I congratulate you, a Chathaoirligh, on your election to the most prestigious position of the Upper House, one of the most prestigious positions in the nation — you rank fourth or fifth in those positions. I always made a point of attending the Seanad. I congratulate Members on all sides who have been elected to the Seanad and wish them well in what I hope will be a long period, bringing us up to the year 2002. I will do all I can to assist them. I congratulate Senator Manning, who again leads his party in opposition, and Senator Cassidy, the Leader of the House. I am pleased to have the opportunity to address the Members of the new Seanad on the first day of its assembly. I wish them every success in the important work they will undertake in the time ahead. In particular, I congratulate the newly-elected Members and wish them a long political career.
The Bill before the House was presented to the last Dáil on 1 May 1997 by my predecessor, Deputy John Bruton. I acknowledge the contribution he and the former Attorney General, Mr. Dermot Gleeson, senior counsel, made in preparing the Bill. They devoted an enormous amount of time and effort in considering the various constitutional, legal and administrative issues which arose and I thank them most sincerely for that. In the Fianna Fáil general election manifesto there is a commitment to consider the holding of a referendum on the Cabinet confidentiality issue in conjunction with this year's presidential election. In the Progressive Democrats' manifesto there is a commitment to ensure the absolute ban on disclosure of Cabinet discussions can be lifted where disclosure is clearly in the public interest.
On coming to office at the end of June the new Attorney General and I undertook a detailed examination of the Bill and the background to its formulation. On the basis of that examination the Government concluded that it was appropriate to seek the restoration of the previous Government's Bill with a view to putting the proposed constitutional amendment to the people by way of a referendum. The Government proposes that the referendum should be held on 30 October 1997, the date scheduled for the presidential election. The timescale is extremely tight having regard to the administrative arrangements which will have to be put in place following passage of the Bill.
That is the main reason the Government asked the Dáil to deal with the Bill at its special sitting last week rather than leave it until the House resumes on 30 September when the timescale remaining would render an early referendum virtually impossible. Another reason for proceeding with the Bill as drafted is the separate proposal to establish a further tribunal of inquiry into payments to Mr. Charles Haughey and Deputy Michael Lowry. It is important the new tribunal should have available to it the provisions of this constitutional amendment on Cabinet discussions.
I am glad, therefore, on behalf of the Government, to propose the 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 would be relaxed in particular and exceptional circumstances. It proposes that a new provision should be inserted into the Constitution after Article 28.4.2º. That Article provides for collective Cabinet responsibility. The new provision would ensure 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. Although the proposed amendment does not refer to the question of an appeal to the Supreme Court, this will be the case if appropriate.
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 that 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 illustrate the complexity of the issue and the sensitivity of the balance to be achieved.
I will give Senators some of the background to the 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 a Government meeting in June 1988 relating to decisions on export credit insurance for beef exported to Iraq. Counsel for the Attorney General objected to the asking of those questions on constitutional grounds. The chairman then deferred asking 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 a resolution of the issues.
Following a 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.
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.
The Constitution Review Group, chaired by Dr. T. K. Whitaker, dealt briefly with the Cabinet confidentiality issue in its report published in May 1996. The group concluded that there were strong grounds for extreme caution in any approach to relaxation of that 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 28.4.2º. 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 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. 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 in relation to 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 is bona fide application for their discovery.
I think it is important to emphasise this as there may be some misconception about it. The Bill now being proposed relates solely to discussions at Cabinet. Cabinet documents and Cabinet decisions are already discoverable and made available under the current constitutional provisions. The draft constitutional amendment now 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 motion on the statement for the information of voters in the referendum is brought forward pursuant to section 23 (1) of the Referendum Act, 1994. The purpose of the statement is to assist voters, by making available to them a statement relating to the proposed constitutional amendment. It will be printed on polling cards sent to electors and on posters displayed in the precincts of, and within, all polling stations. A copy of the statement will also be sent to each postal voter, and to each elector on the special home voters list to whom polling cards are not sent. The arrangement proposed in the motion is identical with arrangements made at previous referenda.
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 wish to compliment the members of the committee and the members of the constitution review group for their excellent work. I also wish to 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 very shortly with the Opposition Leaders about the early re-establishment of the all-party committee, and I look forward to its further reports. I also wish to assure Senators 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 and the motion to the House.