Mary Harney
Ceist:3 Miss Harney asked the Taoiseach whether it is proposed to hold a referendum on the issue of Cabinet confidentiality in 1996. [16479/96]
Ceisteanna — Questions. Oral Answers. - Cabinet Confidentiality.
Bertie Ahern
Ceist:4 Mr. B. Ahern asked the Taoiseach whether it is intended to hold constitutional referenda on cabinet confidentiality. [17279/96]
I propose to take Questions Nos. 3 and 4 together.
Drafting of the necessary legislation on Cabinet confidentiality has identified constitutional, legal and administrative issues which require further considerations. These include (a) how the doctrine of collective responsibility, from which the whole issue of Cabinet confidentiality derives, enshrined in Article 28.4.2º of the Constitution is to be preserved, (b) the manner in which the proposed exception to the confidentiality rule is to be incorporated into the Constitution in a situation where the principle itself is implied rather than stated, (c) whether the test should comprise overriding public interest as referred to in the Report of the Constitution Review Group rather than a matter of grave public importance, (d) the role, if any, to be given to the courts in testing overriding public interest and the effect this would have on the operation of Government and as between the executive, legislative and judicial institutions of the State, (e) the manner in which evidence of statements made at Government meetings is to be provided to a tribunal or committee of inquiry in a situation where, as a matter of principle, discussions are not written down, decisions only being recorded and communicated to those directly concerned and (f) the application of whatever rule or principle is agreed to Government Committees, whose very existence has until recently been regarded entirely as a matter of Government exercising their executive power under the Constitution in ways that to them seem best and for which they are answerable to Dáil Éireann.
As these matters are of a seriousness to warrant further consideration, it is not proposed to hold a referendum on the Cabinet confidentiality issue this year.
The issues at state in the bail referendum are equally complex, but following the murder of a journalist we suddenly received a commitment. The Government wants to run away from this issue. What people want is a reversal of the decision made during the beef tribunal. They were happy with what they believed the law was until then.
Does the Taoiseach accept that three of the six judges who examined this issue, once in the High Court and two in the Supreme Court, felt there was no absolute doctrine of Cabinet confidentiality? Did the Taoiseach consider a previous proposal of mine, which was to introduce legislation defining the limits of Cabinet confidentiality which could be tested by the new Supreme Court. When I proposed this, the Taoiseach thought it was a good idea and said he would consider it. Was it considered?
I considered the matter as a result of the Deputy's representations. I concluded it was not a feasible approach because the Government may not promote legislation which is unconstitutional. Any legislation altering the decision of the Supreme Court in the case the Deputy referred to, which proclaimed the doctrine of absolute Cabinet confidentiality, would be unconstitutional and could not be promoted by the Government. That is why the Deputy's suggestion, although ingenious and constructive, is not one I could proceed with. Unless the matter is determined again by the Supreme Court in a separate case and in a different way, the only manner in which it can be dealt with, if at all, is by means of constitutional amendment.
I was anxious not to see this matter put on the long finger. This is the reason I did not avail of the original option of referring the matter to the Law Reform Commission. I decided the Government should take this matter on board and draft some proposals. It was in the process of drafting these proposals that the difficulties I have outlined became evident. Furthermore, the Whitaker committee, which is reviewing the Constitution, specifically advised caution in changing the Constitution in regard to this matter. It also recommended that if there is to be a lifting of the doctrine of absolute confidentiality of Cabinet discussions the test applied should be different from the one upon which the Government was working. All parties were represented on the Whitaker committee, which recommended that the overriding public interest should be the test. The basis upon which the Government had been working was that it would have to be a matter of grave public importance. These phrases may sound as if they mean the same thing but they do not. That is why the matter has to be considered further. We are not ready to produce any proposals we can stand over before the end of this year.
The programme for Government gave a commitment for the holding, at the earliest opportunity, of a referendum on relaxing Cabinet confidentiality where the public interest demands it. Does the Taoiseach agree it still has to happen? Is he saying it is deferred because it is complex? What is his precise position?
Following the Supreme Court decision, the citizen's right of access to Government papers and documents is subject to question. This was discussed in the constitutional review report, which gave the various options about how this matter should be dealt with. Is there a case for Cabinet confidentiality? This must be clarified as a matter of urgency. I do not understand how a commitment given in the programme for Government is being ignored. This is the second question relating to the matter today. Where does the review on an issue which has been through the Supreme Court stand?
I am not saying for certain that we will find an appropriate form of amendment we can stand over. A decision has not been reached. We will not be able to put forward a proposal this year because of a number of specific problems I have identified which deserve further consideration. The most important of them is probably the one of collective responsibility. The Constitution requires that the Government act on the basis of collective responsibility in all its discussions. It is important to recognise that if the idea of Cabinet confidentiality is departed from, collective responsibility may go out the door also. If individual Members find themselves in court testifying against one another as to the content of a particular discussion, they may not have acted collectively but individually in terms of the way in which they contributed in Cabinet discussions.
There is concern about the impact of a breach or lifting of Cabinet confidentiality on the question of collective responsibility. We may be moving towards a situation where Ministers are individually rather than collectively responsible. This would be a major change in constitutional practices maintained in this country for a long time and may not be one that one would wish to make. It is a matter which requires serious and fundamental discussion and debate. I hope there will be reasonable learned and considered debate on these issues on the basis of my listing the Government's concerns. It may be useful that I have put the issues on the record in a manner which enables them to be dissected, criticised or commented upon before a decision is taken.
I note the Taoiseach in an earlier reply on this issue told us he took the admonitions of the Constitution into account in coming to his interim conclusions. Is he still of the same opinion as he was in 1987 and 1988 when he disputed Gemma Hussey's right to write her memories, in which the Taoiseach had a place?
As the Deputy is aware, I was not Taoiseach at the time. Therefore, I am not accountable as Taoiseach for anything I might have done in the happy, heady, irresponsible days of 1987 and 1988 when I did not have a care in the world.
That is a new policy.
As the Deputy knows, I am now accountable for many things, without engaging myself in accountability for things that happened before. This heavy burden was laid on my shoulders.
The Taoiseach was worried about how he would be portrayed.
Wait for the movie.
However, if I recollect correctly. Deputy O'Rourke commented freely on the matter at the time and reviewed Mrs. Hussery's book in a not altogether kind way. I do not know why. I am surprised the Deputy should do such a thing.
Does the Taoiseach still have a taste for fish and chips at 2 o'clock in the morning?
It was gin and chips.
It is important that the confidentiality of Cabinet discussions should be preserved and any change considered at any stage would be only in the most grave and exceptional circumstances. The difficulty is that even if it is done in thise cases, it may have unintended adverse effects on the quality of Cabinet discussion, along the lines I have referred to in my reply. It is a matter that can be discussed further.
The Taoiseach has certainly changed his mind on this matter. Is he suggesting that even a corrupt Government is entitled to collective responsibility and absolute confidentiality? Surely the Taoiseach accepts this could not possibly be the case. We do not have confidentiality at the moment. During the famous committee which looked into the events of 1994, some members of the then Cabinet recalled at great length what did or did not happen. Perhaps we will have the same in the High Court in London this week. It is a selective confidentiality, which is not acceptable. I believe the Taoiseach should proceed with a referendum in this area to return to where we were prior to the Supreme Court decision in 1992.
The law was not clear prior to the Supreme Court ruling; if it had been, the court would not have come to that decision. The law was unclear prior to that point and it is now clear, perhaps in a form which is unacceptable to the Deputy and others but clear nonetheless. The option of going back to the status quo ante, as the Deputy suggests, is not open to me because there was no status quo ante which contained any degree of clarity.
As far as the issue of a corrupt Government is concerned, I would want Members of this House who are part of the Government to ensure that the Government would not behave in such a fashion. Where members of a Government feel that any transaction being engaged in is wrong, it is open to them to take the logical step of distancing themselves from it and bringing the matter to a head in the House.
As to whether there should be a lifting of Cabinet confidentiality, that is not a matter on which I have come to a final view. As I have indicated in the House there are a number of problems, none of which was challenged by the Deputy in her many questions. The problems are real and as someone interested in the process of government the Deputy should address herself to those concerns in a reasonable and serious way rather than make the slightly tendentious and unkind statements she has.
On 16 November 1994 the Taoiseach said the new Government and every office holder must be truly accountable for all its actions. The programme for Government used the phrase "openness, transparency and accountability". In regard to three issues alone — lack of Dáil reform, the refusal to examine adequately the splitting of the office of the Attorney General and Cabinet confidentiality — the Taoiseach has done a U-turn on the promises he made about this Government working behind a pane of glass.
He was not yet Taoiseach when he promised that.
A glass roundabout.
Countrary to some of the criticisms voiced here, the Dáil reform proposals which are currently in operation allow for all legislation to be scrutinised line by line, something which never happened before.
Even the Taoiseach's backbenchers do not believe him.
Before the committee system was introduced, I recall legislation being passed by the House when only two or three sections had been debated and the remaining provisions not discussed.
Is the Taoiseach talking about the committees? No one goes to them.
Broken promises.
As a result of the committee system, every section of every Bill is debated and is capable of being amended.
That shows how far the Taoiseach is out of touch with the real world.
Please, Deputies.
As far as the issue of splitting the office of the Attorney General is concerned, I have outlined my reasons for reservations about the matter.
A U-turn.
The Taoiseach had no reservations when——
I do not believe there is a full-time job to be done in regard to the separate role of public interest defender which the Attorney General has.
The time for dealing with Questions to the Taoiseach is exhausted.
However, that is not a matter on which a final decision has been taken, as I indicated. In regard to the third point concerning Cabinet confidentiality, I have outlined in the House the reasons——
The reason the Taoiseach changed his mind.
U-turns on all three issues.
The Taoiseach is for turning.
——I am not in a position to put forward any proposals on that matter this year. I have not said that no proposal will be entertained or put forward at any time but I advised the Deputy to examine — not in the hectoring fashion in which he is now interrupting those in possession, but in a serious way — the considerations I have put forward because if he does he will find they have substance.
The Taoiseach had no problem putting it on paper but he has problems putting it into practice. He is fooling the people.
I regard to say there are new procedures to day and even the Chair has slipped up slightly in respect of the time factor. The time for dealing with questions to the Taoiseach is quite exhausted and——
So is the Taoiseach.
——we must move to Priority Questions to the Minister for Justice.
The Opposition does not look too bright either.
I would take on Deputy Burke in a marathon any day.
God forbid.