And O’Brien is benefiting from favourable coverage in the paper for his precipitate U-turning Planning Bill which embraces Bord Pleanála, social housing, judicial review and the foreshore
The Minister of Housing, Darragh O’Brien has been scrambling of late to hustle through the passage of the still fast-evolving unfinished but critical Planning and Development and Foreshore (Amendment) Bill, 2022 (the ”Bill”) through the Houses of the Oireachtas before the Christmas recess. In previous articles, Village has been critical of the deficiencies in the legislative process that has resulted from this unseemly haste.
In recent weeks, the Irish Times has been helpful in relieving the harried Minister of the distraction of releasing the usual press statements with their tedious official status. And more helpful still in laundering the scrambling and hustling as if it were pre-planned, even where the detail of the legislation contradicts previous releases and stated statutory intent. This will be no end of relief to the U-turning Minister.
Articles were published in that paper on 29 November and 7 December which reported that the Minister had received government approval to amend the Bill to allow for the appointment of an interim Chairperson of An Bord Pleanála (ABP) and to provide for exemptions to existing planning regulations, in certain circumstances, for local authority social and affording housing developments. Original plans to replace the “Chairperson” with an “interim Chairperson” were fast changed after a Village article drew attention to the facts that that the “interim Chairperson” would not be empowered a) to investigate misconduct of ABP members and b) to allocate business to divisions of ABP — a streamlining efficiency that would become central to operations if ABP were expanded as the Bill proposes, to 14 members.
The report involved a contribution to the Cabinet discussion by O’Brien.
The report was highly favourable to O’Brien.
The report was the third in ten days outlining proposals to Government from O’Brien.
The investigation into the source of the leak would do well to start with O’Brien and those close to him.
The failure to recognise and analyse U-turns that characterised the articles suggests the article has been derived from informal briefing rather than with the meticulous care typical of carefully crafted official statements published by Departmental press offices. Village has requested a copy of any official statement on which these articles were based from the Department as neither of these “announcements” were published as government press releases.
The Department confirmed to Village that the article of 7 December was accurate and, at the time of writing, was verifying the facts of the 29 November article. On the face of it, so far, there is every reason to believe that the articles are factually correct.
Moreover, even with all this on his plate, O’Brien found time to make an intervention in the drafting of another Department’s proposed bill.
On 8 December, yet another article helpful to O’Brien and based on “sources” rather than official statements reported details of the changes to Catherine Martin’s Registration of Short-Term Tourist Letting Bill that O’Brien had suggested to the Cabinet.
The headline of the article tells the tale: ‘Minister wanted new laws to force short term lettings into private market introduced immediately
Cabinet papers show that Darragh O’Brien clashed with Minister Catherine Martin over the proposals and wanted them to be introduced without six month grace period’.
The article asserts that “observations on the new law submitted to Cabinet [were] seen by the Irish Times”. The headline talks of a “Cabinet clash” and the meat of the article says, “Cabinet papers show that Ministers clashed over a proposal to allow short-term lettings to continue operating for up to six months”. If there is a clash in Cabinet it clearly must arise from “discussions”. The nature and detail of those discussions have obviously been leaked. Clearly someone at the very least showed, and possibly gave, the reporter the Cabinet papers in question – papers that are confidential.
In any event, the point is that disclosing, and worse still publishing, Cabinet discussions was illegal.
The law is embarrassingly clear on this matter. The Seventeenth amendment to the Constitution, passed in a referendum in 1997, provides that: “The confidentiality of discussions at meetings of the Government [In this context Government means Cabinet] shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter…”.
So, in essence Cabinet confidentially “shall be respected in all circumstances”. As recently as last year, the High Court confirmed that “[Cabinet meetings] and their records are required to be private and confidential”.
The purpose of Cabinet confidentiality is to encourage Ministers to speak freely without risk of their stance leaking or undermining decisions deemed collective.
The Cabinet Handbook, a guide for Ministers which always recognises collective responsibility, requires that: “(M)inisters must at all times support Government decisions in public debate as a responsibility of office”.
In this instance the article prejudices O’Brien’s Green Cabinet colleague, Catherine Martin, who is revealed as having favoured a less direct, more namby pamby approach on Airbnb.
If Darragh O’Brien wanted to express his dissatisfaction with this government policy in the press he should have done so outside of government (ultimately, if he felt strongly, by resigning).
O’Brien has won for himself recognition of this robust approach, but it has been done through nefarious means. Someone well-placed has not respected Cabinet confidentiality to the advantage of O’Brien; and nor, notably, has the Irish Times.
The illegality of the disclosures is clear cut.
The case is egregious as it isolates another Minister: one from another party, in this case Catherine Martin.
O’Brien seems to owe Martin an apology for standing beside her in support of her at the launch of her legislation the day before his opposition to her legislation was splashed across the newspaper pages.
Leaking from Cabinet is serious enough that the Cabinet has precise procedures to deal with it.
According to the Cabinet Handbook: “(I)f ever a breach of security occurs, a special investigation should be initiated by the Secretary General of the author Department, with the Garda Síochána being called in to assist as necessary”.
The report involved a contribution to the Cabinet discussion by O’Brien.
The report was highly favourable to O’Brien.
The report was the third in ten days outlining proposals to Government from O’Brien.
The investigation into the source of the leak would do well to start with O’Brien and those close to him.
Village has in the past taken a strong stand on illegal leaking of confidential documents by Ministers. The leaking of the substance of Cabinet discussions breaches constitutional protections and is an even more serious transgression.
The Irish Times may be an organ where politicians place favourable stories, but, as with earlier stories such as the Varadkar débacle, the Irish Times is not the place to look to for early probing coverage of an illegal leak.
