As the Oireachtas Inquiry into the banking collapse of 2008 gets underway, attention has recently focused on the question of whether the Inquiry will be able to access information surrounding the cabinet meeting at which the Government approved the infamous bank guarantee scheme; and if so, how much and what types of that information will be available. This raises difficult questions of constitutional law surrounding cabinet confidentiality.
Article 28.4.3° of the Constitution states as follows:
The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter –
i in the interests of the administration of justice by a Court, or
ii by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.
This provision was inserted by referendum in 1997 in the aftermath of Attorney General v Hamilton (No. 1)  2 IR 250. In that case, the Beef Tribunal had sought to sought to question former Minister Ray Burke about Cabinet discussions surrounding the allocation of export credit insurance to beef exporters. The Attorney General objected, arguing that these discussions were confidential under the Constitution. The Constitution did not clearly state this at the time, but in a 3-2 decision, the Supreme Court held that the confidentiality of cabinet discussions was a necessary corollary of the doctrine of the collective responsibility of the Government (which was expressly provided for in Article 28.4.2°). The key point of controversy that generated the split in the Court was whether this rule was absolute, with the majority holding that it was.
The 1997 amendment partly reinforced the Hamilton decision and partly reversed it. Article 28.4.3° expressly states the rule that discussions at cabinet meetings are confidential, but makes it subject to two exceptions under which it may be lifted by the High Court. The first, on the administration of justice, refers to court proceedings; the second refers to applications made by tribunals of inquiry.
The problem for the Banking Inquiry is that it is neither a court proceeding nor a tribunal. Accordingly, it does not fall within the exceptions to the rule, and any evidence of discussions at the relevant cabinet meeting (whether by way of minutes or oral testimony from one of the members of Government at the time) is clearly not available to it.
In some ways, this is of relatively little consequence in itself, as we know that the Government approved the bank guarantee scheme – and since the Government is collectively responsible, it makes no difference (constitutionally speaking) who was in favour or who was opposed. What the Inquiry may be at least as interested in finding out is what information was available to the Government in advance of making that decision, and who was responsible for furnishing that information.
It is far less clear whether preparatory documents such as memoranda or briefing papers are covered by cabinet confidentiality. In the Hamilton decision, the majority judges were at pains to stress that their decision related only to discussions and not to documents. As a matter of fact, many such documents had been made available to the Beef Tribunal in advance of the litigation. Finlay CJ observed at 272:
“Since the sole issue raised before us in this appeal is whether such an absolute right of confidentiality exists, I am satisfied that the Court cannot be concerned with either the relevance of the questions sought to be asked concerning discussions at Government meetings, nor with any apparent breaches of such confidentiality which it is suggested have occurred in either documentary or oral evidence already afforded to the Tribunal. These matters would only be relevant if an issue of qualified privilege or confidentiality had arisen.”
Similarly, O’Flaherty J commented at 296-297:
“We are now called on to adjudicate on whether questions can be asked of Government Ministers (past and present) and others about discussions in cabinet. I emphasise that it is with discussions we have to deal because it is common case that all the relevant documents, such as memoranda for Government which are circulated in advance of Government meetings, as well as the written decisions taken and, indeed, various departmental minutes have been made available to the parties.”
It is possible to read Hamilton in three different ways on this point. One is to read it as being deliberately agnostic on the point, in which case it is all open to argument in a future case like the present Inquiry. A second is to read it as tacitly accepting that the documentation made available to the Beef Tribunal had not breached cabinet confidentiality – surely the majority judges would have said so, given the absolutist formulation of the rule that they set down? A third way is to read it in the manner adopted in the subsequent case of Lang v Government of Ireland  ELR 234. In that case, O’Hanlon J commented that a formal memorandum prepared for Government by the Department of Justice in preparation for a decision as to whether to dismiss a prison officer from his post was “protected, and perhaps also precluded, from disclosure” in light of the Hamilton decision. Having said that, the document was in evidence in this case and (as it happened) was considered by the High Court (and deemed irrelevant to the decision, as the information contained therein was simply a repetition of information contained in other voluminous correspondence).
O’Hanlon J’s approach seems the least convincing of the three options set out above, and may have been in part an off-the-cuff reaction to the fact that his own High Court decision in Hamilton had been reversed by the Supreme Court. The view that preparatory documents are covered by cabinet confidentiality runs against what actually happened in both Hamilton and Lang, as well as the wording of the 1997 amendment, which refers specifically to “discussions at meetings of the Government” and makes no reference to documents. In light of the fact that extensive reference was made to the issue of documents in the Hamilton decision, the absence of an express reference to them in the wording of Article 28.4.3° is telling (and arguably decisive).
One final additional (and complicating) factor is section 71 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. This provision, contained in the legislation governing the Banking Inquiry itself, re-states the rule on cabinet confidentiality and extends it to committees appointed by the Government consisting of members of the Government (with or without Ministers of State or the Attorney General). This may tie the hands of the Inquiry even further, but unlike Article 28.4.3°, this provision (or at least the additional element of it) may potentially be reviewed by ordinary legislation. Whether any such legislation would survive constitutional challenge on the grounds that access to discussions of Government sub-committees may undermine broader cabinet confidentiality is an open question.
Dr Conor O’Mahony is a senior lecturer in Constitutional Law at University College Cork. Twitter: @ConorUCCLaw