Banking inquiry - Reveal Cabinet discussions

There is a scene towards the end of Oliver Stone’s movie JFK where Kevin Costner, playing the role of District Attorney Jim Garrison, walks, defeated, out of the courthouse, telling his son that he will have to wait at least 30 years before finding out if his theory about the pPresident’s assassination was correct.

Irish citizens may have to wait even longer to discover the full story behind a less humanly tragic but equally momentous event in our nation’s history — the late-night ministerial discussions which approved the ill-advised and lamentable bank guarantee. Why? Cabinet confidentiality.

At least that is what the Oireachtas committee holding the banking inquiry has been advised. The committee has been told that Cabinet confidentiality protects any discussions that led to the guarantee which — as we have all learned to our cost — had catastrophic economic consequences.

According to legal advice given to members, questions cannot be asked about the infamous Cabinet meeting of the night of September 29, 2008, where the 440bn blanket bank guarantee was approved. This is despite the passing of the Seventeenth Amendment to the Constitution in 1997 which provides that the High Court can override the secrecy rule when this is in the public interest.

It is hard to imagine anything that is of greater public interest, yet the committee has, so far, exhibited a docile acceptance of this legal advice, apparently content that they will, at least, retain the power to obtain any paperwork which helped ministers to reach their decision. The principle underpinning collective Ccabinet responsibility is succinctly explained by Eoin Daly, Law Lecturer at NUI Galway, as a requirement by ministers to collectively endorse the Government’s policies and publicly affirm its authority, “its aim being to prevent fractious and divided gGovernment and thereby to uphold the efficacy and unity of the executive power of the State”.

In other words, ministers must be seen to act as one organism, supporting the authority of the Ccabinet as a single, cohesive unit. That is all well and good but what about the citizens who continue to pay dearly for the fallout from that 2008 decision?

The amended article 28.4.3 states: “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.”

It could be argued that these are precisely the circumstances that pertain to the banking inquiry. At the very least, an application by the committee to the High Court should be made, demanding access to this vital information for, without it, they are neutered before they even begin and their deliberations risk being little more than a talk shop.

In the longer term, a total re-examination of the need for such a sweeping confidentiality rule is long overdue. In Sweden, citizens can — with limited restrictions — gain access to cabinet papers within days and they seem to get on very well without such institutionalised and obsessive secrecy.