Cabinet confidentiality hard to change

AS the man who secured the Supreme Court ruling placing an absolute obligation on ministers to maintain cabinet confidentiality in 1992, Mr Harry Whelehan now believes that "the public interest demands that there is strong and effective government, a government which is united and presents a united front behind its decisions. That is the greater public interest.

"I can understand that public curiosity would like to know what goes on for two hours a week when the government meets collectively. But I think the public interest is a higher interest than the interest of public curiosity," Mr Whelehan says.

He dismisses the argument of the public interest overriding the confidentiality of a corrupt government as "so far fetched as to be really unrealistic". And he cannot see how the blood bank tribunal could be inhibited by the confidentiality rule.

Seated in his legal chambers in Church Street, Mr Whelehan explains that he had taken a decision, in principle, early on in the beef tribunal to object to any attempt to have discussions at cabinet raised.

It was quite clear that the tentacles of the tribunal were going to stretch far and wide because of its wide terms of reference, he continues.

"I had a fear early on that somebody, some place, would start inquiring from ex ministers from some of the governments which had been in office during the period of the inquiry as to what had been discussed at cabinet meetings. I never had any doubt about the fact that the Constitution had a prohibition on the disclosure of the discussions that go on at cabinet."

He alerted the State's legal team that if any former minister was asked about what went on at cabinet at any stage an objection was to be raised and the issue was to be tried. He was surprised when the chairman of the tribunal, Mr Justice Hamilton, was the one to raise it.

He is emphatic that, as Attorney General, he took the cabinet confidentiality case in his independent capacity as guardian of the public interest, rather than as legal adviser to the government. He didn't have to secure the agreement of the government for his action. "That was said very clearly by Albert Reynolds but, of course, nobody believed him at the time."

The action was in no way intended to be protective of anyone, he adds. It was securing the principle.

He didn't see any breach of the confidentiality rule in the evidence given by former Taoiseach, Mr Reynolds, in his libel action in London about the cabinet meeting which appointed him President of the High Court.

"I wasn't at the cabinet meeting where my affairs were discussed. I had left the meeting before that was discussed. I have never read an account given by anybody about what was said at that meeting. What we do know is that the Labour members of government left the room. The minister for justice proposed the appointment. We don't know what was said."

Mr Whelehan, who personally argued the case for cabinet confidentiality in 1992, wasn't surprised that the Supreme Court judgment placed such an absolute obligation on government members to adhere to cabinet confidentiality.

"There is always a difficulty in defining just what are the limits of such a rule, particularly when it is an implicit rule interpreted out of the Constitution. The difficulty of tailor making a rule which is not absolute in such circumstances is just impossible.

"If you have a rule, it must be an absolute rule. That is recognised by the parties in government now who see the difficulty that is created by trying to limit it," he continues.

Mr Whelehan believes that it is clear from the majority decision of the Supreme Court, delivered by the then Chief Justice, Mr Justice Finlay, that the rule cannot be waived.

He then gives his definition of the cabinet confidentiality rule as it exists now.

"We are not talking about the public being deprived of the sight of documents which go to government. All documents which are circulated to government - unless there is a very sensitive security matter or such like - are open and compellable to be produced in court. All of the decisions which come out of government are clear.

"All that this rule - which is presented as draconian - does is that it preserves the privacy for the government to argue around the table, toss around a problem, present views which may be in the sense of the devil's advocate among themselves, arrive at a decision which has a consensus, make a unified decision to which each member of the government is committed to give full support in public. That is all that the rule establishes. It merely makes the space for the government to have that privacy", he says.

He was then asked if the rule would preclude ministers from giving an account of their stewardship of the hepatitis C scandal, as the facts are established, to the latest tribunal. Hadn't the public a right to know how the matter came to Government?

The public has a right to know, Mr Whelehan answers, and the tribunal has a right of access to every document that was ever considered by the government and will have a right to scrutinise any decision of the government which is recorded and emanated from any discussion at cabinet.

"Outside of that, as to what was discussed at cabinet, the discussions are absolutely confidential. I cannot see that the inquiry will be inhibited by that. I don't believe that the beef tribunal was inhibited in its conclusions by not being able to inquire into what went on at government meetings," he explains.

Asked if there was an over riding public interest in the example cited by Mr Justice O'Hanlon in the High Court, where corrupt governments could come to power and enrich themselves at the cost of the public purse, Mr Whelehan replies: "I think that is so far fetched as to be really unrealistic.

"You must remember that all of the documents prepared for consideration by government are prepared by civil servants. All of the decisions of government are implemented by the Civil Service. The documents can be scrutinised, the decisions are announced, and ministers are responsible to the Dail for giving effect to the decisions. So I cannot see the conspiracy theory.

"We must remember, even though we live in a very cynical society, that in order to be a member of government, you have first got to be entrusted with the job of representing a very large body of the population," he continues.

"The Taoiseach must be elected by the Dail. Having been appointed by the president, he proposes each member of the government to the Dail and they must be approved by the Dail."

Mr Whelehan's view is that you start off with people who are very answerable and accountable before they ever become ministers. They are accountable to the Dail on a weekly basis for the conduct of their Departments. They are accountable not only for their own Department but collectively for each other's Department.

"The public interest is served by the safeguards that are there," he sums up.

The backdrop to the whole doctrine of cabinet confidentiality, according to Mr Whelehan, is that we adopted the Westminster model of parliamentary government with the cabinet when we came to writing our 1922 Constitution.

"We carried that forward in the 1937 Constitution. The state of British constitutional law at that time, its explicit and implicit traditions, were written down and adopted by the people. In the United Kingdom they have a flexible, unwritten constitutional convention which changes with the times. Their parliament is supreme.

"We wrote down the state of British constitutional law which was much more jealous of the privacy of the cabinet then than it is now," says Mr Whelehan. "So we have fallen behind. The reality is that we have a different system".

He is not surprised that the Taoiseach has encountered difficulties in trying to relax the rule now. "I am not the least bit cynical about the Government's present situation. I would be much more cynical about the outburst and posturing that went on at the time of the beef tribunal in 1992. A great deal of the reaction to it was ill considered, ill advised or it was just to use the Attorney General as somebody to bash the government which appointed him."

He concluded: "I think there is probably an insurmountable difficulty in finding a formula which would enable the rule to be relaxed and which would, at the same time, be consistent with the whole concept of collective government responsibility."