Sir. Saturday's "Irish Times" devoted extensive space to criticism of the Government's announcement that it is not ready, this year, to hold a Constitutional referendum to change the decision by the Supreme Court that Cabinet discussions must remain confidential in all circumstances. Neither your coverage on Saturday, nor your coverage on the day of the announcement, contained a comparably prominent outline of the extensive reasons given in the Dail, by the Taoiseach John Bruton, for the Government's decision to study this matter further before deciding if it can proceed. In the interest of balance, I would like to set these reasons out.
Firstly, it is necessary to draft any amendments to the Constitution with care. Past experience of hastily drafted Constitutional amendments shows this. Although extensive work has been done on the issue of Cabinet confidentiality, the Government is not assured at this stage that it has a suitable wording that it could put to the people, and stand over from every point of view.
Secondly, the Government has not satisfied itself about the effects on the doctrine of collective responsibility in Cabinet of the possible setting aside of confidentiality of the discussions leading to a particular collective decision.
The prospect that individual Ministers eight find. themselves giving evidence against one another, at some unknown time in the future about what was said at a particular Cabinet meeting would, in effect, substitute a doctrine of individual responsibility for the present one of collective responsibility. This would be a major change in our Constitution, and not one that should be made lightly.
Thirdly, there is also ongoing concern as to the test that should be used in deciding that confidentiality should no longer apply in a particular case. While expressing serious reluctance about any change at all being made, the Whittaker committee on the Constitution argued recently that, if a change was to be made, the test should be that of the "overriding public interest". The Government has been working up to that point on the basis of the matter having to be one of "grave public importance". The first concept is, broadly speaking, an objective test, whereas the second one is subjective or political judgement. This issue requires further study, especially in light of the Whittaker analysis.
Fourthly, there is the related concern about who should make the final decision as to whether a particular discussion at Cabinet is one which passes the appropriate test, and is thus one to which Cabinet confidentiality should no longer be applied. Should the final decision be made by the Courts or by the Dail? If the Courts make the decision, this involves a Court intervention in an area of parliamentary and executive competence, and affects the separation of powers. If the Dail make the decision, there is the risk that a decision to waive confidentiality in regard to a particular Cabinet discussion will be politically motivated and made with selectively retrospective effect, at the proposal of a subsequent Government party, for political purposes.
These concerns are real. When the Taoiseach set them out in the Dail last week he expressed the hope that they would be debated in an informed way. It is worth adding that the doctrine of absolute confidentiality has only been applied by the Court to discussion at Cabinet and not to papers for, or decisions by, the Cabinet.
It may also be helpful to your readers if I quote extracts from the Whittaker Report which outline, both its reasons for caution in changing the doctrine of confidentiality, and its tentative findings:
"The Review Group is excused by its terms of reference from considering the issue of cabinet confidentiality. However, it notes that such confidentiality is an almost universal feature of government and the essential underpinning for the doctrine of collective responsibility enshrined in Article 28.4.2. Collective responsibility is, in turn, essential to a Government's ability to plan and act cohesively. The possibility that cabinet confidentiality might in some circumstances be lifted could in itself, obviously, inhibit discussion and therefore the effectiveness of government.
"Cabinet confidentiality, by allowing the Government to discuss its business free from external pressure and scrutiny, enables it to draw fully on the political skills, knowledge and experience of its members. It is in the Dail, where debate can take place in public, where mechanisms for formal recording of views exist, and where rules of debate apply, that a Minister, while still observing cabinet confidentiality and the principle of collective responsibility, most appropriately explains the reasons for, and the background to Government decisions.
Conclusion. there are strong grounds for extreme caution in any approach to relaxation of the rule. Two approaches were considered by the Review Group:
1) relaxation should be subject to the most stringent test of public interest, as judged by the High Court or Supreme Court, and should he confined to the context of a criminal prosecution against a member, or former member of the Government (as is the case in the United States and Australia)
2) the context, specified at I, could be unduly restrictive and it might be better to express any constitutional relaxation in less specific terms while still applying the test of overriding public interest as determined by the High Court or Supreme Count.
It should be understood that the rule of cabinet confidentiality does not apply to Government decisions which are formally recorded. Their communication to those concerned establishes them as items of public knowledge."
These quotations, from the recent and very thorough study of our Constitution, show clearly why care must be taken in preparing any possible Constitutional amendment to alter the existing Supreme Court ruling. Yours, etc.,
Chief Whip and Minister of
Taoiseach's Department, State,
Government Buildings,
Dublin 2