As the substance of the debate on the Bill will relate to the wording of the proposed constitutional amendment contained in the Schedule to the Bill and since it would be appropriate to have that Schedule decided upon before deciding on section 1 of the Bill, which provides for the insertion into the Constitution, I suggest the House postpone consideration of sections 1 and 2 of the Bill until after the Schedule has been agreed. This is a procedure which has been adopted on Committee Stage in the Seanad in the case of previous Bills to amend the Constitution and which I suggest would lend itself to a more logical and ordered debate. In accordance with Standing Order 89 I ask the Leader of the House to move that consideration of sections 1 and 2 of the Bill be postponed until the Schedule has been disposed of.
An Bille um an Seachtú Leasú Déag ar an mBunreacht (Uimh. 2), 1997: An Coiste agus na Céimeanna Deiridh. Seventeenth Amendment of the Constitution (No. 2) Bill, 1997: Committee and Remaining Stages.
That, in accordance with Standing Order 89, the consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.
Amendments Nos. 1 and 2 to the Bill and amendments Nos. 1 and 2 to the motion, No. 6 on the Order Paper, are related and may be discussed together. Is that agreed? Agreed.
Tairgim leasúa 1:
I leathanach 7, líne 3, "Déanfar" a scriosadh agus "Cé is moite de na cásanna teoranta sin a fhorodófar le dlí, déanfar" a chur ina ionad,
i leathanach 7, líne 13, "The" a scriosadh agus "Except in such limited cases as may be prescribed by law, the" a chur ina ionad.
I move amendment No. 1:
In page 6, line 3, to delete "Déanfar" and substitute "Cé is moite de na cásanna teoranta sin a fhorodófar le dlí, déanfar",
In page 6, line 13, to delete "The" and substitute "Except in such limited cases as may be prescribed by law, the".
The proposal here follows on from the points made by a number of speakers from this side on Second Stage concerning the necessity to have the wording as near perfect as possible. This is the first time since 1937 this section of constitutional law is to be put before the people for amendment. It is worth getting right because we do not want to wait for another tribunal of inquiry or some other event of public interest to arise to find that the provisions we are putting before the people are not sufficient. If amended, paragraph 1 of the Schedule would read:
.. Except in such limited cases as may be prescribed by law, the confidentiality of discussions at meetings of the Government shall be respected. .. save only where the High Court determines that disclosure should be made in respect of a particular matter—...
The purpose of this amendment is to allow for certain additional limited cases of disclosure of Cabinet discussions to be specified by law. I accept that the proposals which were agreed by the previous Government and which have been endorsed by this Government and presented by the Taoiseach deal with the problems that arose in the beef tribunal. However, the Supreme Court judgment in that matter set out the principle of Cabinet confidentiality but did so only in the context of tribunals. The court did not rule on all possible cases of relaxation of confidentiality. It should be possible to retain some flexibility in legislation and that is what is being proposed.
The Taoiseach addressed questions in relation to the National Archives Act. He referred to the records of discussions at Cabinet by saying they do not often arise. It may be in the public interest at some stage that these records would be available for disclosure by way of a method other than that outlined in the legislation.
Reference has been made today to the article by Gerard Hogan inThe Irish Times of 15 September. He outlined three cases where this legislation might preclude accounts of discussions being given: Terence de Vere White's account of the Government discussions in December 1922, leading to the execution of Rory O'Connor; John Bowman's account in de Valera and the Ulster Question of the debate in government in June 1940, in respect of relations and discussions between the British and Irish Governments in the context of the Second World War, and Noel Browne's account of the lack of discussion regarding the decision to leave the Commonwealth. These are matters of public interest and are certainly of interest to political scientists and historians.
Despite the Taoiseach's assurances I still believe this type of discussion would be precluded by law. The situation would be made worse by virtue of the constitutional amendment were we not to make provision for the Oireachtas to make further exceptions in the future. We are not talking about major but limited exceptions.
Under this legislation we trust the High Court to make a decision in the case of a legal matter and a tribunal to go to the High Court to follow up this matter, but we do not trust these Houses to take account of the admitted shortcomings that may arise in the future. These have been admitted by speakers in the debate here and by speakers in the other House.
I remind the House that Senator Quill has raised some of these matters for discussion. During the Dáil debate a number of Deputies on the Government side — for example, Deputy Lenihan — thought these arguments had much merit and Deputy O'Malley said our amendments should be accepted by the Government.
In the interests of not having to come back in a number of years to tease this matter out at length and given the difficulty experienced since the beef tribunal, I urge the Government to accept this amendment which seeks to entrust to the Houses of the Oireachtas the power to decide in the public interest in the future that further exceptions in respect of Cabinet confidentiality can be made by law.
I have listened carefully to what has been said and, while I have some sympathy with what Senator Gallagher is proposing, I could not support his amendment. As the Taoiseach pointed out, this matter received the most detailed attention from some of the best legal minds — disinterested people who were seeking to resolve a particular problem which arose out of the Supreme Court decision. As leader of the House in the last Government I was a member of the Government legislation committee and I was aware of the efforts, the various drafts and the attempt by an Attorney General and his staff to resolve this problem. What we have now is probably the best that is possible under the circumstances. I do not want to say at this stage that over the past two and a half years I took a particular point of view; I supported the document which emerged, not simply because it was produced by the Government of which I was a supporter but because I believed from talking to the people involved it was their best possible answer to the particular problem. I am not saying now, simply because I am in Opposition, that the Labour position is other than totally sincere and that I am going to change my position.
On the positive side, I was taken by the frankness of the Taoiseach in his reply. He addressed the questions honestly and in a practical and commonsense way and tried to get to grips with the reality of the problems concerned. He made the position clear concerning former members of Government writing their memoirs, issuing statements and going on television programmes to justify their position. Any danger there may have been of a former Minister being locked away because he or she revealed the nature of a row, a discussion, or their particular version of events was satisfactorily cleared up.
The question of Cabinet discussions is an interesting one. I have never been a member of the Cabinet and unlikely to be at this stage, but who knows?
The Senator might be.
I am always ready to be drafted in. I have had the experience, professionally, of reading the minutes of Cabinet discussions. It is interesting that in the early days of the State the record of the discussions was much fuller than it later became. That did not last very long. In the first decade frequently there would be references to the point of view taken by particular Ministers — simply that this point of view was taken by Minister A, this view by Minister B and this was the decision arrived at. From the early 1930s the only record of Cabinet discussions I have come across is simply the decision taken but not the points of view. I do not think a great deal will be learned so long as we have the assurance that the National Archives Act is not superseded. The Taoiseach has given a strong commitment in the event of any problems arising they will be examined either in the context of the all-party committee or by his Department. I am fairly happy with what he has said.
The prime purpose here is to ensure that when the new tribunal sits it will not be hampered in the same way as was the beef tribunal by the decision of the Supreme Court in 1992. I will not be supporting these amendments.
I am disappointed that Senator Manning has indicated he will not be supporting the amendments because there was widespread support in the Dáil when the legislation was discussed there. We are not itemising new specific areas of disclosure. We are proposing that the confidentiality of discussions should remain except in such limited cases as may be prescribed by law and that we do not need to revisit this area with a new constitutional amendment. That is the difference between our approach and that of the Taoiseach. The Taoiseach agrees that at some future date we may have to revisit this area. However, the only way we can do so is by way of constitutional referendum. Why should we put ourselves through the difficulty and expense of doing that when we can provide for the making of regulations by virtue of the powers conferred on us by the Oireachtas?
We are not interested in tittle tattle, items of scandal, sharp interjections or anything of that nature made across the Cabinet table. We would not have this amendment before us had the beef tribunal not reported that it was thwarted in its efforts to complete its report by virtue of not having access to the discussions that gave rise to decisions at the Cabinet table. Clearly there are important matters dealt with in discussions that may not come out in documents. Why should we not cover these exigencies of public interest that are not specifically prescribed in this legislation? It may be, as the secretary to whom the Taoiseach refers said, that there was little in the discussions of 1992 which would have thrown light on the difficulties of the refund problem at the time, but that was not the conclusion of the chairman of the tribunal. Certainly the huge question mark over the findings of that tribunal resulted from the chairman's inability to probe discussions when the statements of the principals interviewed at the time conflicted. Because he was unable to find out what exactly went on, the chairman could not come to a decision on the matter.
Perhaps the Taoiseach would clarify the situation in 1992 when the then Taoiseach, Deputy Albert Reynolds, directed that documents be made available from the National Archives and said he was doing so because there was no formal and definitive ruling prohibiting such disclosure. Is that still the case and could we still have such disclosure seeing that such documents were part of the discussions at the time?
Senator Manning has covered most of the points I wanted to make. I am glad to note he is supporting the Government. It is crucially important to emphasise that as a result of the Ambiorix case in 1991 the matter of documents is no longer an issue. The High Court decision allowed all documents to be made available as required by the High Court. What is at issue here, what has arisen from the beef tribunal, is the necessity that may arise for discussions at Cabinet to be opened up in a similar fashion. These issues have been teased outad nauseam over the past 30 months by the three parties in the outgoing Government, Fine Gael, Labour and Democratic Left. Subsequent to this an independent constitutional review group reported at length and concluded that the possibility that Cabinet confidentiality might in some circumstances be lifted could inhibit discussion and therefore the effectiveness of Government. All parties support the concept that Cabinet confidentiality should be retained as a constitutional requirement. That was put in place in the 1937 Constitution and should be retained as far as possible.
One of the amendments suggested that legislative measures should be introduced that would, from time to time, change this. That would take from the constitutional protection given to the Cabinet on these issues. Despite the sincerity of the Labour Party's amendments, they are unnecessary. The Taoiseach's proposal is carrying on the baton of the last Government's proposals. They are reasonable and have been debated for a long time. They should be passed without amendment.
Regarding Senator Costello's question, the position is still the same. Data could be released from the National Archives.
Does the Taoiseach have advice from the Attorney General to that effect?
That is my advice.
Tarraingíodh siar an leasú faoi chead.
We now come to amendment No. 3. Is it agreed to discuss Amendment No. 3 to the motion, item 6, with amendment No. 3? Agreed.
Tairgím leasú a 3:
i leathanach 7, líne 8, "ó bhinse" a scriosadh agus "ón gcomhalta nó ó na comhaltaí de bhinse" a chur ina ionad, agus
i leathanach 7, líne 20, "the member or members of" a chur isteach in ndiadh "by" sa chéad áit a bhfuil sé.
I move amendment No. 3:
In page 6, line 8, to delete "ó bhinse" and substitute "ón gcomhalta nó ó na comhaltaí de bhinse"
In page 6, line 20, after "by" where it firstly occurs, to insert "the member or members of".
We tabled this amendment to try to get clarification on whether the tribunal itself is or is not a legal person. We are advised that the tribunal may not be a legal person in the sense of being recognised as being empowered to make the application as specified in this part of the legislation. It is in an effort to try to improve clarity that we are suggesting the inclusion of a specification that it should be a member or members of the tribunal.
I am advised that to permit a member or members of the tribunal to make an application to the High Court for disclosure of discussions would make the whole tribunal mechanism unworkable. A tribunal set up under the Tribunal of Inquiries (Evidence) Acts must operate in a unified way if it is to achieve results. It would be very difficulty to envisage the chairman of a tribunal presiding over a situation where one of its members overruled him or her and sought to make an application to the High Court in respect of Cabinet discussions.
This issue has been the source of some lengthy debate and that was the conclusion reached which clarified the position.
To be absolutely clear about it, is it the Taoiseach's advice that the tribunal will be a legal body which will have the right to make the application outlined here?
Yes. Tarraingíodh siar an leasú faoi chead.