Charles Flanagan (Laois-Offaly, Fine Gael)

I wish to deal with two points which have arisen in the context of the Mahon tribunal — the concept of collective Cabinet responsibility and specific aspects of Mrs. Justice Denham's judgment in the Supreme Court, which has been selectively quoted by Fianna Fáil Ministers and on which clarification is needed.

Collective Cabinet responsibility has been repeatedly undermined by Fianna Fáil Ministers over recent months. Fianna Fáil has always been a party that likes to run with the hare and hunt with the hound. Its Deputies are fond of assuming the mantle of opposition when it suits them, while continuing to enjoy the privileges of government. We have seen this in the case of the Aer Lingus debacle at Shannon, just as we have seen it in respect of the Mahon tribunal. We see Ministers, Ministers of State and Government backbenchers behaving in this manner on an almost weekly basis — this week, it was evident in the debate on co-location.

Fianna Fáil has finally professed its confidence in the Mahon tribunal in recent days, since this motion was submitted by members of the Fine Gael Parliamentary Party. This rare display of co-ordination among Cabinet Ministers follows months of sustained attacks on the integrity of the tribunal by a succession of Ministers, including Deputies Brennan, O'Dea and Dermot Ahern, and the Minister of State, Deputy Roche. This wild flip-flopping from one point of view to another among Ministers is worrying. It suggests that while the constitutional provision in respect of Cabinet confidentiality remains alive and well, the equally vital provision for collective responsibility has been seriously wounded by Fianna Fáil's opportunism. Article 28.4.2° of the Constitution states:

The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by members of the Government.

The Government has as much of an obligation to uphold the fundamental principles of the Constitution as any other citizen of this State.

It is dishonest and hypocritical of individual Ministers to take potshots at the tribunal in an attempt to curry favour with the Taoiseach. The Ministers who criticise the tribunal undermine the concept of collective responsibility because the Government is legally and constitutionally responsible for proposing that the tribunal be established, deciding how it is run and determining how much money is paid to lawyers. Until recently, successive Governments displayed a noble respect for the dignity and importance of the Constitution. Several Ministers resigned rather than breach this law including Richard Mulcahy in 1924, Paddy Smith of Fianna Fáil in 1964 and Frank Cluskey of the Labour Party in 1983. It is rare for Ministers to be allowed to dissent. In the two cases that come to mind — those involving Pat Cooney from my own party and Jim Gibbons from the Fianna Fáil Party — permission was sought and granted for them to disagree with Cabinet policy.

The fundamental importance of collective responsibility to the integrity of government and democracy has been eloquently affirmed by many academics, writers and commentators over the years. In his review of the Constitution, Dr. T.K. Whitaker put it bluntly when he said that "collective responsibility is, in turn, essential to a Government's ability to plan and act cohesively". Séamus Dolan of the law faculty at NUIG more recently said:

The concept of cabinet confidentiality flows from the notion of collective responsibility, as referred to in Article 28.4.2. Collective responsibility mandates that individual ministers present a united front to the public, and individual ministers must each offer public support for government decisions and policies, regardless of their own private or personal views on the topic. This, by implication, means the individual minister is not entitled to criticise government policy or decisions if he wishes to retain his ministerial office.

When Fintan O'Toole wrote recently in The Irish Times about the blatant disregard of the Minister, Deputy O'Dea, for collective Cabinet responsibility in the case of Aer Lingus at Shannon, he spelled out the bottom line regarding the attitude of Fianna Fáil to the concept:

The governmental chaos of the last week may look like anarchy, but it is really a form of autocracy: the Government owns the Constitution and can do with it what it likes.

The Mahon tribunal has shone a spotlight on the contempt with which this Government has treated the essential principle of collective Cabinet responsibility. This practice must be brought to an end. It is a privilege to serve in Government and that privilege comes at a small cost. Ministers should not need the Attorney General to remind them of their responsibilities but in this case they clearly do. The Taoiseach's appearances before the Mahon tribunal have highlighted further worrying precedents in the Government's attitude towards our entire legal system. In their sycophantic quest to defend the Taoiseach, Ministers, and indeed the Taoiseach's own legal team, have questioned the impartiality and intentions of some of the judges and barristers employed by the State. This is a most worrying precedent. The Government may begin to object to the modus operandi of the tribunal and seek to cast aspersions on the impartiality of its judges and legal teams. Where will this practice end? Will the Government now question the integrity of the Supreme Court if its judgments or ways of working do not suit its purposes in the future? A dangerous precedent has been established and that is why it is wholly wrong for Ministers to attack the tribunal for their own narrow party political ends.

Equally disturbing is the Government's practice of selecting sections of a Supreme Court judgment on the tribunal and taking them totally out of context for the purpose of massaging and manipulating public opinion. The Minister for Foreign Affairs, Deputy Dermot Ahern, and others are at fault in this regard. The Supreme Court judgment that Ministers are so fond of quoting only highlights the extraordinary delay caused by the lack of co-operation of the Taoiseach and others with the tribunal's processes.

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