Friday, February 5, 2010

Kildare Street Confidential

Last night at Leviathan one of the contributors (Gerard Hogan I think) mentioned that cabinet confidentiality had a couple of exceptions written into the Constitution. 28.4.3 is the relevant article and reads 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
  • in the interests of the administration of justice by a Court, or
  • 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 clause was introduced by the 17th amendment that was approved in November 1997 following a ruling by the Supreme Court that stated that the confidentiality of cabinet meetings was inviolate. The new clause allows a tribunal of enquiry to apply to the High Court for an order to breach the confidentiality in cases of overriding public interest.

It was thrown out last night that this might be a way to force the banking enquiry to be held in public. However, from my non legal reading of the above clause, this is not the case. An Oireachtas enquiry is not a tribunal, therefore the committee of enquiry cannot make such an application. This leaves it up to the Minister in charge of the enquiry who I assume will be Brian Lenihan in his role as Minister for Finance. But it seems highly unlikely that he will want the omerta broken since he and his colleagues are the ones who were making the decisions.

Even if such an application were granted by the High Court, I wonder what sort of record is kept of cabinet meetings. Are they recorded in audio or video? Is there a stenographer in the corner typing away furiously? Is it just notes that are scribbled by Ministers? Do assistants and heads of department attend cabinet to help their Minister, or are they just summoned when required? Would breaching the confidentiality require some form of mature recollection by the cabinet members?

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