Amendments Nos. 27 and 36 are related to amendment No. 26 and they may be taken together. Is that agreed? Agreed.
SECTION 5.
I move amendment No. 26:
In page 5, subsection (1), lines 39 and 40, to delete ", relating to".
This is a drafting amendment.
Amendment agreed to.
I move amendment No. 27:
In page 6, subsection (1)(a), line 1, before "discussions" to insert "relating to".
Amendment agreed to.
I move amendment No. 28:
In page 6, subsection 1(a)(ii), line 5, to delete "one" and substitute "two".
I had some difficulty with the issue of Cabinet confidentiality. I do not feel I have the wisdom to know how best to deal with it. The Government has already committed itself to change the law on Cabinet confidentiality and I am sure the Minister of State will tell me we can do nothing until that matter is clarified.
I accept that discussions at a meeting of the Government are, in effect, confidential and it would require a constitutional referendum to change that. However, I focused on the committee aspect and I propose to change from one to two the number of members referred to in the subsection. The provision in the section goes way beyond what we understand to be Cabinet confidentiality because it would allow a Minister to gather a group of his officials and decide it constituted a committee under this section which could not appear before a committee of the Dáil.
It has to be a committee appointed by the Government.
I accept that. I am the only person present who has been at Cabinet meetings. Everything does not come before Cabinet in writing and certain matters are decided on the back of an envelope. In an emergency there may be a retrospective appointment. Perhaps I am being overly suspicious but I just have a difficulty in that respect. This section goes beyond what is the current situation in regard to Cabinet confidentiality and by including section 5(a) the Government will be going in the opposite direction to that it espoused in its Programme for Renewal document.
The Constitution does not require all meetings to be confidential. In effect, the Minister of State is extending Cabinet confidentiality to a number of subcommittees which are not currently subject to Cabinet confidentiality. It is excessive to allow such a situation when, in effect, a committee composed of ten civil servants and one Minister could be excluded from examination on the basis that it breaches Cabinet confidentiality. Perhaps the Government did not mean to go this far in the drafting of this amendment but it would be a retrograde step rather than a positive one.
I support Deputy Ahern's amendment. I am deeply concerned about the extension of Cabinet confidentiality implicit in section 5(a)(i). I appreciate this extension to cover a committee appointed by the Government does not apply to any meeting that happens in any Minister's office. The Minister of State should bear in mind that there may be circumstances in which a future Government would find it embarrassing if the way in which it approached a certain proposition meant that it was summoned before an investigating committee and it would decide to protect itself. If I were Attorney General I would advise the Government to set up a group of civil servants working on the project as a Government committee and to include a Minister as part of that committee. Thus, it would fall outside the compellability rules.
I accept this is tendered in good faith but it has gone too far because it gives a licence to the Government by simply rejigging the process to place it wholly outside the public domain of examination. For example, if I had been Minister for Industry and Commerce a number of years ago and proposed to extend export credit relief to Iraq in circumstances where nobody thereafter would ever be in a position to criticise the process, I would go with my wily Attorney General before the Cabinet and point out that if the matter became public it would be in trouble. I would ask it to set up a Government committee on beef exports to Iraq and the people who otherwise would be carrying out this function in a potentially examinable way would be deemed to be a Government committee on export credit insurance to Iraq and I could perform ordinary ministerial functions under the blanket of a Government committee. I would be invisible and nobody would ever know anything about it.
Deputy Ahern's amendment at least requires two Ministers. It is open to criticism that by adding an extra Minister, the same result can be achieved. It should be possible to put down an amendment which does that and also requires that the business of the committee is properly that of Government as opposed to departmental business about which the Government says, if it appears on the Cabinet table, it will be confidential. In the life of any Government, from time to time there will be a temptation to throw a ring fence around certain operations of the Executive to make them immune from investigation, and once this legislation is enacted, if I were a resourceful Attorney General and was asked by the Taoiseach of the day if this could be used to achieve his ends, I would point out that he could and advise him that he should.
I erred on the side of conservatism when I drafted this amendment on the basis that the committee would at least get an opportunity to discuss the issue. I thought the Government would be interested in retaining the status quo and would have deleted section 5(a)(ii). However, if it did so it would give us the situation that exists particularly in regard to parliamentary questions. Parliamentary questions are not allowed to impinge on the collective responsibility of Ministers but only on discussions between Ministers, not discussions between Ministers and civil servants.
That is an important point.
We should retain what we have and, on Report Stage, put down an amendment deleting section 5(a)(ii). However, that does not go any further than what the Government espouses in its programme.
That is amendment No. 29.
Not really; my amendment No. 29 is slightly different. I am coming to the view, however, that to claw ourselves back to the position in which we now find ourselves, we should delete paragraph (ii) altogether on Report Stage. If the Minister and the Government are interested in bringing forward an amendment on Cabinet confidentiality they would be going further than deleting paragraph (ii) and would in some way be restricting paragraph (a)(i). The Minister may say that the Cabinet confidentiality referendum has not yet been put in place, it was promised earlier this year but we have not yet got it. However, at least leave us with the status quowhich is subsection (a)(i).
I am not sure I can meet members' concerns in relation to that.
Put it this way, the Minister of State should be capable of producing wording tighter than this.
This subsection provides that matters discussed at Government meetings are to be exempt from compellability. From time to time it was thought advisable to have more detailed discussions on various matters than would be practical at full Government meetings and matters of this kind may be referred to committees of the Government. Even single issue matters — Northern Ireland, justice or major agricultural issues — could still be a matter for the Government even though it might be handled by a sub-committee that reports back to Government.
Made up of Government members.
Not only Government members. It would have to have relevant officials, or maybe a Minister of State as well, as part of it if, for example, it had been delegated that authority. It is far too restrictive to leave it as "Government members only". You never get a meeting of the Government that does not have civil servants present. The Secretary to the Government is, de facto, present and he is not a member of the Government. That is much too restrictive.
It does not include officials under the Constitution. That is stretching it. Whatever reference is in the Constitution to collective responsibility it does not relate to officials.
I accept that.
What the Minister of State is proposing is an extension of that. In effect, what she is doing is far more restrictive.
If the Deputy would just hear me out I will get to that point. Accordingly, it is essential to provide the same level of confidentiality for discussions of such committees of Government as for formal meetings of the Government itself. For this reason a Government meeting is defined as including a Government appointed committee which includes members of the Government by themselves or together with one or more Minister of State, the Attorney General or one of more civil servants. The same definition is in the Ethics in Public Office Act, 1995.
Where is this definition coming from?
The Ethics in Public Office Act. Let me finish.
But from where did the original definition come? Can the Minister read back a bit?
For this reason a Government meeting is defined as including a Government appointed committee——
Who defined it?
It is being defined in this Bill but it is also defined in the Ethics in Public Office Act.
I see; it is being defined in the Bill?
I was about to say that. The definition is the same as in the Ethics in Public Office Act, 1995, apart from committees which consist of members of the Government and one or more civil servants. Does that make sense? The Government amendments to this subsection ——
Is it the same apart from that? Is it a different definition?
I will read the sentence again because I had some doubt as I read it whether it meant what I thought it should. The definition of a Government meeting is the same as in the Ethics in Public Office Act, 1995, apart from committees which consist of members of the Government and one or more civil servants.
That is right. It is not the same; it is a widened definition.
We do not need to deal with the Government amendments to this section — basically the removal of the phrase "relating to". The terms of this subsection are inconsistent with and more restrictive than the Freedom of Information Bill.
That is right.
The main difference between this and the Freedom of Information Bill is that this Bill exempts a meeting or committee consisting of one or more members of the Government together with one or more than one civil servant, whereas that definition of Government meeting does not appear in the Freedom of Information Bill.
That is right. This is more restrictive than is necessary for the Freedom of Information Bill.
This provision was specifically included to cater for a situation brought to attention by the Department of the Taoiseach because Cabinet subcommittee strategy meetings in advance of and during Irish EU Presidencies include, in addition to office holders, Secretaries of Departments. For that reason, subsection (a)(ii) and (iii) should be retained.
It is not the case that this arrangement takes out of the ambit of compellability any meeting of Ministers with their Ministers of State or civil servants. The restrictions only apply to discussions at a meeting of a committee formally appointed by the Government.
I follow that.
I appreciate that Opposition Members must from time to time take a malign view of a Government's intentions and that such a view underlines the proposed amendment. I can understand the point being made. The general tenor of the amendment is one with which we can live but since a committee appointed by the Government has been, in effect, mandated to hold meetings, some redrafting to align its wording with that of the subsection is probably called for and will emerge on Report Stage.
The bottom line is that a committee was in existence when this was being drafted which would have been adversely affected by it.
Probably not the first of its kind that would be. There is a procedure laid down.
Therefore, it was decided to permeate the side wall of this tyre to accommodate this.
Every six or seven years a committee is set up by successive Governments to run the EU Presidency. Committees on security issues have also been set up.
The Minister should look at section 6(9)(d).
A Deputy
Are we not deleting that?
That would be quite enough to deal with our EU Presidency commitment.
The EU is the example of what is there at the moment. Similar subcommittees on major security issues have been set up when necessary from time to time, and they have to be covered too.
I go along with the idea that you can have committees of the Government, but I totally oppose the idea that we should accommodate an existing practice by an amendment which is so open to abuse as to almost demand, in the fullness of time as an inevitable consequence, that it will be so abused.
If the Government wants to have special kinds of sub-committees it can comply with a tighter definition of Government committee than the one on offer. It can have two Ministers on it, and can do whatever it must, but if you leave it in its present form it will certainly be abused by some Government. I think Deputy Ahern will agree with me. The temptation will be too massive to say that you can immunise whole areas of departmental activity by handing out a certificate from the Secretary to the Government to say that this is now a Government committee and is not just the Department functioning, and the Government delegated the Minister specially to meet these civil servants to do this aspect of departmental business in a special Government committee with them.
Looking at the section as drafted, the definition of "civil servant", as we found earlier, does not include the programme manager.
It does; the Deputy is wrong.
Therefore, under this reference, Cabinet confidentiality applies to a programme manager's meeting before a Government meeting, with one Minister present.
It would have to a one-sided Government.
I accept that but it is going way beyond the concept of collective responsibility as laid down in the Constitution. People are taking a huge liberty in putting this into law.
It is not in the Ethics in Public Office Act, 1995.
Ultimately, the 15 members of Government have to——
——act as a collective authority.
They are the authority, not programme managers, civil servants or anyone else. The Minister is not only extending the ambit of restriction on discussions relating to Government business but is also redefining the issue of Cabinet confidentiality in a way never envisaged. The Minister is going outside the ambit, in accordance with the Constitution, of elected Members of the Oireachtas being the Government.
I admit that I put down some amendments on the basis of my party being in Government in the future. In the cold light of day I am not sure if that is what people, even in my party, wish to have. Excepting circumstances where committees are subservient to the Government, surely discussions are subject to the Official Secrets Act. If they are not, some device should be put into law so that they are. The extension of collective responsibility is unconstitutional.
Article 28.4.1 of the Constitution says the Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government. I can live with the notion that the Government can set up a subcommittee of three Cabinet Ministers to consider Northern Ireland, defence and security and that a subcommittee of the Government established in that way can have at its meetings people who, because they are at a subcommittee of the Government, are just as much bound by Cabinet confidentiality as the Secretary of the Government, the Chief Whip or whoever is there at any given stage. It does not mean that the Government can invest any committee of civil servants which is headed by a single Minister, with the same status as a Cabinet meeting. The public will not wear that proposition. The temptation to abuse that is so massive because this Bill may occasionally be dynamite for some Governments who will have to deal with issues they would prefer no pesky committee of this House to have the power to deal with.
It is the principle.
Even if it was done with good intentions and there was a good reason, for example, a European Presidency committee, by putting the exception into law to facilitate that good intention, a wrong extension is given in the principle of Cabinet confidentiality to bodies which are not covered by it. A meeting between a Minister and a civil servant is never a matter of Cabinet confidentiality per se and it is not and cannot be anointed as such by a Government decision. Once the power to anoint meetings of Ministers with their civil servants as Cabinet meetings immune from investigation is given to Government, they will do it. I am fortified by the Minister’s speaking note that this is not recognised in the Ethics in Public Office Act, 1995, definition put in for Cabinet confidentiality purposes nor is it recognised in the Freedom of Information Bill. This is a one off.
The Oireachtas should not take this kind of abuse. The mental attitude behind it seems to be that the Oireachtas is the one group of which we have to be careful and it is given a more bristling definition of Cabinet confidentiality than anyone else; the opposite should apply. We should be given the most trust and certainty and a definition of Cabinet confidentiality which is at least as good as is in public and other enactments. This is wrong in principle, as Deputy Ahern said, and it should not be attempted.
I am taken aback by the efforts to extend the concept of the remit of Cabinet confidentiality. We are going in the opposite direction to the thrust of a future referendum——
The law would have to be amended.
We should not inscribe something in law, the impact of which will be lessened by the will of the people in the referendum. The Minister should look at this and consider the views of the committee.
Will we finish now and give the Minister time to reflect?
I am happy to conclude whenever the committee wishes.
We will not finish the Bill today because I have to discuss another amendment and I have to leave for a meeting in Dundalk.
We were supposed to be discussing amendment No. 28 but most of the discussion was on amendment No. 29.
We will not discuss an extremely important principle in ten minutes.
We will not finish the section today.
If we cannot make any further progress on this, we will have to revisit the argument anyway to make sense of the next day's proceedings.
We have not been discussing it very long. We have made our amendments and there is not much more we can say.
The points have been heard and noted and we will come back to them at the next meeting.
We will resume on amendment No. 28.
The Select Committee went into private session.