Friday 23 March 2018

Taoiseach wins action to keep cabinet secrecy

Appeal to Supreme Court now likely

Tim Healy

THE Taoiseach has successfully defended a High Court bid that sought to relax the 30-year cabinet confidentiality rule.

The victory for the Government, which is likely to be appealed to the Supreme Court, follows a three-year campaign by barrister and Green Party politician Gary Fitzgerald to secure the release of confidential cabinet discussions on greenhouse gas emissions.

The action, considered an important test case on the secrecy attached to government meetings, followed a ruling by Emily O'Reilly, the Commissioner for Environmental Information, to produce a secret environmental document prepared for the Government.

Yesterday, the High Court overturned Ms O'Reilly's decision to compel the Taoiseach to release a document containing information of a 2003 cabinet discussion of the emissions.

In an important judgment dealing with the relationship of EU law to national law, Mr Justice Iarfhlaith O'Neill found Ms O'Reilly had no jurisdiction to decide the effect of regulations, enacted here in 2007, to implement a 2003 EU Directive guaranteeing a right of access by the public.

The issue -- as to whether the Irish regulations were "at odds with the provisions and stated intent of the directive" -- was for the courts to decide, the judge said.

The case arose from a March 2007 request for information from Mr Fitzgerald to the Department of the Taoiseach.

He sought documents, including minutes of meetings reporting cabinet discussions, on Ireland's greenhouse gas emissions for the years 2002 to 2007.


In May 2007, Mr Fitzgerald told the department he was appealing to the commissioner. In June 2007, the department informed Mr Fitzgerald it would release eight documents to him and withhold 18.

The commissioner ultimately decided one of those 18 documents -- Document No 5 -- constituted a "report" of discussions at Cabinet and directed its release. In refusing to release Document No 5, the Taoiseach's department argued it was a note of comments made at a government meeting on June 24, 2003, and was "specifically excluded from disclosure" by the Constitution and the 2007 regulations.

Article 10 of the EC Regulations 2007 prohibits disclosure of environmental information if it breaches the confidentiality of cabinet discussions, but the 2003 directive itself does not contain a similar express exclusion in regard to cabinet confidentiality.

While conscious her decision conflicted with the constitutional protection of confidentiality of cabinet discussions, the commissioner said the Taoiseach's department had failed to negative arguments, where there is a clash between a directly effective EU measure and a national law, the EU measure is "supreme".

In his judgment yesterday, the judge upheld the Taoiseach's appeal against the commissioner's decision. Noting his judgment could be appealed to the Supreme Court, the judge also exercised his discretion to refuse the commissioner's application to refer to the European Court of Justice the issues of EU law which had arisen in the case.

Irish Independent

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