Amendment `cure' may be worse than disease

On July 7th, 1992, Ray Burke was asked at the Beef Tribunal about discussions that occurred at a Cabinet meeting on June 8th, 1988. The question arose from a dispute over what exactly had been decided by the government about increasing the availability of export credit insurance for the export of beef to Iraq and the confining of the insurance to just two firms, Goodman International and Hibernia Meats. The question was central to what the Beef Tribunal was about and central to the role of Albert Reynolds in the saga of the export credit insurance affair. Before Ray Burke had an opportunity to answer, counsel for Harry Whelehan, then Attorney General, intervened. Counsel claimed the revelation of what was discussed at Cabinet would be a breach of the Constitution. The chairman of the tribunal, Mr Justice Liam Hamilton, now Chief Justice, rejected the contention made in the name of the Attorney General and the issue was referred to the High Court by way of judicial review.

In the High Court, Mr Justice Rory O'Hanlon rejected the application made on behalf of the Attorney General. He said that an absolute ban on disclosure of Cabinet discussions "would not have due regard to the public interest and to the rights of the individual as guaranteed by the Constitution". Harry Whelehan appealed the decision to the Supreme Court and personally appeared there to argue the case.

Three of the five judges then sitting on the Supreme Court decided in favour of Harry Whelehan's contention on absolute confidentiality of Cabinet discussions: Chief Justice Thomas Finlay, Mr Justice Anthony Hederman and Mr Justice Hugh O'Flaherty. A problem with the decision is that the reasons the three judges offered were not the same, so it has been difficult to say precisely what the legal position is on the issue.

There is the further complication that only one of the five judges that were on the court when the judgments were delivered on August 21st, 1992, is still there - Mr Justice Hugh O'Flaherty. And there is excellent anecdotal reason to believe that if the issue were considered by the present Supreme Court, the August 1992 decision would be reversed. Indeed, there is reason to believe that even the old Supreme Court would have reversed its decision because, it is reliably reported, one of the three judges in the majority changed his mind.

Two judges, Chief Justice Finlay and Mr Justice Hederman, argued in their judgments that the Constitutional requirement on the government "to meet and act as a collective authority" precluded the revelation of any dissension from government decisions. Chief Justice Finlay said that the Constitution required "as a necessity, the nondisclosure of different or dissenting views held by members of the government prior to the making of decisions". Mr Justice Hederman said that if Cabinet discussions were not kept confidential its decisions were "liable to be fatally weakened by disclosure of dissenting views".

The problem with these arguments is that they prove too much. They would preclude ministers from revealing their opinions on any current issue prior to government decisions, lest their doing so would reveal dissent and, thereby, "fatally" weaken such government decisions. But since two of the judges in the majority argued this case and since the third judge in the majority did not disagree with such argumentation, the legal position on Cabinet confidentiality would seem to extend far beyond just the confidentiality of Cabinet discussions.

It is not just that Cabinet discussions appear covered by an absolute confidentiality requirement, but, it would appear, ministers are enjoined to silence on all current issues, until such time as the government takes a decision on them.

The issue at the core of the judgment of Mr Justice O'Flaherty was that "Dail Eireann cannot possibly be concerned with the process of dialogue by which the government evolves its policies or reaches its decisions". He deduced this from what he perceived to be a strict Constitutional separation of powers between the executive, legislature and judicial branches of government. And it was this point that was common to all three judgments in the majority.

But can it really be the case that it is none of the Dail's business how the government takes decisions? What if the government was to take decisions in a manner that failed to comply with the requirement to "meet and act as a collective authority"? Would it not be the business of the Dail, to which the government of the day is accountable, that the government was acting in an unconstitutional manner?

It was this constitutional mess left by this Supreme Court decision that the present amendment seeks to clear up. But, as Desmond O'Malley, Garret FitzGerald, Michael McDowell and others have argued, the cure may turn out worse than the disease.

IF the amendment is passed, for the first time the Constitution will explicitly enshrine the principle of Cabinet confidentiality, albeit subject to two specific exceptions. Wouldn't it have been far better, in the first place, to have allowed the present Supreme Court a second bite at the confidentiality cherry? And failing that, we could have had an amendment to the effect: "The confidentiality of government discussions shall not be a matter of Constitutional right but shall be regulated by law" (I am indebted to Mr Justice Rory O'Hanlon for this formulation).

The two qualifications to the proposed absolute confidentiality of government discussions relate to where the High Court determines that disclosure would be "in the interests of the administration of Justice by a Court" and where the High Court determines disclosure would be of "overriding public interest" in the context of a tribunal inquiry.

But this proposed amendment does not deal with the danger that, following the August 1992 Supreme Court decision, ministers might be precluded from speaking out on public issues that might subsequently become the subject matter of a government decision. Indeed, arguably, the amendment would copper fasten the Supreme Court judgment on the issue.

Neither does it deal with the problem of discovering what was a government decision in circumstances in which there is a dispute about what the government decision was. And there is the further problem of political memoirs and of disclosing criminal conspiracies hatched from within government.

So how should we vote in the referendum tomorrow?

The main argument against voting No is that the vigour of the new tribunals may be blunted if the amendment fails to pass. But this could be only if the present Supreme Court were to uphold a new challenge to absolute Cabinet confidentiality and all the signs are that it would not. In any event, if this amendment fails, then it is not beyond the bounds of government and parliamentary capability to organise another referendum quickly, ideally along the lines of Mr Justice O'Hanlon's formulation.

On balance, vote No.