Dáil Éireann díospóireacht -
Wednesday, 22 Oct 1997

Vol. 482 No. 1

Ceisteanna—Questions. - Referendum Information.

Dick Spring

Ceist:

1 Mr. Spring asked the Taoiseach the steps, if any, taken by the Government to ensure that an informed public debate takes place on the issue to be decided by the people in the referendum on 30 October 1997; if he has satisfied himself as to the adequacy of those arrangements; the public or publicity funded bodies, if any, which are involved in the dissemination of information in relation to the referendum; the public funds or assistance, if any, which were or are to be offered or given to private organisations in connection with the dissemination of such information; whether the provision of such information is being organised and funded on an impartial basis; and if he will make a statement on the matter. [17259/97]

The Taoiseach

As in the case of the referenda on divorce and bail, an ad hoc commission comprising the Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad has been established at the invitation of the Minister for the Environment and Local Government to supervise the production and publication of an information statement setting out concisely the case for and against the proposed constitutional amendment. Advertisements were placed in the media at the end of September 1997 inviting all interested parties to forward submissions to the ad hoc commission with a view to their being included in presentations to be prepared. The Bar Council nominated two members, both senior counsel, to prepare statements setting out the arguments for and against the proposal. Each counsel was assigned to produce a statement of approximately 700 words, these statements to form the basis of an information campaign.

The statements will be published this week for the information of voters. All provincial press and the major free sheets will carry the notices in their next issue on or after 20 October. The national daily and evening newspapers will carry the feature tomorrow. All national papers will carry the notices on Sunday, 26 October. In these notices, the text of the proposed amendment and the two prepared statements will be printed in full. They will appear as full page notices in broadsheets and as a two-page feature in tabloids.

The cost of this information is yet to be determined but it is estimated to be in the region of £400,000 and will be borne in the Vote for my Department. It is not intended to give funds to any group or to underwrite any other promotion.

I am satisfied these measures meet the standards of fairness and impartiality required in the use of public funds. The outlay is sufficient to ensure an informed public understanding of the issue is achieved by polling day on 30 October 1997.

A great deal of care and consideration was invested in preparing the proposal which is being submitted to the people. That consideration sought to establish a balance between confidentiality and disclosure in the public interest, and a satisfactory balance was achieved. I have expressed my appreciation of the excellent work of the former Attorney General in this complex issue. I have indicated that I was not sufficiently confident of such scope to improve the wording as would justify the delay for further review. The Government, therefore, commends the constitutional amendment to the people and asks for their endorsement of it in the forthcoming referendum.

Mr. Spring

I welcome the major effort to disseminate information between now and referendum day. That is supported by everybody. I am concerned, however, the public will not understand the issues involved on polling day. There has been no debate apart from some comments made in this House. If Deputy O'Malley from the Progressive Democrats had not raised the matter there would have been less public comment on it. Will the Taoiseach consider other measures to ensure a level of understanding by the voters generally, which is warranted? We are dealing with a major proposal to change the Constitution and there is an insufficient level of understanding among the public.

The Taoiseach

From the time the Bill was published on 1 May up to the debate here in midSeptember there was not a single word about the matter in the national or provincial press, or elsewhere in the political domain. During the past four weeks the issue was discussed on a number of programmes on the national media, and all parties contributed to those debates. My party put forward a number of speakers to take part in debates in universities and we will continue to do that. From the point of view of the Government and the political parties, which, under the new rules arising from the McKenna and Hanafin cases, are not as restricted in promoting such matters, we will try to promote the debate.

I agree with Deputy Spring in that from most comments made, people still believe there are archives or records of detailed minutes of Cabinet meetings. When I introduced the referendum legislation in the Dáil and Seanad I went to great lengths to explain that since the Ambiorix case in 1991 memoranda issued with arguments for and against an issue may be brought into the public domain. In addition, Cabinet decisions may be made public. All records are kept in compliance with the National Archives Act, 1986.

The issue dealt with by the former and the present Attorneys General relates to discussions, and there is no record of discussions except in rare cases. The Secretary General of the Government may outline on the pink slips some detail to assist the Government in formulating a decision, but Sir Dermot Nally, who was in that position for some time, put forward cases on this matter at the request of the previous Government to show that rarely are records of discussions kept. While those against the amendment say that we should put discussions of the Government in the public domain, there is no record of those discussions. Under the 1937 Constitution, the principle that applies is that of collective Cabinet responsibility and, therefore, there should be no need for people to say that any one person made a decision. The public wonder why we will not put forward the minute book, but there is no minute book. That is the issue, in these remaining days, on which we must convince the electorate.

A great amount of useful work was carried out by Mr. Gleeson on this matter, which was recorded and in time will be available in the public domain. I decided to move on this issue without further delay in view of the McCracken tribunal and the Moriarty and planning tribunals which may require that some of these issues should be in the public domain. For that reason it would be unwise to delay the referendum. Even if it was delayed further, I am not sure the wording could be improved upon.

Mr. Spring

I accept the Taoiseach's remarks that much work was done by the previous Taoiseach, Deputy Bruton, in bringing this issue to a head. I will support the referendum as a step in the right direction. Will the Taoiseach consider issuing a joint statement by the parties, a majority of whom support the referendum — although there is a difficulty in the Progressive Democrats as Deputy O'Malley has expressed a contrary view? It might be worthwhile issuing a statement from all the party leaders so that there is a clear indication of their intentions. Since the Taoiseach referred to the pink slips and notes from Cabinet, will he clarify whether, after the referendum, there will be a change in status in terms of the notes of the Secretary General to the Cabinet?

The Taoiseach

There will be no change in the pink slips. In the 1920s the secretaries of Governments recorded more detailed minutes on the pink slips, but that position changed in the late 1920s or early 1930s. The pink sheets are now available but there are times when this may not be the case. Issues were raised about the procedures relating to the release of Cabinet documents — which would include some of these documents — to the National Archives. This matter was discussed after some members of the National Archives asked for clarification.

With your permission, a Cheann Comhairle, I put that decision, to which there were four aspects, on the record: (a) that the archives which are already open to the public through the National Archives which may disclose references to discussions at Government can no longer be considered to attract confidentiality and should continue to be made available to the public; (b) the officers of Departments who were authorised under section 8(4) of the National Archives Act, 1986, to withhold documents under the 30 year rule should, as heretofore, continue to certify and release Cabinet documents subject to the normal provisions of the Act relating to security and only in so far as any such document purports to record references to discussions as distinct from decisions, conclusions or orientations at meetings of the Government, the authorising officer should consult the secretary general of the Government before deciding on the release of such a document; (c) the authorised officer of the Department of the Taoiseach under section 8(4) of the National Archives Act, 1986, for the purpose of consenting to a certificate withholding Cabinet documents which purport to record references to discussions at meetings of the Government should be the Secretary General of the Government and (d) the Secretary General of the Government should review at least once in every subsequent period of five years any Department records retained under section 8(4) of the National Archives Act, 1986, in so far as there may be references to discussions of meetings of the Government. The reason for those decisions was to ensure none of the present practices which would affect the national archives under the 1986 Act would be affected.

Mr. J. Bruton

Will the Taoiseach agree it is not true that the proposal the House has agreed would have the effect of cementing in place an absolute confidentiality rule but rather is one which provides a specific mechanism for relaxing an absolute confidentiality rule where the interests of justice require it and far from being a closing of the door it is an opening of the door but with appropriate safeguards? Will the Taoiseach agree it is not true that the proposal we are putting before the people is turning a valuable political convention into a dangerous constitutional ban, rather it is the case that there is an absolute confidentiality rule and an absolute ban on the basis of a Supreme Court interpretation of the existing Constitution in regard to collective responsibility and that the absolute ban exists and is being relaxed? It is not the case that this proposal is tightening up the position, rather it is relaxing it in a way that is in the public interest in the view of the majority of Members.

The Taoiseach

I fully agree with both those statements. It should be recalled that in 1992 a majority in the Supreme Court upheld the principle of absolute confidentiality of Government discussions. The judgment did not relate to Government documents, in respect of which the courts had established the Ambiorex case in 1991. The intention behind the amendment is that the principle of Cabinet confidentiality which the Supreme Court held was implicit in the doctrine of collective responsibility of membership of the Government enshrined in the Constitution is being made explicit and provision is being made for disclosure. The two instances are where the High Court considers that such disclosure is in the interests of the administration of justice by a court or the overriding public interest prevails and a tribunal of inquiry, appointed on the authority of the Houses of the Oireachtas, wishes to investigate a matter of public importance. The two exceptions, which Deputy Bruton is highlighting, being provided for in the proposed amendment improve the position. I have not yet heard an argument that can disprove that fact. There are two important exceptions. I have no doubt in the course of time they will prove their merit. It is desirable that the amendment be made now when there are at least two tribunals in progress and one concluding. In its examination of the Whitaker report on the Constitution, the Constitution Review Group which urged caution about any fundamental change on Cabinet confidentiality or how it should be dealt with, signalled the High Court route. That is precisely what this amendment does.

Mr. J. Bruton

Will the Taoiseach agree there is considerable merit in the suggestion made by Deputy Spring of a joint statement by party leaders on this matter? Will he also agree there is common sense in having a normal rule of absolute confidentiality in the sense that one will not be able to get a Cabinet working as a team if people feel they must go to Cabinet and say things simply for the record, in order to protect their position subsequently. If we want the Government to work as a team we should be in a position where it can simply deal with the issue at hand without the necessity, because of the possibility of subsequent disclosure, to put all sorts of things on the record. If that were to be the approach Cabinet meetings would take five to ten times as long and that would not be in the interests of good Government. Would he agree with that proposition from the point of view of his experience as Taoiseach and as Minister? Certainly that has been my experience as both.

The Taoiseach

I do. I have been lucky, with many others in the House, but not the majority, to have been at the Cabinet table for on or off 15 years. The only point on which I disagree with Deputy Bruton is not that Cabinet meetings would take hours but that they would not reach decisions. People would continue to put their positions but would not come to conclusions because they would then have to stand by positions which would be in the public domain. Those who are opposed to this amendment argue there is some secrecy because the discussions never reach the public domain and nobody really knows the arguments. The fact is the arguments do reach the public domain because Government memoranda are all about the arguments. For example, if the Minister for Tourism, Sport and Recreation puts forward a case about some sporting matter it is circulated to all Departments where everyone puts arguments for or against. The Government memorandum makes the decision from the historical point of view and the historical analysis. In this and in other countries when people are writing their memoirs or an historical account on issues which took place during the course of their life in Cabinet they always relate to Government memoranda and are free to do so. In relation to the argument that one could never get anybody to record what happened when people walked out of Government, I am unlucky enough to have been around when various people walked out of Governments and parties and I have seen Ministers resign. Never once has any of them had a difficulty in explaining to the nation and the world precisely why they did so. From my experience all these arguments are non arguments and certainly do not form a part of political life in this country.

Mr. Sargent

It is regrettable we are facing into the last week before making a decision on Cabinet confidentiality. Has the reason for this to do with the need for the tribunals to be effective? If this referendum is carried, will it affect the reporting of Cabinet discussions on the commissioning of an offence to the DPP or the Garda? Will it restrict Ministers from explaining why they resigned if their resignation relates to Cabinet discussions? Will it restrict access by historians or researchers to details of Cabinet meetings? Given the complexity of this issue, has consideration been given to installing a telephone information line in, say, the Attorney General's Office? Has the Taoiseach discussed with the RTÉ steering committee the possibility of broadcasting a debate on the referendum so that it is not overshadowed by the presidential election?

The Taoiseach

I thank Deputies Spring and Bruton for aligning with the statement and Deputy Sargent appears to be doing likewise. It would be helpful if we could make a clear joint statement on this matter.

There will be no restriction on Ministers who resign. The only thing they cannot do is report what particular Ministers said at a Cabinet meeting. Differences of opinion normally relate to memoranda or departmental issues. We have had examples of this in the recent past and those concerned had no difficulty putting forward strong views on what they believed to be national issues. Some years ago I took a different line from my colleagues on a particular issue and the then Taoiseach reported what I said.

The question raised regarding the DPP presupposes that all members of Government would condone an abuse of power. That is absurd. If an abuse of power is discussed at Cabinet the matter would be referred to the Garda or other appropriate authority. The circumstances in which a Minister might feel compelled to act on his or her initiative arising from such a discussion at Cabinet are difficult to envisage. I do not envisage Cabinet engaging in a discussion on an abuse of power and no member taking issue with it.

When Cabinet meetings are over Ministers return to their offices and explain to the Secretary General or other relevant officials the principles decided at Cabinet. They have always been entitled to do that. However, they are not entitled to report what particular Ministers said at those meetings. They can only give a general outline of what was discussed at Cabinet. Therefore, none of the arguments stands up. I replied to a number of queries on this matter from Deputy Quinn yesterday. I also discussed the matter with Deputy O'Keeffe, the former chairperson of the all-party constitutional group. If necessary that group can re-examine the matter at a future date.

Some people believe the matter has not been discussed at length. That is not the case. Deputy Bruton and the Attorney General spent a great deal of time on this matter. They examined the position in countries which have a constitution and in countries which do not and this is the best way forward. Collective responsibility and the publication of memoranda and different orientations are an important part of how Government operates in a democracy. I do not know why people would want to know what particular people who are part of a collective group said at meetings.

Mr. Higgins

(Dublin West): The Taoiseach said it would be impossible for the Cabinet to agree on dubious motives. This Cabinet ensured the truth about the Ansbacher accounts did not come to light.

An Ceann Comhairle

A question, please.

Mr. Higgins

(Dublin West): Does the Taoiseach accept this referendum will prohibit votes as well as discussions at Cabinet from being revealed and that this militates against the right of citizens to openness from those they elect? Does the Taoiseach agree there is huge hypocrisy in this regard among his party and the main Opposition parties since Ministers and former Ministers leak with impunity to the media when they wish to get one side of the story across, but use an amendment such as this to ensure the entire truth is not revealed?

Mr. Spring

Save us from the lectures.

Mr. Higgins

(Dublin West): Does the Taoiseach accept that, rather than the crude straitjacket of a constitutional amendment, legislation would be the best way to resolve this issue?

An Ceann Comhairle

We have spent a long time on this question. I have allowed a broad discussion on the merits and demerits of the content of the proposal which I should not have allowed. The question relates to the dissemination of information relative to the referendum and further questions must be confined to that point.

The Taoiseach

I will restrain myself. The Deputy, who is new to the House, may not be aware that a Government cannot promote a Bill without being sure it accords with the Constitution. That would not be so in this case and, therefore, the matter could not be dealt with by way of legislation. The Deputy can table questions in the normal way on issues that do not relate to this amendment. The Minister for Finance has outlined the position regarding the Ansbacher accounts. I refute the Deputy's implication about what might take place at Cabinet. It has always been my experience that issues of concern tend to surface more from Cabinet than from hidden political organisations which may have other motives.

Mr. Sargent

I asked two questions on the matter to which the Chair asked us to refer and they were not answered. They related to a telephone information line and a debate on RTÉ so that the presidential campaign does not overshadow the amendment.

The Taoiseach

I apologise for not answering those questions. RTÉ broadcast a number of programmes last week, but if time is available more discussions would be welcome. If I were to organise a special information telephone line I am sure I would be accused of not striking the right balance.

Mr. Sargent

What about two lines?

The Taoiseach

Perhaps we could arrange for the two people who put forward the two documents to take telephone calls tomorrow. I hope the advertisements, which are costing taxpayers a good deal of money, will generate some debate. I thank the individuals nominated by the Bar Council for their work. It appears in today's provincial papers and will appear in the provincial and national papers tomorrow. I thank those who went to the trouble of making submissions in response to the advertisement. I hope they will lead to further discussion. We will try in whatever way we can to generate more discussion on this. I am grateful to the party leaders for the all-party agreement that this matter is worthy of support.