Judge Peter Smithwick, who is investigating allegations of Garda collusion in the murder of two RUC officers in 1989, is seeking sight of documents prepared for then Justice Minister Gerry Collins immediately after the killings.
The Government has released some of the papers but is withholding one on the grounds that it is protected by cabinet confidentiality as provided for in the Constitution.
Only the High Court can force the release of documents protected under this provision and the tribunal has notified the Government that it will be making a formal application to the court for such an order.
Labour yesterday called on the Government not to oppose the High Court application. “It would be unfortunate if the work of the Smithwick Tribunal was to be delayed by the Government contesting the request in prolonged High Court hearings,” said party leader Eamon Gilmore.
“The motions establishing the tribunal were passed by the Oireachtas in 2005, but the tribunal has not yet got around to holding any public hearings.” He added that the papers, now 19 years old, would be due to be made public anyway in 10 years’ time in the routine release of documents under the 30-year disclosure rule.
However, the principle of cabinet confidentiality is a sensitive one and protections were tightened up in the 1997 referendum although that did also provide for the mechanism of referral to the High Court.
The Smithwick Tribunal was set up to inquire into allegations that gardaí passed on information that assisted the killers of RUC members, Chief Superintendent Harry Breen and Superintendent Robert Buchanan.
The two police men died when they were ambushed by the IRA close to the Border while they were returning from a secret meeting with senior gardaí in Dundalk, Co Louth.
Mr Gilmore pointed to the all-party criticism of the British Government’s refusal to release documents sought by the Barron Inquiry into the Dublin and Monaghan bombings. “It would now be hypocritical of the Government to try to block the release of the documents sought by Judge Smithwick,” he said.
A Government spokesman confirmed they had received Judge Smithwick’s notification but were making no further response before the High Court proceedings.