Q. What is the 17th amendment to the Constitution all about? A. Cabinet confidentiality.
Q. What's that? A. The implied right in the Constitution for the Government to conduct its business around the cabinet table in absolute privacy. At present, this right is not written in the Constitution.
Q. Where did it come from then? A. It had always been presumed that such a right existed because of Article 28.4.2 which provides for collective cabinet responsibility. The logic was that if the cabinet was bound to maintain a collective front about government decisions, it seemed to follow that the manner in which it arrived at such decisions was confidential. This amendment is being brought forward now, however, because of the way the courts have defined cabinet confidentiality in recent years.
Q. How is it defined? A. There are three relevant judgments on the issue. In the Ambiorix case in July 1991, the courts established that no government or cabinet documents were privileged from disclosure in court merely on account of their origin. Documents which the government wanted to protect on grounds of executive privilege would have to be inspected by the judge who would balance the need for secrecy against the interests of the litigant and the public in the administration of justice. But that position changed with the beef tribunal.
Q. What has the beef tribunal to do with cabinet confidentiality? A. At an early stage in the Tribunal of Inquiry into the Beef Processing Industry, the chairman, Mr Justice Liam Hamilton, sought to question a former minister, Ray Burke, about his recollections of a cabinet meeting on June 8th, 1988, when the export credit insurance scheme for beef was discussed. Counsel for the attorney general, Harry Whelehan, objected to those questions being asked on constitutional grounds. The chairman then deferred asking any questions. But he ruled that he was entitled to ask them to give Mr Whelehan the opportunity to apply to the High Court for a judicial review of the issues.
Q. What happened in the High Court? A. Mr Justice Rory O'Hanlon decided on July 10th, 1992, that an absolute ban on disclosure of Government meetings would not have due regard to the public interest and to the rights of the individual as guaranteed by the Constitution. If absolute confidentiality had been intended in contradistinction to the legal situation in so many other democratic communities, he would have expected it to be spelled out clearly in the Constitution.
The High Court judge, who is now retired, said it had not been unknown in the history of government in other countries for totally corrupt governments and for members to enrich themselves dishonestly through the public purse.
Q. Was the case appealed to the Supreme Court? A. Yes. Here we come to the definitive judgment on the matter which has led to this referendum. The Supreme Court decided, by a three-to-two majority, to uphold the attorney general's contention on the absolute confidentiality of cabinet discussions. Delivering the judgment on August 21st, 1992, the then Chief Justice, Mr Justice Thomas Finlay, said: "Confidentiality of the contents and details of discussions at meetings of the Government is a constitutional right which, in my view, goes to the fundamental machinery of Government and is, therefore, not capable of being waived by any individual member of the Government nor, in my view, are the details and contents of discussions at meetings of the Government capable of being made public, for the purpose of this inquiry, by a decision of any succeeding Government".
Q. Did this ruling affect the beef tribunal? A. Yes. The tribunal chairman noted, in his report, that the ruling created difficulties for it because documentation relating to discussions at Government had been received by the tribunal, some of which was referred to in evidence, before the judgment of the Supreme Court and the tribunal was precluded from having regard to it.
Q. What is the position on cabinet confidentiality before this referendum? A. There is an absolute obligation on ministers to maintain the confidentiality of cabinet discussions on every matter. Government decisions and Government memoranda, however, can be made public.
Q. Does it need to be amended? A. Most definitely. It is not just a politician's issue about politicians. It is a matter of major public interest and accountability. As things now stand before the referendum, the Supreme Court has imposed an absolute ban on ministers divulging any details of cabinet discussions in any case. You could have the most corrupt government with members enriching themselves, as Mr Justice O'Hanlon indicated in his ruling, with no regard to the public interest.
Q. What amendment is being proposed in next Thursday's referendum? A. The Government is proposing that a new clause should be inserted into Article 28.4.2, providing for collective cabinet responsibility. The new sub-section would formally write the rule of cabinet confidentiality into the Constitution for the first time and set out two instances where the absolute ban could be waived. The wording 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 a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public interest."
Q. What does that mean in plain English? A. It means that the Government, which accepted the wording of John Bruton's government, proposes two things: to enshrine the absolute confidentiality of cabinet discussions, which currently has the standing of one Supreme Court judgment, into the Constitution for the first time; to be qualified by only two exceptions, one being a tribunal which only politicians can establish.
Q. Who is supporting this amendment? A. The leaders of the five main parties in the Dail. The Taoiseach's office is compiling a joint statement on their behalf endorsing the amendment. Dick Spring has asked the Taoiseach to make it clear in the statement that the present amendment is an interim measure. He wants the Government to make a firm commitment to widen the exceptions to the absolute rule on confidentiality next year.
Q. Why are they supporting it? A. They believe it is necessary to enable the Moriarty tribunal to investigate properly any other sources of funding to Charles Haughey and Michael Lowry and, more particularly, to examine decisions of their Governments to see whether any favours were sought or given in return.
Q. Is there any chance of a Government commitment to a further referendum? A. Yes, if the opposition insists on it over the next few days. Mr Ahern has, so far, given only a vague commitment to have the issue considered by the Dail's constitutional review committee. It could gather dust for years.
Q. Who is against the amendment? A. There is no formal opposition lobby as there was, for example, on the abortion, divorce and Maastricht referendums. Key figures in political life, however, Garret FitzGerald and Des O'Malley, who have years of cabinet experience, and former PD TD, Michael McDowell, are very critical of the amendment. They believe the proposal is too narrow and restrictive.
Q. What are their arguments? A. The amendment, by expressly recognising cabinet confidentiality in the Constitution, copper-fastens it in an unacceptably narrow form. Several proper exceptions are prohibited, including the right of a minister to explain his reasons for resigning, the publication of political memoirs, and disclosure by a minister to civil servants for the purposes of implementing Government policies.
Q. What way should I vote? A. You are in a Catch-22 situation. The amendment is too restrictive for an accountable democracy. In normal circumstances, you should vote "No". But, if you want the Moriarty and planning tribunals to work, you are maximising their chances by voting "Yes". It is in the public interest that this issue should be addressed again.
Series continues on Monday