Micheál Martin
Question:1. Deputy Micheál Martin asked the Taoiseach the position regarding the programme for Government commitment on Cabinet confidentiality; and if he will make a statement on the matter. [37632/14]
View answerTuesday, 27 January 2015
Questions (1)
Oral answers (52 contributions)
As I have stated in the House on a number of occasions, Cabinet confidentiality is provided for in the Constitution and I have no plans to legislate on the matter.
Will the Taoiseach explain why it is in the programme for Government that legislation relating to Cabinet confidentiality will be changed? It is in black and white and I have asked the Taoiseach about this before. Will he explain why he bothered putting this into the programme for Government at the outset? What was the objective and the intention behind its inclusion? Why did the Taoiseach feel it necessary to include it? In light of the Taoiseach's reply, will he formally remove this from the programme for Government? It is in the section dealing with political reform.
It is on page 19.
It states:
We will radically overhaul the way Irish politics and Government work. The failures of the political system [...]. Government is too centralised and unaccountable. We believe that there must also be a real shift in power from the State to the citizen.
These were the heady days of 2011. The next line states "We will legislate on the issue of Cabinet confidentiality" and other issues. Will the Taoiseach explain what was meant by "We will legislate on the issue of Cabinet confidentiality" in the programme for Government?
The intention in the discussions that took place about the formation of the Government was that it would be possible to legislate for Cabinet confidentiality. As I stated on a number of occasions, it is contained in Article 28.4.3° of the Constitution. The Government is not proposing to legislate for Cabinet confidentiality. I think that is the third or fourth time I have answered this question for Deputy Martin.
No. When negotiating a programme for Government, parties outline their objectives. They might list X, Y and Z, indicating that they will deal with freedom of information or the Official Secrets Act, which the Government indicated it would amend, for certain reasons. For some reason, both parties agreed to formally insert a commitment as follows: "We will legislate on the issue of Cabinet confidentiality." What would the legislation do with respect to Cabinet confidentiality? What was the intention behind those who put the programme for Government together? Why was the line inserted and why did the Taoiseach sign off on it? I take it he signed off on every sentence with the then Tánaiste, Deputy Gilmore. What was in his mind?
We know Cabinet confidentiality is provided for in the Constitution. Everybody knows that and the Taoiseach knew it before the Government was formed. Why was this included? Must we reach the conclusion that the Taoiseach did not know what he was doing when the line was inserted and he did not have the foggiest notion of why it was put in? He still does not have an idea. It is a formal item in the programme for Government which states: "We will legislate on the issue of Cabinet confidentiality." All I want to find out is what this is for and why has it not been done. Somebody must have had the intention to do something and now the Government has decided not to do it.
Nobody in this House is any the wiser about the intentions or objectives of the Government with respect to Cabinet confidentiality when the programme for Government was put together. Was it meant to relax Cabinet confidentiality? Was there to be a constitutional amendment relating to Cabinet confidentiality? We know the banking inquiry cannot breach it because of the format that has been designed and was proposed to the House by the Government. What was the intention? Was the proposed legislation with a view to a referendum on relaxing Cabinet confidentiality? Will the Taoiseach enlighten me in any shape or form on the motivation behind the provision in the programme for Government, or the objectives which the Taoiseach, Tánaiste and others in the Government had at that time? It is a very straightforward question.
I would say it was a good intention-----
The road to hell.
-----that people would keep matters that are discussed at Cabinet to themselves.
He has given up on it.
The Deputy knows this well himself. He served in many Governments with the same constitutional provision and that did not seem to keep people quiet either. The intention was not to remove the constitutional provision or amend it. It was probably to embellish the fact that people should keep confidential matters discussed at Cabinet.
So it was to be reinforced?
It was a good intention and it will not be legislated for.
That is very strange as the Labour Party, while in opposition for years, would have railed against Cabinet confidentiality. It articulated strongly against it because it was too restrictive, it prevented inquiries and it was always used as a basis for not getting answers to questions. Now the Taoiseach is saying the Labour Party was conspiring with him to legislatively reinforce and re-embed Cabinet confidentiality, the Government was concerned about leaks from previous Cabinets and was determined that no member of the Cabinet should leak information. Laws were to be passed to ensure this would not happen. Is that what the Taoiseach is now saying? Was the Labour Party in favour of that? I doubt it very much. I would like to form a view that the Taoiseach did not know what he was doing. Clearly, he did.
I do not want to waste any more time on it. I have already stated it is a provision in the programme for Government that is not being carried through. We do not intend to legislate for Cabinet confidentiality.
Were there any more good intentions?
The Taoiseach stated quite bluntly, "I have no plans" to legislate on Cabinet confidentiality. The appropriate piece from the programme for the Government states:
We will radically overhaul the way Irish politics and Government work. The failures of the political system over the past decade were a key contributor to the financial crisis and the system must now learn those lessons urgently. Government is too centralised and unaccountable. We believe that there must also be a real shift in power from the State to the citizen. We will legislate on the issue of Cabinet confidentiality.
In reply to Teachta Martin, the Taoiseach indicated that the real intention was not to remove the Cabinet confidentiality aspect of the Constitution when it is clear from the preceding paragraphs that was the intention. The Government indicated it would overhaul the way politics and the Government would work because of the failures of the past and so forth.
The banking inquiry is under way and there are good bits in it. For example, documents which Ministers relied on come under the compellability umbrella and are not subject to Cabinet confidentiality. We have seen individuals questioned on decisions, which is to be welcomed. Some of the information, particularly around the 2008 meeting during which the crucial decision on the banking guarantee was made, is off limits because of Cabinet confidentiality. The citizens of this State who are saddled with a debt they did not incur are potentially being denied important information. That is one of the reasons the Government had this in the programme for Government.
If this was at the behest of the Labour Party, one might argue it was very naïve. Who knows? It rolled over on all the other commitments it made. The Taoiseach indicated this arose from good intentions, and the road to hell, as the Taoiseach knows, is paved with good intentions. I can see this only as a "Pat Rabbitte promise".
It is not a serious commitment in the programme for Government. Will the Taoiseach explain to the Dáil what exactly is the purpose of commitments in the programme for Government, including an unambiguous commitment to legislate on the issue of Cabinet confidentiality, when he can come to the House some time later and simply say he has no plans to legislate on this matter?
Deputy Adams spoke about clarity. If the intention was to remove the constitutional provision on Cabinet confidentiality, the insertion in the programme for Government would have said that the Government would hold a referendum on the abolition of the article concerned.
The Taoiseach gave a commitment on the voting age and on presidential elections.
When the discussions were taking place on putting together the Government and on its programme, one of the issues was legislating for Cabinet confidentiality. As the Deputy is aware, it is provided for in Article 28.4.3° of the Constitution. The Constitution is the highest legal edifice in this country, and this is already in it. As I said to Deputy Martin, the Government is not proceeding with that particular element of the programme for Government.
Deputy Adams made a comment about a particular Deputy. The programme for Government was an agreed position on a range of areas between the two parties. I do not agree with the Deputy that this was the work of any one particular Deputy, so he might withdraw his reference to Deputy Rabbitte when he replies next.
It would be excusable if it was the work of one Deputy, but it is worrying that is the work of more than one.
The Deputy mentioned the banking inquiry. The issues being addressed by the inquiry are of great importance to the public, and the Department of the Taoiseach will co-operate fully with it. I can assure the Deputy that the Department intends to provide the committee with as much information as is lawfully permitted and with as few redactions as possible. In responding to requests from the banking inquiry, my Department must have regard to the law. Cabinet confidentiality, as the Deputy is now aware, is a fundamental principle of our system of government, and Article 28.4.3° provides for that, except in very limited circumstances, which do not include the banking inquiry legislation. It is likely that some records may have to be withheld or adapted in order to ensure that the constitutional provisions regarding Cabinet confidentiality are adhered to.
The Department of the Taoiseach will liaise very closely with the Office of the Attorney General regarding any requests that come from the banking inquiry committee with a view to ensuring that as much transparency as is possible is provided. Therefore, it is far too early to draw any conclusions as to whether provisions on Cabinet confidentiality will be a serious impediment to the work of the inquiry. Let me assure the Deputy that the Department of the Taoiseach will be as open as possible to any requests from the banking inquiry.
The Taoiseach has enlightened us on an entirely new departure in Irish politics. He has now cast establishment party leaders - Taoiseach and Ministers - as gifted artists who shower embellishments on their citizenry instead of a solid plan as to what they will do to try to improve the circumstances of the people and the country. Can the Taoiseach share with us what other embellishments are contained in this very weighty document? Since he has shown himself, along with others, to be such a gifted artist and embellisher, we can assume that there are quite a lot of embellishments in this document, but he might point them out to us now so that we do not waste our time trying to call him to account any more for what is to be implemented under it.
We used to take for granted that the political party programmes of the establishment in the election phase were largely an embellishment, but in terms of what a government or the parties going into government put together, we used to have some hope that there would be some reality to it. This impinges on the banking inquiry. The Taoiseach's programme for Government - perhaps he will tell me this is also an embellishment - states that the Government is too centralised and unaccountable. It further states that the failures of the political system were a key contributor to the financial crisis, that the system must now learn those lessons urgently and that the Government would legislate on Cabinet confidentiality. There was a clear logic in this.
The Taoiseach set up a banking inquiry, although, of course, too late. The legislation totally circumscribes its membership. The only benefit is that people who were central to the blowing up of the bubble pre-crash can be called in and questioned. However, the Cabinet meeting around the bank guarantee, for example, is absolutely critical. We do not know yet what answers we will be given when the people who were central actors in that are called before the committee and questioned. How long will that confidentiality cover? It was a night of long phone calls, was it not? The extent of those discussions will obviously be very central to what people want to find out through the banking inquiry. I am afraid, in light of what the Taoiseach said, that he will point blank refuse to have any change of Cabinet confidentiality. This writes the whole thing off as a pretty useless embellishment.
The Constitution did not always have an explicit provision on Cabinet confidentiality. That was provided for in 1997 following a referendum. It was the Seventeenth Amendment of the Constitution. It was published on 1 May 1997, following the general election, restored to the Order Paper by the incoming Government on 10 September 1997 and, subsequently, enacted on 14 November of the same year. The relevant Article of the Constitution, Article 28.4.3°, states:
The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter -
i. in the interests of the administration of justice by a Court, or
ii. by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or by a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to the public importance.
It took quite a long time to get the banking inquiry set up. Deputy Higgins said it was too late, but I do not agree. It is an important issue in respect of the people of the country-----
Why did the Taoiseach not set it up in the first year?
As I said, in so far as the banking inquiry committee is concerned, my Department will be as open and transparent as it can be in accordance with the law. That means a small number of documents may be withheld or redacted. Obviously, the Department will liaise with the committee in respect of the requests it makes.
I do not know what information the Deputy has about the bank guarantee that he knows it was a night of long phone calls. Obviously, he will have an opportunity to give his information about that in due course.
It is not a case of showering the citizenship with embellishments.
It is not a case of that at all. This was an agreed intention in respect of the programme for Government, and it is not being followed through in terms of legislating for confidentiality. It is already in the Constitution and I am happy that, with those two provisos, it is a very good reason, as endorsed by the people in 1997.
That is not correct. Cabinet confidentiality was in place long before 1997. What happened in 1997, and I stand corrected, was that there was an amendment to facilitate the breaching of Cabinet confidentiality in circumstances of a tribunal of inquiry going to a High Court in matters of public interest and getting access to Cabinet documentation. If I am not mistaken that was in regard to the tribunals of inquiry. The Taoiseach is incorrect in saying that it is something that just came along in 1997. That speaks to the error in setting up the banking inquiry within this House because the Taoiseach took away that facilitation. If he had gone a tribunal of inquiry or a Leveson-type inquiry route, and there was legislation published amending the Tribunals of Inquiry (Evidence) Act 1921, the 2005 Act, he would have retained that facility for a banking inquiry to go to the High Court to get permission to breach Cabinet confidentiality, get access to the Cabinet memorandums and allow former Ministers to speak at an inquiry without being fettered by the rules of Cabinet confidentiality, which all the Cabinet I have met would be more than happy to do. In fact, it would add value to such an inquiry. The fact that that is not now available is a limiting factor in getting at the full truth, and I can never understand why the Government decided to go down that particular route.
I do not know why the Taoiseach put in that we will legislate on the issue of Cabinet confidentiality because prior to his Government coming into power most Opposition parties had been saying for ten years that they wanted to relax Cabinet confidentiality and create situations where people should be able to find out what happened in Cabinet on certain occasions. That is why the referendum on the 1997 constitutional amendment took place. The Taoiseach has created an impression that it was creating Cabinet confidentiality for the first time.
I would also make the point to the Taoiseach that there has been very little discussion on the Central Bank (Amendment) Bill that will come before us on Thursday. The Taoiseach must have known about this before he set up the banking inquiry. That has extraordinary limitations on what the Central Bank can reveal or what the members of the inquiry team can get from the Central Bank in terms of documentation because of European Union directives. One of the institutions that is central to any investigation will be extremely limited now in terms of the documentation that could be accessed by the committee of inquiry. There is a question mark in terms of 60% of the documents. Even if it accesses those documents it will not be able to name corporates or individuals. It can only deal with the material from the documents in aggregate, which is a phrase used by the parliamentary legal adviser to both the inquiry team and the Committee on Procedure and Privileges.
This is a very serious issue for the operations of the inquiry but no one has focused on it. The Government produced it last week to the Committee on Procedure and Privileges and it was explained to our Whip that there are huge restrictions in terms of what can be revealed from the Central Bank, and huge limitations to the powers of the inquiry team members in terms of the questions they can ask, how they can ask the questions and the documentation they can access. Apparently, they will all have to go to a central storage facility. They can only access them without getting copies of them, and they will have to pluck bits and pieces from them. It is very unsatisfactory from what I have heard so far and the least the Taoiseach could do is to undertake for someone from the Oireachtas to make a comprehensive presentation on that issue to the Members of the Oireachtas before we consider the Bill on Thursday, because along with that there will be an amendment to Standing Orders to the effect that members of the banking inquiry - Deputies and Senators - could be subject to sanctions if they treat the material wrongly or mention either corporate names or individuals. That is my understanding. That is how it has been explained to us by our Whip. It was explained to him that there is a proposal from the Government side to amend Standing Orders to penalise any members of the inquiry team into the future if they treat that material wrongly or contravene the legal restrictions that will be on them.
In the context of the issue of Cabinet confidentiality, it appears the way that inquiry was set up was to reinforce Cabinet confidentiality and not relax it or facilitate Members who would love to be of a view that, for example, the memorandums at the time and the memorandums of the meeting the following morning would be revealed, and also that all legal advice given to the Government at the time would be revealed, and other such advice. My understanding is that much of that will not be made available to the inquiry team, and that is potentially very undermining of its work.
That is a statement the Deputy has made. My information is that the Constitution did not always have an explicit provision on Cabinet confidentiality-----
It did.
-----and that that was inserted in 1997 following a referendum.
In the two cases mentioned here where there is the interest of administration of justice by order of a court or where, in terms of an inquiry or a tribunal, there is an overriding public interest, the issues relevant to Cabinet discussions can be disclosed in those situations as contained in Article 28.4.3o.
Deputy Martin is well aware of the sensitivity in terms of the triggering of the holding of an inquiry into the banking situation. It is not being directed by the Cabinet but is the setting up of a specific committee to deal with the CPP in the setting up of its terms of reference and the circumstances in which questions can be raised, the nature of those questions and the material to be provided, and how that should be dealt with. Clearly, the members of the committee and of the inquiry into the banking matter operate on their own without direction from either Government or from individual parties. There is a very clear position for them to be able to do their duty and carry out their responsibilities in respect of the banking inquiry.
But we are being asked to pass the Central Bank (Amendment) Bill this week.
If the Deputy is inquiring about the Central Bank (Amendment) Bill and looking for a presentation on that, we can provide that in respect of the detail of the question he is asking.
The entire House should get a presentation because the House passed the terms of reference-----
It did.
-----for setting up the banking inquiry. It is reasonable to say that at that stage people should have been made aware-----
The members who serve on the inquiry-----
-----of the limitations on what could come from the Central Bank. I do not think anyone is aware of the extraordinary limitations now in place, and that will be in place. All I am asking is that a comprehensive presentation would be made to all Members of the House, including legal advice and everything else because every Member of the House voted. That is only reasonable because they did not get that information at the time.
They are used to voting with their eyes closed.
I appreciate the-----
I call Deputy Adams and Deputy Higgins to ask a brief question. We are not making much progress on this question.
I used the term "a Pat Rabbitte promise" in my earlier question to the Taoiseach and he asked me to withdraw the name of an Teachta Rabbitte. I used that term to describe this commitment in the programme for Government because, famously, when an Teachta Rabbitte, who was then a Minister, was asked about all the promises the Government had made and then broke, he said that that is the type of thing one says during an election campaign. The use of the term "a Pat Rabbitte promise" is absolutely appropriate in terms of describing the promise to legislate on the issue of Cabinet confidentiality and the Taoiseach's assertion today that he has no plans to legislate on Cabinet confidentiality. I will not withdraw the use of an Teachta Rabbitte's name.
It is not every day that a Taoiseach would come into this House and vindicate the view of those who think that everybody in Government is a shower of - it is a word that begins with a P and finishes with an S - artists, even though the Taoiseach used the word "embellishments".
Philosophers.
There are very few of those.
This is an important question.
Does the Taoiseach not agree that Cabinet confidentiality should come very much behind the need and the right of citizens to know what happened in Cabinet at crucial times, for example around the time of the bank guarantee?
That is allowed for in the constitutional amendment that was inserted back in 1997, which refers to-----
Yes, but not by the Oireachtas.
-----an inquiry that has been approved by the Houses of the Oireachtas or by a Minister to deal with matters "of an overriding public interest".
No, it has to be a tribunal.
Deputy Adams took a circuitous route in failing to withdraw his remark. He mentioned a promise made by the former Minister, Deputy Rabbitte. De Valera promised a long time ago to drain the Shannon, and it did not happen either. The point I am making is that this matter was discussed during the formation of a programme for Government after the general election. Deputy Adams referred to what the former Minister, Deputy Rabbitte, said about "what you do at election time", but this was after the election when the people sat down to put this together.
It is all a matter of time. The Taoiseach's timing is great.
I have said to Deputy Martin that we do not intend to proceed ahead with this element of the programme for Government by legislating for Cabinet confidentiality. It is already in there.