Brendan Howlin (Wexford, Labour) | Oireachtas source

I thank the Senator for the series of amendments. I will take amendments Nos. 10 and 11 together first because they relate to the confidentiality of Cabinet discussions. Section 71(1)(a) provides that the committee shall not direct a person to give evidence or documents relating to discussions at a meeting of the Government or a committee appointed by the Government whose membership consists of members of the Government. This section is based on section 5(1)(a) of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997. Section 71(1)(b) relates to sub-committees of Cabinet and is based on section 5(1)(b) of the 1997 Act. A number of strict conditions must be met before a committee enjoys the protection of this section. It must be a meeting authorised by the Government, the proceedings of the meeting must be required by the Government to be reported to it and the Secretary General to the Government must confirm the position in a signed document to the Oireachtas committee of inquiry.

Amendments Nos. 10 and 11 propose to delete the protections related to discussions at Government. However, the Bill respects, as it must, the constitutional protection for the confidentiality of discussions at Cabinet. Article 28.4.3° was inserted in the Constitution following the judgment of the Supreme Court in Attorney General v. Hamilton (No. 1), deriving a principle of Cabinet confidentiality from the general principle of collective responsibility in Article 28.4.2° of the Constitution. The purpose of the amendment to Article 28.4 was principally to establish exceptions to the absolute principle identified by the Supreme Court, that is, to allow for disclosure of Cabinet discussions in the interests of the administration of justice by a court and the conduct of tribunals of inquiry. Article 28.4 does not provide for an exception in the case of Oireachtas inquiries. There is no constitutional means to do that by law. To do what the Senator has requested would require a further constitutional amendment.

Amendment No. 12 proposes to remove the exemption related to evidence that could be prejudicial to the State in its relations with other states. The existing provision aims to strike the appropriate balance between the interests of a committee conducting an inquiry and the interests of the State in maintaining its diplomatic relations with other states. It is important the committee would not request information that would prejudice the State internationally. I am certain that no committee would wish to do so in any event. I understand that Senators may have concerns about possible misuse of that provision. Consequently, I draw the attention of the House to section 94, which allows a person to seek direction from the courts about whether the prohibition set out in section 71(1) appropriately applies to a direction of a committee of inquiry. For these reasons I do not believe the amendment is necessary.

Amendment No. 18 proposes to remove the exemption relating to evidence that could be prejudicial to the State in its relations with other states for committees conducting their ordinary business, that is, not only in respect of an inquiry but in the normal business of committees. I have noted previously that this provision is necessary to ensure the State can maintain its diplomatic relations with other nations. Committees currently operate within these confines, which simply replicate the provisions of the 1997 Act that has been in place since the overarching compellability power was enacted by the Oireachtas in 1997.

Every committee has managed its day-to-day business within those constraints without seeking to trespass on damage that might happen between this State and its relations with others. This balance should be maintained. The challenge is to strike the appropriate balance between openness and protection of the interests of the State. I wish to reiterate the oversight rule of the courts in respect of any improper use of those provisions.