I believe the process of Government should be as open as possible, and am delighted that a Freedom of Information Bill has been enacted which will come into force next April. I hope journalists will make good use of the Bill's provisions, on which their editors should ensure they are fully briefed.
Certain types of information are, however, exempt from the operation of this Bill, for the effective working of government in the public interest requires a measure of confidentiality, even of secrecy, in certain cases. This is most obviously true in relation to Northern Ireland, where not only the careers but even the lives of people could be put at risk by the disclosure of their private thoughts, conveyed in confidence to officials of either government.
For over 20 years the evolution of a constructive Irish government policy on Northern Ireland has been facilitated, even made possible, through contacts maintained by Department of Foreign Affairs officials with members of both Northern communities, sometimes risking their lives by doing so. People have talked frankly to these officials because they have known that in no circumstances would their remarks become public.
The recent disclosure of a closely guarded note of a discussion between a Foreign Affairs official and presidential candidate, Mary McAleese, was made for political purposes and can have been made only by a politician. It is inconceivable that it could have come from a civil servant. This disclosure was grossly irresponsible, putting at serious risk the future of the State's Northern Ireland policy by risking closing off contacts vital to that policy's success, including the peace process now.
I make that statement from an intimate knowledge of the working of our governmental system in relation to Northern Ireland. I would say that, scoop or no scoop, it was wrong to have published this document, just as it was wrong to have published three years ago the leaked document setting out the Irish government's negotiating position on the Framework Document.
These were, I believe, two exceptions, and offhand I cannot think of any other in recent times, to what I believe to be the normal right of newspapers to publish leaks from political sources, however irritating or embarrassing these may be to governments or opposition parties, or to the public service. (There is, of course, the problem of people seeking to use the media for their own purposes by means of misleading leaks, but that is a problem for the media to regulate.)
Cabinet confidentiality comes in a different category: but even if security issues or people in Northern Ireland are not involved, the case for the principle of Cabinet confidentiality is a strong one. To be effective, a system of government based on collective responsibility requires that discussions in Cabinet be private and that the diverse views of ministers on issues requiring government decisions should not be disclosed.
Otherwise, when a decision is taken on a matter upon which ministers' views may have differed, those who have lost the argument could not credibly stand over and defend the agreed outcome. And if they cannot do that, then Cabinet responsibility, a principle wisely entrenched in our Constitution, simply evaporates.
Although in theory the somewhat dated Official Secrets Act might be held to have some potential relevance to this issue of Cabinet responsibility, I do not think it has ever been invoked in this context. In the past Cabinet confidentiality has been upheld by convention rather than by law.
There have, of course, been breaches of Cabinet confidentiality from time to time, most of them leaks by ministers or their political aides to journalists. Some have been embarrassing to successive governments, and some may also have been against the public interest.
Nevertheless, until this issue was brought to the courts by the attorney general of the day, no government had thought it wise or necessary to attempt to strengthen this convention by giving it legal force. For the issues involved are too complex and subtle to be satisfactorily enforced by legal means.
A real Pandora's box was opened up by bringing the law into this area to try to prevent the beef tribunal from inquiring into the Cabinet discussions that had led to the controversial export credit decision for the Goodman Group. No doubt the attorney general was genuinely concerned to sustain the principle of Cabinet responsibility, but his action was nevertheless most ill-conceived.
For, by ultimately evoking from the Supreme Court a 3-2 constitutional decision which overturned the considered view of the High Court, he turned a valuable political convention into a dangerous constitutional ban of an absolutist character.
Because it allows no flexibility and no exceptions, this ban was unsustainable, unworkable and potentially seriously damaging to the public interest. Worse still, once it had been laid down by the Supreme Court it has been almost impossible to turn it back into a convention again.
The best that two successive governments have been able to come up with has been a constitutional amendment for just two specific and very limited exceptions, outside of which the dangerous rigidity of the Supreme Court's ruling will continue to operate in a thoroughly perverse way.
The dismissal by the Tanaiste, Mary Harney, on an RTE programme several days ago of the problems thus raised was as unwise and unconvincing as her denunciation of her former colleague, Michael McDowell, was intemperate. Her attitude contrasted sharply with that of the Taoiseach replying to the debate in the Seanad six weeks ago when he conceded, albeit without entering into any commitment, that the matter might need to be looked at again.
The serious issues involved here cannot be disposed of by describing them airily as "absurd" or by the hoary device of assuring us that the Attorney General believes the courts would not take a particular view. Attorney generals' views of the courts' likely interpretation of laws have, of course, been proved fallible over and over again, just as High Court decisions have been frequently overruled by the Supreme Court. For the interpretation of the Constitution and of laws is inherently uncertain.
The simple facts are that, as drafted, this amendment omits any provision for such matters as:
The right of a resigning minister to explain his reasons for resigning, as, for example, where his departure was precipitated by a proposal he disagreed with, made in Cabinet by a Taoiseach.
The right of a minister to discuss with his own civil servants the reasons why legislation prepared by them may have been amended or rejected by Cabinet.
Access to or disclosure by historians of Cabinet discussions over 20 years earlier (currently on 1922-1967) concerning legislative proposals which, under the National Archives Act, are publicly available to them.
It is, of course, absurd that because of the ill-considered decision of the Supreme Court we should have to contemplate introducing into our Constitution detailed provisions of this kind, which have no place in such a document.
If, because of the ham-fisted action of an attorney general five years ago, we are now precluded henceforth from regulating this matter by convention, as we happily did for 70 years, then it clearly should be regulated by legislation, not by having to introduce into the Constitution a series of individual exceptions to an immutable principle invented by a bare majority in a previous Supreme Court.
Michael McDowell is, of course, quite right to suggest that in this unhappy situation this inadequate and misplaced constitutional amendment should be abandoned in favour of a Bill setting out, as best as can be done, the variety of circumstances in which strict Cabinet confidentiality would not apply.
If such a Bill were then referred to the courts by the incoming president, it is, I believe, inconceivable that judges would feel so bound by that earlier unfortunate decision as to strike down the expressed will of the Oireachtas on a matter that so clearly falls within the competence of these two arms of the State.
How could this be achieved? I would propose that the party leaders in the Dail now get together informally to seek agreement on this course of action, recognising that a mistake has been made because of understandable preoccupation with other matters, and also perhaps over-reliance upon a purely legal approach to what is essentially a political problem.
I believe the public would welcome warmly such evidence of openness amongst politicians: such a move might start the process of restoring public faith in politics.