Micheál Martin (Cork South Central, Fianna Fail) | Oireachtas source

That is not correct. Cabinet confidentiality was in place long before 1997. What happened in 1997, and I stand corrected, was that there was an amendment to facilitate the breaching of Cabinet confidentiality in circumstances of a tribunal of inquiry going to a High Court in matters of public interest and getting access to Cabinet documentation. If I am not mistaken that was in regard to the tribunals of inquiry. The Taoiseach is incorrect in saying that it is something that just came along in 1997. That speaks to the error in setting up the banking inquiry within this House because the Taoiseach took away that facilitation. If he had gone a tribunal of inquiry or a Leveson-type inquiry route, and there was legislation published amending the Tribunals of Inquiry (Evidence) Act 1921, the 2005 Act, he would have retained that facility for a banking inquiry to go to the High Court to get permission to breach Cabinet confidentiality, get access to the Cabinet memorandums and allow former Ministers to speak at an inquiry without being fettered by the rules of Cabinet confidentiality, which all the Cabinet I have met would be more than happy to do. In fact, it would add value to such an inquiry. The fact that that is not now available is a limiting factor in getting at the full truth, and I can never understand why the Government decided to go down that particular route.

I do not know why the Taoiseach put in that we will legislate on the issue of Cabinet confidentiality because prior to his Government coming into power most Opposition parties had been saying for ten years that they wanted to relax Cabinet confidentiality and create situations where people should be able to find out what happened in Cabinet on certain occasions. That is why the referendum on the 1997 constitutional amendment took place. The Taoiseach has created an impression that it was creating Cabinet confidentiality for the first time.

I would also make the point to the Taoiseach that there has been very little discussion on the Central Bank (Amendment) Bill that will come before us on Thursday. The Taoiseach must have known about this before he set up the banking inquiry. That has extraordinary limitations on what the Central Bank can reveal or what the members of the inquiry team can get from the Central Bank in terms of documentation because of European Union directives. One of the institutions that is central to any investigation will be extremely limited now in terms of the documentation that could be accessed by the committee of inquiry. There is a question mark in terms of 60% of the documents. Even if it accesses those documents it will not be able to name corporates or individuals. It can only deal with the material from the documents in aggregate, which is a phrase used by the parliamentary legal adviser to both the inquiry team and the Committee on Procedure and Privileges.

This is a very serious issue for the operations of the inquiry but no one has focused on it. The Government produced it last week to the Committee on Procedure and Privileges and it was explained to our Whip that there are huge restrictions in terms of what can be revealed from the Central Bank, and huge limitations to the powers of the inquiry team members in terms of the questions they can ask, how they can ask the questions and the documentation they can access. Apparently, they will all have to go to a central storage facility. They can only access them without getting copies of them, and they will have to pluck bits and pieces from them. It is very unsatisfactory from what I have heard so far and the least the Taoiseach could do is to undertake for someone from the Oireachtas to make a comprehensive presentation on that issue to the Members of the Oireachtas before we consider the Bill on Thursday, because along with that there will be an amendment to Standing Orders to the effect that members of the banking inquiry - Deputies and Senators - could be subject to sanctions if they treat the material wrongly or mention either corporate names or individuals. That is my understanding. That is how it has been explained to us by our Whip. It was explained to him that there is a proposal from the Government side to amend Standing Orders to penalise any members of the inquiry team into the future if they treat that material wrongly or contravene the legal restrictions that will be on them.

In the context of the issue of Cabinet confidentiality, it appears the way that inquiry was set up was to reinforce Cabinet confidentiality and not relax it or facilitate Members who would love to be of a view that, for example, the memorandums at the time and the memorandums of the meeting the following morning would be revealed, and also that all legal advice given to the Government at the time would be revealed, and other such advice. My understanding is that much of that will not be made available to the inquiry team, and that is potentially very undermining of its work.

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