Attorney General v Hamilton

Judgment Date01 January 1993
Date01 January 1993
Docket Number[1992 No. 210JR/SC
CourtSupreme Court
Attorney General v. Hamilton
The Attorney General
Liam, Hamilton,sole member of the Tribunal of Inquiry into the Beef Processing Industry
[1992 No. 210JR/SC No. 226 of 1992]

High Court

Supreme Court

Constitution - Government - Cabinet - Discussions - Privilege - Confidentiality - Non-disclosure - Absolute claim - Policy - Attorney General - Separation of powers - Constitution - Express words - Collective responsibility - Implications thereof - Necessity - Tribunal of Inquiry - Ministers and Secretaries Act, 1924 (No. 16) - Constitution of Saorstát Éireann éireann, 1922, Articles 51, 56 - Constitution of Ireland, 1937, Articles 6, 15, 26, 28, 34 and 40.

Tribunal of inquiry - Evidence - Admissibility - Public interest - Policy - Privilege - Absolute claim - Cabinet discussions - Attorney General - Separation of powers - Constitution of Ireland, 1937, Article 28.

Article 28, ss. 2 and 4 of the Constitution of Ireland, 1937, provide:—

"2. The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.

4. 1 The Government shall be responsible to Dáil Éireann éireann.

  • 2 The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government."

On the 24th May, 1991, both Houses of the Oireachtas resolved to establish a Tribunal of Inquiry to inquire into allegations of illegal activities, fraud or malpractice in and in connection with the beef processing industry and the respondent was duly appointed the sole member of that Tribunal.

Prior to and in the course of the hearings of the Tribunal, all documents relating to cabinet decisions were disclosed, viz. memoranda for Government in advance of meetings, written decisions taken and various departmental minutes. Part of the inquiry concerned what transpired at a Government meeting of the 8th June, 1988. When a question was put to a witness who had then been a Minister of the Government concerning the deliberations at that meeting, objection to the question was taken by counsel for the Attorney General at the Tribunal. The respondent ultimately ruled that notwithstanding the Attorney General's claim of absolute confidentiality, he was entitled to and would receive such evidence, and the Attorney General immediately thereupon obtained in the High Court leave to seek a declaration by way of judicial review that the respondent was not legally entitled to inquire into or consider the discussions, if any, occurring during the course of a meeting of the Government or to inquire into or go beyond the terms of a formal or informal decision so expressed, of such a meeting. Upon the respondent filing grounds of opposition it was

Held by O'Hanlon J., in refusing the reliefs sought, that upon a proper balance between the public interest of confidentiality as asserted by the Attorney General on the one hand and the public interest in obtaining full disclosure in the Tribunal of Inquiry and the rights of the individual as guaranteed by the Constitution on the other hand, and moreover having regard to the absence of any express words providing for such confidentiality in the Constitution itself, the public interest did not require the upholding of such a claim of absolute confidentiality.

The Attorney General appealed and in the Supreme Court submitted that such confidentiality arose from the provisions of Article 28, s. 4 of the Constitution; historically by convention and practice both before 1922, and 1937; from the doctrine of separation of powers within the Constitution; and by Dail practice. The respondent relied upon the amplitude of the resolutions for the inquiry; the powers conferred upon the Tribunal itself; the lack of any express provisions in the Constitution and the fact that the Government itself had not made any claim of privilege.

Held by the Supreme Court (Finlay C.J., Hederman and O'Flaherty JJ.; McCarthy and Egan JJ. dissenting), in allowing the appeal and granting the reliefs sought, 1, (unanimously), that the Attorney General had a clear standing and duty to enforce the Constitution whether on behalf of individual or otherwise unprotected rights or in a claim of public right, or otherwise.

Attorney General (S.P.U.C.) v. Open Door Counselling [1988] I.R. 593 and Attorney General v. X[1992] 1 I.R. 1 applied.

2. That the express provisions of Article 28 requiring the Government to meet and act as a collective authority and the collective responsibility for acts and decisions of the Government and of Departments of State thereby imposed required as an inevitable adjunct the need for and frank discussion between members of the Government prior to the making of decisions and the complete confidentiality of those discussions.

3. That notwithstanding the absence of any express words in the Constitution itself providing for such confidentiality, the separation of powers envisaged under Article 6 and interpreted as a doctrine in some detail by the courts, warranted such a finding of absolute confidentiality of cabinet discussions prior to decisions.

4. That such an interpretation was not inconsistent with the express words of Article 26, s. 2, sub-s. 2 and Article 34, s. 4, sub-s. 5 of the Constitution (prohibiting disclosure of separate or dissenting opinions in the Supreme Court in certain circumstances) given the origins of such provisions by way of legislative amendment shortly after the coming into force of the Constitution.

5. That earlier decisions of the courts on the disclosure of documents to the courts as the judicial power and the ultimate arbiters of conflicting public interests affected by such disclosure could not affect confidentiality as a necessary concomitant of cabinet government within the framework of the Constitution.

Murphy v. Dublin Corporation [1972] I.R. 215 and Ambiorix Ltd. v. Minister for the Environment[1992] 1 I.R. 277 distinguished.

6. That on analysis of the constitutional provisions dealing with the relationship of the executive to the legislature, and noting that the rule of cabinet confidentiality was respected by the standing orders and practice of both Houses of the Oireachtas, the sanction for accountability resided in a motion of no confidence in the Government as a collective unit perhaps precipitating a general election, rather than permitting some external body to look into its discussions.

7. The rule of confidentiality was a constitutional right going to the fundamental machinery of government and was not capable of being waived by any individual member of a government nor by a decision of any succeeding Government.

Per Hederman J: "Government" and "cabinet" are not synomymous; it is the Government only that is expressly established as the executive organ of the State by the Constitution.

Per McCarthy J. dissenting: There is no absolute confidentiality attached to discussions at Government meetings; such a rule is inconsistent with the jurisprudence of the Court on disclosure of documents; the correct test was applied by the trial judge in himself balancing the requirements of a parliamentary inquiry with the requirements of confidential communications at government level.

Murphy v. Dublin Corporation. [1972] I.R. 215 and Ambiorix Ltd. v. Minister for the Environment[1992] 1 I.R. 277 considered.

Per Egan J. dissenting: The Tribunal, although not engaged in the administration of justice (not being a court), was entitled to know what decisions were made by the Government relevant to the matters it was investigating and, if a dispute arose regarding whether or not any particular decision was made, the Tribunal was entitled to hear such evidence including, if necessary, evidence of the deliberations of the Government, for the purpose of finding out what decision was arrived at, but only for such purpose.

Cases mentioned in this report:—

Attorney General v. Jonathan Cape Ltd. [1976] Q.B. 752; [1975] 3 W.L.R. 606; [1975] 3 All E.R. 484; (1975) 119 S.J. 696.

Ambiorix Ltd. v. Minister for the Environment [1992] 1 I.R. 277; [1992] I.L.R.M. 209.

Attorney General v. X [1992] 1 I.R. 1; [1992] I.L.R.M. 401.

Attorney General (S.P.U.C.) v. Open Door Counselling [1988] I.R. 593; [1987] I.L.R.M. 477.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General[1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Environmental Defence Society Inc. v. South Pacific Aluminium Ltd. (No. 2) [1981] 1 N.Z.L.R. 153.

Goodman International v. Hamilton [1992] 2 I.R. 542; [1992] I.L.R.M. 145.

McLoughlin v. Minister for Social Welfare [1958] I.R. 1.

Macauley & Co. Ltd. v. Wyse-Power (1943) 77 I.L.T.R. 61.

Murphy v. Dublin Corporation [1972] I.R. 215; (1972) 107 I.L.T.R. 65.

In re Offences Against the State (Amendment) Bill, 1940 [1940] I.R. 470; (1940) 74 I.L.T.R. 61.

The People (Attorney General) v. Luykx (Unreported, Central Criminal Court, October, 1970, Henchy J).

Shankey v. Whitlam & Others (1978) 142 C.L.R. 1; 21 A.L.R. 505.

The State (Keegan) v. Stardust Victims Compensation Tribunal[1986] I.R. 642; [1987] I.L.R.M. 202.

U.S. v. Nixon (1974) 418 U.S. 683.

Materials cited: Chubb, The Politics of the Irish Constitution (1991); Dooney & O'Toole, Irish Government Today (1992); I.G. Eagles, "Cabinet Secrets and Evidence" [1980] Public Law 264; Ellis,"Collective Ministerial Responsibility and Solidarity" [1980] Public Law 367, 373; Farrell, "De Valera's Constitution and Ours" in Chubb (Ed.); Kohn, The Constitution of the Irish Free State; Mansergh, The Irish Free State: Its Government and Politics (1934); Minutes of the Proceedings of the First Dáil, 1919-1921; O'Muimhneachain, The Functions of the Department of the Taoiseach (1969) and Swift McNeill, Studies in the Constitution of the Irish Free State.

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