Obsession with secrecy still stalks the corridors of power

Short-term political considerations involving the Moriarty tribunal, due to investigate payments to Charles Haughey and Michael…

Short-term political considerations involving the Moriarty tribunal, due to investigate payments to Charles Haughey and Michael Lowry, are driving the referendum campaign on Cabinet confidentiality.

A flawed and limited referendum has been proposed to facilitate the work of that tribunal. The electorate has been invited to support change on the basis that half a loaf is better than no bread. It's no way to treat a Constitution. Especially when the Government has not promised to revisit the issue when the EU Amsterdam Treaty becomes the subject of a referendum next spring.

The public's desire for a more open system of government is being submerged by the demands of bureaucracy and the determination of the legal system. In spite of this week's Irish Times/MRBI opinion poll, which showed that 72 per cent of the electorate favours access to all relevant Cabinet information, an obsession with secrecy still stalks the corridors of power.

Official secrecy has always coexisted uneasily with democracy. But it became a problem in 1988 when the then attorney general, Harry Whelehan, took it upon himself to block an attempt by Mr Justice Liam Hamilton to inquire into Fianna Fail Cabinet decisions involving export credit insurance to Iraq.

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The beef tribunal had been established by the Fianna Fail-Progressive Democrats coalition on the insistence of the smaller party. And the attorney general's initiative was not appreciated by their then leader, Des O'Malley.

The appeal in favour of absolute Cabinet confidentiality was rejected by Mr Justice O'Hanlon in the High Court on the grounds that such a ruling would allow members of corrupt administrations to enrich themselves at the expense of the public purse. But an appeal to the Supreme Court brought a 3-2 decision in favour of secrecy and the government in 1992. Mr Justice Hamilton backed off.

The Labour Party promised to do something about it in successive governments. But there was delay and foot-dragging. In 1996 the Constitutional Review Group found "strong grounds for extreme caution in any approach to the relaxation of Cabinet confidentiality". It quoted the damage that might be done to the doctrine of collective Cabinet responsibility and worried that disclosures would inhibit discussion at Cabinet and the effectiveness of government.

By last May, after exhaustive discussions, 24 different drafts of a Referendum Bill had been produced and the legal argument in favour of caution had won out against the political argument of transparency. A weak-kneed Bill was given a public airing in response to a long-standing political promise. There was no chance of it becoming law before the general election.

Following publication of the McCracken Report in the late summer, Dick Spring called on the new Government to introduce constitutional change which would allow for the disclosure of Cabinet discussions.

The Labour Party leader was pushing an unbolted door. In a pre-election rush to probity, Bertie Ahern had promised "to consider holding a referendum on the issue". More importantly, Mary Harney had promised to lift the ban on absolute confidentiality "where disclosure was clearly in the public interest".

Following a review of the files, it was agreed by the new Government to reinstate the legislation which had been published by the Fine Gael-Labour Party-Democratic Left government.

The Referendum Bill was passed in a single day last month, when the Dail met to debate the findings of the McCracken tribunal and to establish the new Moriarty tribunal. It was agreed that money would be saved by holding the referendum on the same day as the presidential election, on October 30th.

But all was not sweetness and light. The Labour Party and Democratic Left had had second thoughts. They split with Fine Gael and criticised the proposed constitutional referendum as being far too restrictive. On the Government benches, Mr O'Malley of the Progressive Democrats rounded on the measure as being ridiculous, unreal and short-sighted.

An amendment put forward by Brendan Howlin of the Labour Party, which would change the terms of the Bill and allow the Oireachtas to legislate, in limited circumstances, for the relaxation of Cabinet confidentiality, was supported by Liz McManus and Mr O'Malley.

During the course of that debate, Bertie Ahern declared his personal preference was "to move along the route proposed by Mr Howlin". But, the Taoiseach said, he was obliged "to give the opinion of the Government which is that this issue should be moved forward quickly and a referendum held as soon as possible".

Mr O'Malley spoke of "the obsession with secrecy in this country" and identified public servants, politicians and the courts as the chief supporters of that culture. Letting in some light was, he said, regarded as the wrong approach.

Only Jim O'Keeffe of Fine Gael and Michael O'Kennedy of Fianna Fail argued in favour of minimum interference with the Supreme Court ruling, which found in favour of "absolute Cabinet confidentiality".

Yesterday two former ministers, Gemma Hussey and Mr O'Malley, indicated their intention to vote No in the forthcoming referendum. And the former chairman of the Progressive Democrats, Michael McDowell, began an independent No vote campaign.

But the Government and opposition parties stood firm. They wanted half-a-loaf. And they wanted it now, in time for the Moriarty tribunal.

The public and the Constitution deserve better than that. If the Taoiseach's preference is, as he said in the Dail debate, to move along the more liberal, legislative route, he would do the electorate a favour by promising to revisit this contentious issue next year, at the time of the Amsterdam referendum.