Ministers seduced by cabinet confidentiality

IN THE same day this week, there were two contradictory developments in relation to cabinet confidentiality.

In the witness box for his libel case in London on Wednesday, the former Taoiseach Albert Reynolds gave a first-hand account of what happened at a meeting of his cabinet in November 1994.

He talked openly about discussions at cabinet between his ministers and the then attorney general, Harry Whelehan, and about the cabinet meeting at which Fianna Fail ministers decided to appoint Mr Whelehan as president of the High Court.

Yet while Mr Reynolds was giving this testimony, his successor, Mr Bruton, was explaining to Opposition leaders in the Dail why his Government was reneging on a commitment it gave in the Programme for Government to hold a referendum to relax the absolute ban on all discussions at the cabinet table that has been explicitly in effect since 1992.

The decision to leave the cabinet confidentiality rule in place is all the more pointed, coming as it does at a time when the same Government has just appointed a tribunal of inquiry into the hepatitis C scandal. For the rule itself arose out of the last such judicial inquiry, the beef tribunal.

At that time, the three leaders of the present Government roundly condemned the use of cabinet confidentiality to limit the scope of the inquiry. Now, in effect, they are proposing that another inquiry, which must also touch on the conduct of ministers, will have to operate within limits which they themselves described as "disgraceful".

The issue arose in the first place when Harry Whelehan, acting, as the Supreme Court made clear, with at least the tacit approval of Albert Reynolds's govt sought and obtained from the Supreme Court a ruling that it was unconstitutional for the beef tribunal to inquire into cabinet discussions, even though the chairman of the tribunal, Mr Justice Hamilton, had stated such inquiries to be in "the public interest" and "fundamental" to his inquiry.

THIS legal action began, ironically, when the State legal team at the tribunal, acting on instructions from Mr Whelehan, intervened to prevent one of its own witnesses, the former Minister for Industry and Commerce, Mr Ray Burke, from answering questions about a crucial cabinet meeting in June 1988.

Mr Justice Hamilton pointed out that he had been appointed by the Oireachtas to inquire into matters of urgent public importance and that, while he intended to act responsibly, "there are certain questions I have to ask". Mr Whelehan then took Mr Justice Hamilton to court.

The argument that followed was never about whether, in ordinary circumstances, government deliberations should be private. The issue, rather, was whether, in exceptional circumstances, the public interest in getting at the truth might outweigh the normal practice of confidentiality.

When this case came to the High Court in July 1992, Mr Justice O'Hanlon, in ruling against the attorney general, made this clear. It had not, he said, been unknown in other countries for totally corrupt governments to come to power and for their members to enrich themselves at the cost of the public purse.

Were such a situation ever to arise in Ireland, the effect of Mr Whelehan's submissions would be to prevent any tribunal of inquiry from obtaining the information it needed to establish guilt where guilt existed.

"I do not", he added, "consider that our Constitution has failed to protect the public interest in the manner suggested. It would hardly be a model of its kind if it were so deficient in such an important respect."

What the judge was saying was clear: if cabinet confidentiality operated as the attorney general thought it should, then not merely could no tribunal ever uncover corruption if it existed at government level, but the whole basis for Irish democracy would be fundamentally deficient. The rights of the government would be more important than the interests of the people.

This ruling, however, was overturned by the Supreme Court. While two of its judges supported the High Court decision, the other three found that the Constitution was indeed deficient in precisely the respect that Judge O'Hanlon had pointed to: it did not protect the public interest when that interest conflicted with the interest of the government.

In explaining his Government's decision to effectively abandon its promises to relax the rule, Mr Bruton suggested this week that this would be "a major change in constitutional practices maintained in this country for a long time".

If absolute cabinet confidentiality is so fundamental and deeply rooted in our political traditions, however, it seems extraordinary that a majority of the eminent judges asked to rule on the issue in 1992 did not believe it to exist at all.

FOUR of the seven judges who considered the issue at the tribunal, the High and the Supreme Court, Judge Hamilton (now, of course, the Chief Justice) and Judges O'Hanlon, Egan and McCarthy, ruled that there had to be circumstances in which the public interest was more important than cabinet confidentiality. Indeed, the late Judge Niall McCarthy, in his dissenting judgment in the Supreme Court, tackled head-on the contention that John Bruton repeated this week: that without an absolute guarantee of confidentiality the quality of cabinet discussion would be diminished.

"Why," asked Judge McCarthy, "should freedom of discussion require an absolute constitutional right of confidentiality?" The only reasons he could think of were that members of the cabinet would want to make libelous or scandalous statements under cover of cabinet confidentiality, "and to use such a possible instance as an argument here in my view is to trivialise the status of government".

He also pointed out that Ireland would be unique among democracies in having an absolute rule of cabinet confidentiality: "We have not been referred to a single instance in a modern nation enjoying democratic rule under a rigid constitution where such an absolute rule has been found, expressed, or implied." In the United States and Canada, there are explicit legal provisions for the overriding of cabinet confidentiality in the public interest.

Even in Britain, often regarded as the most secretive of political systems, the courts refused to constrain publication of the famous Crossman Diaries, which included accounts of cabinet discussions. Yet those governments seem to manage perfectly well.

Not only, however, is the rule unique in the democratic world, it is also extraordinarily unclear. The three Supreme Court judges who enunciated it were not asked to spell out its actual application in practice. Does it apply to oral discussions only or does it also include the documents on which the discussions are based? Can a government decide to waive its right to confidentiality as the ruling of the then Chief Justice Finlay seemed to imply?

If it cannot, why did the Haughey government in 1990 implicitly authorise the publication of the diaries kept by Gemma Hussey during her period as Minister for Education? Why has no subsequent attorney general sought to prevent the standard practice whereby the government press secretary is briefed after every cabinet meeting and in turn briefs political correspondents?

Yet, however uncertain it may be in practice, and however often it is breached, one thing about the rule is entirely clear. It can make the work of public inquiries almost impossible.

In the final report of the beef tribunal Mr Justice Hamilton wrote that the success of the attorney general's action against him meant that he was "precluded from inquiring into and reporting on the factors which influenced the government in reaching" its decision to risk huge amounts of public money in the beef trade with Iraq.

No one, not the two houses of parliament which commissioned the report, not the president of the High Court who conducted the inquiry, not, above all, the public in whose "national interest" the decisions were made, can ever know why the beef scandal happened.

The lesson should be obvious. Any public inquiry into the behaviour of ministers is likely to be seriously undermined by the absolute cabinet confidentiality rule. So long as ministers had carried out their business at the cabinet table, they did not have to answer to anyone, not the Dail, not the people, not a tribunal, for what they had done.

The chairman of the new tribunal, Mr Thomas Finlay, who, as chief justice, proclaimed the rule in 1992, will not be able to question Michael Noonan or any of his predecessors about any discussions they may have had in cabinet. And the politicians who found such limits unacceptable in 1992, when they were out of office, now seem to find them perfectly tolerable.