constitution Review Group on their excellent work. I also compliment the secretariat provided to the committee by the Institute of Public Administration. Having regard to the all-party consensus on the re-establishment of the committee, immediately on assuming office I retained the services of the secretariat to continue necessary research work.
The Constitution is now 60 years in operation. It has stood the test of time very well but, as we move into the next millennium, it is timely that it should be reviewed. I propose to consult the Opposition leaders very shortly about the early re-establishment of the all-party committee and I look forward to its reports. I assure Deputies that the Government will give careful consideration to the recommendations in the first two progress reports from that committee and decisions in that regard will be announced in due course.
I commend the Bill to the House. I have already thanked my predecessor and the Attorney General for their work on this Bill. They struck a balance and I am prepared to work on the basis of what they put forward. I have not reopened the entire debate on this matter but I am taking the Bill based on the considered work which has already been done on the issue.