An Bille um an Seachtú Leasú Déag ar an mBunreacht (Uimh. 2), 1997: An Dara Céim. Seventeenth Amendment of the Constitution (No. 2) Bill, 1997: Second Stage.

Tairgím: "Go léifear an Bille an Dara Uair."

I move: "That the Bill be now read a Second Time."

This Bill has been restored to the Order Paper having been prepared by the last Government and presented to the House on l May. I compliment my predecessor, Deputy John Bruton, and the former Attorney General, Mr. Dermot Gleeson, SC, for the very careful and detailed consideration they gave to the preparation of the Bill.

The Fianna Fáil general election manifesto gave a commitment to consider the holding of a referendum on Cabinet confidentiality in conjunction with this year's presidential election. The Progressive Democrats' manifesto gave a commitment to ensure that the absolute ban on disclosure of Cabinet discussions can be lifted where disclosure is clearly in the public interest.

I am glad, on behalf of the Government, to propose this Bill to the House. The text of the proposed constitutional amendment set out in the Bill provides that the absolute confidentiality which applies to Government discussions will be relaxed in particular and exceptional circumstances. It proposes that a new provision should be inserted into the Constitution after Article 28.4.2º. This Article provides for collective Cabinet responsibility. The new provision will ensure that the confidentiality of Cabinet discussions will continue to have constitutional protection except where the High Court determines that disclosure should be made in the interest of the administration of justice as decided by a court, or by virtue of an overriding public interest pursuant to an application in that behalf by a tribunal appointed to inquire into a matter of public importance. This may be a necessary prelude to any investigation by a tribunal which is mandated in respect of issues on which it is necessary to seek evidence in relation to discussions at Government meetings. The Government is proposing the immediate passage of the Bill through both Houses of the Oireachtas so as to facilitate the proposal being put to the people by way of a referendum on 30 October next, the date envisaged for the presidential election.

The tribunal of inquiry into the beef processing industry, conducted over an extended period, brought to notice a shortcoming in the existing constitutional framework. The desire of the tribunal to inquire into the proceedings of Government meetings was precluded by a majority ruling of the Supreme Court. The variety of judicial rulings delivered at that time illustrates the complexity of the issue and the sensitivity of the balance to be achieved. The need for confidentiality in general affairs is fundamental to Government and will not be disputed. Nonetheless, there is a simultaneous consensus on the need to permit a focused and structured inquiry, as necessary, in the public interest.

I will give Deputies some of the background to this Bill. At an early stage in the conduct of the tribunal of inquiry into the beef processing industry the chairman indicated an intention to ask questions concerning the details of discussions which took place at Government meetings in June 1988 relating to decisions on export credit insurance for beef exported to Iraq. Counsel on behalf of the Attorney General objected to the asking of those questions on constitutional grounds. The chairman then deferred asking any questions, although he made a ruling that he was entitled to ask them in order to give the Attorney General an opportunity of applying to the High Court by way of judicial review for resolution of the issues.

I should emphasise that witnesses at the tribunal did not refuse to answer questions relating to Government decisions. Rather, it was not permissible for them to so do as they could be held to be acting contrary to the constitutional position.

Following an earlier High Court case, the Supreme Court in its judgment of 21 August 1992 upheld, by a three to two majority, the Attorney General's contention in relation to the absolute confidentiality of Cabinet discussions. Leading the majority, Chief Justice Finlay stated:

Confidentiality of the contents and details of discussions at meetings of the Government is a constitutional right which, in my view, goes to the fundamental machinery of Government and is, therefore, not capable of being waived by any individual member of the Government nor, in my view, are the details and contents of discussions at meetings of the Government capable of being made public, for the purpose of this inquiry, by a decision of any succeeding Government.

Deputies may recall that the courts had previously established in the Ambiorix case in July 1991 that no Government or Cabinet documents were privileged from disclosure in court merely on account of their origin. Documents which the Government wanted to protect on grounds of Executive privilege would have to be inspected by the judge who would balance the need for secrecy against the interests of the litigant and the public in the administration of justice.

As a result of the Supreme Court ruling, the report of the tribunal noted that it was limited in its inquiries to decisions made by the Government and documentation in regard to such decisions and was precluded from inquiring into "the contents and details of discussions at meetings of the Government". The report stated that the ruling created difficulties for the tribunal because documentation relating to discussions at Government had been received by the tribunal, some of which was referred to in evidence, prior to the judgment of the Supreme Court and the tribunal was precluded from having regard to it.

The Constitution Review Group, chaired by Dr. T.K. Whitaker, dealt briefly with the matter in its report published in May 1996. The group concluded there were strong grounds for extreme caution in any approach to relaxation of the Cabinet confidentiality rule. It noted:

.that such confidentiality is an almost universal feature of Government and the essential underpinning for the doctrine of collective responsibility enshrined in Article 28.4.2. Collective responsibility is, in turn, essential to a Government's ability to plan and act cohesively. The possibility that Cabinet confidentiality might in some circumstances be lifted could in itself, obviously, inhibit discussion and, therefore, the effectiveness of Government.

The group considered two approaches:

1. any relaxation should be subject to the most stringent test of public interest, as judged by the High Court or Supreme Court, and should be confined to the context of a criminal prosecution against a Member, or former Member, of the Government (as is the case in the United States and Australia)

2. the context, specified at 1, could be unduly restrictive and it might be better to express any constitutional relaxation in less specific terms while still applying the test of overriding public interest as determined by the High Court or Supreme Court.

The group also stressed that the rule of Cabinet confidentiality does not apply to Government decisions which are formally recorded — their communication to those concerned establishes them as items of public knowledge. That is the legal history attaching to this issue.

The previous Government undertook an extensive examination of the complex issues involved in proposing a constitutional amendment to change the position defined by the Supreme Court. It must be acknowledged that some of these issues were not easy to resolve. The doctrine of collective responsibility is underpinned in an important way by preserving the confidentiality of Cabinet discussions. The potential disclosure by an individual member of the Government of these discussions in a particular case at some future time could have an inhibiting effect on free discussion at Cabinet.

Collective responsibility of Government, and thereby the requirement for confidentiality in respect of Government discussions, is a common feature throughout Europe. It is important that we do not lose sight of the need for that standard to continue as we move to consider some specific circumstances in which it might be altered. Such confidentiality has been an element in the political stability we have enjoyed over many years.

I believe that the proposals agreed by the last Government are reasonable, given the complexities involved. They are, in many ways, an advance on the manner in which the Cabinet confidentiality issue is dealt with in other jurisdictions. Many EU states operate a much more restrictive arrangement on access to Cabinet discussions than what is proposed in this Bill.

As I have already said, the courts established as far back as 1991 that no Government documents were privileged from disclosure in court just because of their origin. Any documents which the Government seeks to protect have to be inspected by a judge of the High Court. With the limited exception, therefore, of some documents which the Government might seek to protect on grounds, say, of national security, Government decisions which are formally recorded and the memoranda on which they are based are made available for court proceedings where there isbona fide application for their discovery.

It is important to emphasise this as there may be some misconception about it. The Bill before the House relates solely to discussions at Cabinet. Documents prepared for Cabinet and Cabinet decisions are already discoverable and made available under the current constitutional provisions. The draft constitutional amendment before the House provides that, while Cabinet discussions will continue to have constitutional protection, the High Court will have the power to determine disclosure in certain instances by virtue of an overriding public interest. I am confident that the people, in a referendum, will respond positively to the proposed amendment.

The all-party committee on the Constitution published two excellent progress reports last April. Neither dealt with the Cabinet confidentiality issue as the committee had been informed on its establishment that it was the subject of consideration by the then Government. I compliment the members of the committee and the members of the Constitution Review Group on their excellent work. I also compliment the secretariat provided to the committee by the Institute of Public Administration. Having regard to the all-party consensus on the re-establishment of the committee, immediately on assuming office I retained the services of the secretariat to continue necessary research work.

The Constitution is now 60 years in operation. It has stood the test of time very well but, as we move into the next millennium, it is timely that it should be reviewed. I propose to consult the Opposition leaders very shortly about the early re-establishment of the all-party committee and I look forward to its reports. I assure Deputies that the Government will give careful consideration to the recommendations in the first two progress reports from that committee and decisions in that regard will be announced in due course.

I commend the Bill to the House. I have already thanked my predecessor and the Attorney General for their work on this Bill. They struck a balance and I am prepared to work on the basis of what they put forward. I have not reopened the entire debate on this matter but I am taking the Bill based on the considered work which has already been done on the issue.

The Bill provides a constitutional bridge between two major principles. The first principle is Cabinet confidentiality and the second is the proper administration of justice. Article 28 of the Constitution provides that 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. It is obvious and accepted that Cabinet confidentiality essentially underpins the doctrine of Cabinet responsibility. The second major principle is that justice must be done, and be seen to be done, properly and fairly and that tribunals of inquiry can carry out their work fully and effectively.

It is correct that these principles came into conflict during the beef tribunal. The majority decision of the Supreme Court at the time resulted in the chairman of the tribunal indicating that, as a consequence, it was limited in its inquiries. The decision created difficulties for the tribunal because documents relating to Government discussions which were before it could not be referred to thereafter. There is a need to preserve as far as possible Cabinet confidentiality but there is also a need for the proper administration of justice before the courts and during tribunals of inquiry. It is obvious that a consequence of the Supreme Court decision, which provided for absolute confidentiality, was that the work of the courts and tribunals of inquiry could in certain circumstances be affected and limited.

This position gave rise to the Bill, which I support. It is a balanced response to the conflict between two major principles and values and it conforms to a large degree to the views of the Constitution Review Group. It was not considered in detail by the group but it was touched on. The import of its recommendations was that any relaxation of the rule of Cabinet confidentiality must be carried out with great caution. The Bill is sensible given the experience of other countries where a position close to absolute confidentiality is the norm. In the main, governments work on the basis of collective responsibility underpinned by Cabinet confidentiality.

Another tribunal of inquiry is likely and all Members want to ensure that it can do its job as fully, properly and effectively as possible. We want to ensure that whatever judge is charged with responsibility for the tribunal is not inhibited or limited in terms of the scope of his or her inquiries in producing a full and proper report to the House. This is another reason I favour the Bill. I am happy it is before the House and that there is agreement regarding its passage.

One could strain at the edges and say that perhaps one should lean a little more in favour of greater disclosure. However, the more one leans to one side, the more the principle on the other side is damaged. There are different views on this aspect but I am cautious in terms of the Constitution which in the main has served us well for 60 years.

The Deputy should be brave.

The Supreme Court, which is charged with interpreting the Constitution, has also served us well. However, I did not agree with its decision in that case. It was a majority decision and I agreed with the minority view in that instance.

Given my experience as chairman of the all-party committee, we should work on the basis of what currently exists. We should build on it and reform it. We should not in any circumstances throw out the baby with the bath water. A programme of constitutional reform is needed but it should be cautious.

The Bill is a balanced and cautious response to the 1992 Supreme Court decision and I support it. It could be dangerous to go beyond the terms of the Bill. It was the collective wisdom of the last Government, endorsed by the collective wisdom of this Government ——

I am not allowed to tell the Deputy about it.

I would not dream of asking about it. The Bill has not been passed yet and it is not even in the public interest that Deputy Howlin is unable to speak.

In fairness, having had an opportunity to look at the files, the previous Government worked hard on this matter.

The Taoiseach should be a little careful about making such a comment. I accept the detailed considerations of the previous Government and Attorney General have been followed up promptly by the current Government and the new Attorney General. I endorse the Bill and support its passage through the House.

The Bill will go before the Seanad before it is put before the people in conjunction with the presidential election. I approve of this approach. The Taoiseach referred in kind terms to the work of the Constitution Review Group. One of its proposals was that a programme of constitutional reform should be established and that a series of measures should be put before the people from time to time in conjunction with local or European elections to reduce expense. The approach to this legislation fits in with that philosophy given that the Taoiseach has proposed that the Bill should be put before the people in conjunction with the presidential election, thus saving the expense of a separate referendum.

I hope the Taoiseach will continue that approach. I am glad to note his undertaking that he will follow up the two reports of the all-party committee. It is important to note that the committee worked almost on the basis of consensus and many of its recommendations have the support of all parties. When the committee last met before the election, it decided that the next item to be considered was the Presidency and the procedures for nominations, etc. Obviously, that work has been left in abeyance. It is in the public interest that the committee be reformed quickly and further work should get under way. There is a strong case for accepting the Bill as a reasoned, balanced response to the situation and it is important that it pass quickly. The judge charged with the next tribunal should have powers to obtain the necessary order to open up Cabinet discussions if required in the public interest. We are trying to achieve what is best for the public interest and on that basis I am happy to endorse this Bill.

This Bill amends the Constitution, which is fundamental and bears upon every citizen. On 29 August, Deputy Dick Spring issued the following statement:

It appears that the Government is contemplating passing motions about a tribunal next week but they have said absolutely nothing about Cabinet confidentiality. A failure to act in relation to Cabinet confidentiality will almost certainly tie the hands of any future tribunal inquiring into recent Government decisions. It is shameful if the Government has chosen to ignore this issue, especially as there is plenty of time to pass the necessary legislation to enable a referendum to take place on the same day as the proposed Presidential election. The wording has already been largely drafted and the Labour Party will be insisting in the Dáil that it is passed before any new tribunal is set up.

I am happy the Government has responded to that request and has today retabled the Bill first published on 1 May.

Enactment of this Bill as well as a referendum to endorse it and amend the Constitution is urgently required in the aftermath of the McCracken Tribunal and in advance of the new tribunal getting down to the important task the House will set it. This issue has to be addressed in a focused and balanced way. Deputy Jim O'Keeffe talked at some length about the requirement for balance in this type of amendment. The Constitution Review Group recognised that the doctrine of collective responsibility which is the basis of our form of Government requires some measure of confidentiality in the matter of Cabinet discussion. That is acknowledged, appreciated and supported by every parliamentarian in the House. However, our society and democracy requires as much openness and transparency for the operation of Government as can be obtained. Our purpose in advocating this amendment to the Constitution is to try, to the best of our abilities, to meet both requirements, which apparently conflict, and to get the balance right.

I remember the debate on this matter, though obviously I am not at liberty to share it with the House. I have reflected further since the publication of the Bill. It is my party's objective to push the barrier as far as we can on the side of disclosure and openness. Perhaps I have a different perspective because I do not come from a legal background, but there is growing frustration among the general public that issues of Government are not visible and are somehow hidden behind a veil of secrecy.

In the last portfolio I held in Government, I freed up access to information on the environment, planning reports and studies. There was a great deal of concern that would have an impact on the content of reports, if those reports were subsequently to be in the public domain, but it was done and nothing changed. We must change the way we look at administration because secrecy does not help our democracy. We must be as open as possible unless there is an overwhelming and compelling reason that information should not be available.

That is the perspective from which I now look, afresh, at this Bill. For that reason the Labour Party has tabled amendments to the Schedule, which contains the substance of the change to be made to the Constitution. The objective of those amendments is to allow for a slight extension of the cases of disclosure of Cabinet discussion beyond that envisaged by the Bill as published. I will deal with these amendments on Committee Stage and hope the Taoiseach will be open to the arguments I will put forward. It is a matter of judgment, of getting the balance right between giving as much access and openness as is possible to all citizens and ensuring that the Government is allowed to function. A situation might arise where people might be circumscribed in what they say if they felt that all the discussion material would be open.

I will argue the specific amendments when we get to them but they strike a reasonable balance and will allow us to proceed further down the road to openness. In my experience of the Taoiseach I know he will be well disposed to at least listen to the arguments and I hope he will be convinced by them.

This is an important amendment to the Constitution in an extensive process of work to be done. As leader of the Government, the Taoiseach has a responsibility to deal with the general negative feeling toward politics and politicians that is evident in recent opinion polls. We must collectively restore confidence in our profession, in this House and in its membership. We will do that by shining as many lights as we can into all the crevices and recesses that people want to look into.

We are in special session for two days. Virtually the entire text of all the measures coming before the House in these two days resonates with the same principle: the need, demand and requirement to restore confidence in public administration. On behalf of the Labour Party, I welcome the Bill. I acknowledge the swiftness of the response of the Government to the call from the leader of the Labour Party. The Government retabled the Bill drafted by its predecessor and I look forward to supporting it with slight amendments, if I can convince the Taoiseach to accept them.

I congratulate the Taoiseach and the Government on introducing this legislation. The precise text before the House was submitted to us shortly before the dissolution of the last Dáil. Although I raised the matter on the Order of Business with the then Taoiseach on a number of occasions, there seemed to be a delay in bringing forward the measure. When the previous Administration took office, it was determined to address the question of Cabinet confidentiality. That Administration was uniformly critical of the decision of the Supreme Court in the decision involving the beef tribunal, the Attorney General and Mr. Justice Hamilton.

We would never be so bold.

Perhaps not, but when the matter was considered in some detail it became clear that this was not a simple issue and that it raises deep questions about the proper relationship between the Executive and the Legislature under our Constitution.

As the Taoiseach said, the principle, as elaborated by the Supreme Court, related to Cabinet discussions, not Cabinet documentation. It is always open to the Government to make an announcement and to make clear its recorded decisions but it is not open to it or its members to "leak", to use the old fashioned phrase.

Many of the understandings about Cabinet Government which grew up under the British experience were formalised as legal rules in our Constitution. That made a difference because British practice rested on convention and precedent and whether it was in order for a Minister to make a statement. When we put this into the Constitution in 1937 it elevated the principle in legal terms. While all the Constitution says in express terms is that the Government should be collectively responsible to this House, the Supreme Court read into it, as a matter of legal principle, the important implication of Cabinet confidentiality in the case involving the beef tribunal.

At the time the Supreme Court left open the question of whether that principle would apply in an ordinary civil or criminal case. In fact, the Supreme Court never ruled on that issue. By this amendment, we are leaving it to the courts to determine, in an appropriate circumstance, whether the veil of Cabinet confidentiality can be ripped aside in a case where criminal culpability or civil liability would be an issue.

On the relationship between this House and the Government, the key issue is the tribunals of inquiry which we have become fond of establishing in recent years. The amendment is a necessary preparation for the next tribunal in that it allows it and presumably future tribunals to lift the veil of Cabinet confidentiality. We hear calls to establish tribunals and, when we bring forward this amendment, it will mean that in future we must be careful about establishing a tribunal which might look at Cabinet discussions. An allegation should not give rise to a tribunal because we are about to change the Constitution in a manner which would allow a tribunal of inquiry established by this House to look at Cabinet discussions. There must be some element of Cabinet confidentiality attaching to Cabinet discussions.

In that regard, I will not table an amendment but I ask the Taoiseach to look at the question of memoirs, the position of a Minister who resigns from Government and the 20 year rule and whether those issues arise in relation to this measure. I appreciate he may have to take constitutional advice from the Attorney General on this point and he may prefer to address it in another House, but the issue should be looked at.

In 1951 a few months before the first interparty Government collapsed, Dr. Browne had a disagreement with his colleagues and decided to publish the correspondence and bring his dispute to the nation and not have it limited to the Cabinet room. It was always recognised in the history, practice and conventions attaching to Cabinet confidentiality that a Minister who wished to resign from a Government had the right to make his appeal on his resignation.

It has always been the view that a retired politician is entitled to publish his memoirs, although there was an attempt in England by the then Attorney General to restrain the publication of the Crossland diaries. It is a question which arises. One can argue that a person who has served in Government, such as Deputy Howlin, is entitled to publish his memoirs without any form of censorship in relation to Cabinet discussions so that he can vindicate his reputation for posterity.

The other position relates to the release of information about the Cabinet after a period of time which may be of value to scholars, although they suggest that sometimes Cabinet minutes are a bit terse. It is an issue which may arise. If any of these issues is to be addressed, I suggest it would be best to leave this matter to the Oireachtas to determine at a future date rather than try to amend this Bill amending the Constitution. We should stick to first principles as far as the Constitution is concerned.

This amendment conforms in concise terms to first principles and deals with the essential issue, balancing the need to protect the confidentiality of the Government with the need to ensure proper investigations can take place if authorised by the House and that the courts are not impeded in their investigations by this principle. It is a balanced amendment but I would like the Taoiseach to look at the issues I mentioned.

On behalf of Democratic Left, I welcome the decision to hold a referendum and the fact that this Bill is being taken today. We were partners in the last Government which published the Bill and due recognition should be given to that by Deputy Brian Lenihan. I am thankful this Government has decided to adopt the course of action we set out.

The purpose of the Bill is to address the outcome of what was an extraordinary intervention by the then Attorney General in the work of the beef tribunal. The Attorney General sought and obtained from the Supreme Court a ruling that it was unconstitutional for the tribunal to inquire into Cabinet discussions. We would do well to remember that this action was taken at a time when Fianna Fáil was also in Government and when that Government made a public commitment to co-operate fully with Mr. Justice Hamilton in his investigations. The Attorney General's action, however, ensured that full co-operation would not be possible. In fact, the Supreme Court decision was a serious blow to the effectiveness of the tribunal. In its report Mr. Justice Hamilton pointed out that he was precluded from inquiring into and reporting on the factors which influenced the Government in reaching decisions on Iraq.

This decision overruled a High Court decision of Mr. Justice Rory O'Hanlon. It is worth recalling his approach on this. He rejected the Attorney General's argument and pointed out that it was not unknown for totally corrupt administrations to come to power and for their members to enrich themselves at the expense of the public purse. Had he known what we now know, he might have also included a reference to enrichment from private sources. Justice O'Hanlon clearly considered the result of accepting the Attorney General's arguments would be to prevent any tribunal of inquiry from obtaining the information needed to establish guilt or innocence. That is history and the Supreme Court overruled him.

The Supreme Court's decision had fundamental implications for the public's right to know. The public has a right to know in the public good how and why decisions which affect their lives are being made. That is a fundamental right which must be protected. Clearly, an absolute ban on disclosure of information undermines that right. It is vital that we redress this failing in our Constitution and that we offer the people the opportunity to do so at the earliest possible date.

In doing so, we should not forget the genesis of this Bill. Historically, the practice was not to exert an absolute ban in all cases and at all times and it was legal action that was clearly taken with the tacit agreement of the Government in 1992 which ensured this ruling was made — the effect of that was to significantly restrict the right of protection to the Irish people.

Fianna Fáil is again in Government and another tribunal is being established. The lesson is that we must always be vigilant. I listened with interest to Deputy Howlin's proposals regarding improvements to the Bill. We need to ensure that it is not too restrictive and that it is not leaning too far on the side of caution. I expect the Government will consider the amendments if they can improve the Bill.

Deputy O'Keeffe said we should be cautious when looking at the Constitution and ensure we do not throw out the baby with the bath water. However, I have a different approach. The Constitution is no longer able to meet the requirements of modern Ireland. Perhaps the baby has become an adult and it is time to take the adult out of the bath.

Five minutes to speak on a significant amendment to the Constitution is scarcely adequate. I am disturbed by this Bill and the manner of its passage. It is far too restrictive and will cause at least as many problems as it purports to solve. We may see a repeat of the 1983 situation where a second and third referendum were necessary to undo the damage done by the initial amendment. Hasty passage of a constitutional amendment Bill seems undesirable in principle.

The majority decision of the Supreme Court in the case of the Attorney Generalv. Hamilton has been widely criticised and makes little sense. It is significant that four of the seven superior court judges who dealt with this matter came to the opposite conclusion. Mr. Justice O'Hanlon and Mr. Justice McCarthy expressed their views in a far more trenchant and convincing manner than the arguments used in the majority decision.

Only two occasions are provided for in this amendment where it will not be possible to invoke absolute Cabinet confidentiality. Both are on the direction of the High Court and relate to court proceedings or tribunals of inquiry. It is totally undesirable that every other instance is excluded, such as a Minister talking to his civil servants, including the Secretary of his Department. This is ridiculous. I was a Minister for 13 years and I know it is usual to speak with the Secretary. Will this now be illegal? Frequently it is necessary to speak with a number of civil servants about matters discussed at Cabinet. This is perfectly proper but the current proposal will make it illegal.

I am in the unusual position of having resigned, for good reason, on two occasions from Government. I know the procedure and the trauma occasioned by this. At present there is an absolute right for a Minister to explain to the House why he resigned from Cabinet. However, what is now proposed will preclude him from doing so. This is ridiculous.

It is a tradition in Britain and less so here that former Ministers write their memoirs. Two were written here in recent years by former Deputies Garret FitzGerald and Gemma Hussey. Both quote extensively from what was said and done at Cabinet meetings. In Britain, almost every former Minister writes his or her memoirs, quoting extensively from Cabinet discussions. Bona fide students of history need to know what discussions take place in Cabinet but now they will not be able to find out. The National Archives should, but does not, contain all documents relating to Cabinet decisions more than 30 years old. However, in December 1992 the then Taoiseach, Deputy Reynolds, overruled the National Archives when it announced that it would have to exclude all papers relating to Cabinet discussions. It was overruled because it was ridiculous. There is no time limit on the current proposal. In 100 years' time historians will be unable to access Cabinet discussions if this measure stands as part of the Constitution. If passed the measure will presumably apply to all Cabinet discussions since 1921. Documents already in the public arena will have to be withdrawn. The measure does not make sense and it should be thought through more fully.

The Bill would be immeasurably improved by acceptance of the Labour Party amendments which I have seen in draft. If not, the gist of the amendments will have to be enacted in the future by means of another referendum. I know there is a perceived hurry about this because of the desire to have the referendum on the same day as the presidential election. Why not delay the referendum until the referendum on the Amsterdam treaty to be held in 1998? A few months will not make a great difference. It would be better to get it right.

I wish to conclude by citing the late Mr. Justice McCarthy in the conclusion to his judgment. He said:

There is no absolute confidentiality attached to discussions of Government meetings. Such absolute confidentiality would be inconsistent with the decisions of this court in the Murphy and Ambiorix cases. Such absolute confidentiality would prevent or impede inquiry into allegations of corruption or crime. The correct test is that applied by O'Hanlon, J. in balancing the requirements of a parliamentary inquiry with the requirements of confidential communications at Government level.

I welcome the introduction of this Bill. It represents a cross-party consensus with some modifications and qualifications such as those expressed by Deputy O'Malley. It is clear that there is good and sufficient reason for inserting into our Constitution the collective responsibility of Government. The Government acts as a unit and it is important, therefore, that any disclosure of Government discussions by an individual be contrary to the spirit of the Constitution, which clearly defines the separation of powers. I realise we have reservations on occasion, but because of their important role under Bunreacht na hÉireann it is important we vindicate the independent function of the courts, particularly in relation to interpretation of the Constitution and whether laws passed by the Oireachtas are in accordance with it. I have no reservations about the legislation before the House. However, there appears to be a degree of confusion — not on the part of the current or previous Governments — about the circumstances of this legislation.

The Taoiseach, in his speech, said that as a result of the Supreme Court ruling the report of the tribunal noted it was limited in its inquiries to decisions made by the Government and documentation on such decisions and it was precluded from inquiring into the contents and details of discussions at Government meetings. That terminology did not preclude the tribunal from commenting on decisions which were not made by the Government. It cannot be a breach of Cabinet confidentiality to say that decisions were not made by the Government on a particular issue. That would simply be to record a matter of fact.

I find it difficult to understand Mr. Justice Hamilton's finding that he felt precluded from indicating there was no evidence before the tribunal of a decision having been taken. Apparently what was at issue was whether the Government of the day had ever decided to give specific and special preference to one or two companies in respect of the export credit insurance scheme. Without breaching Cabinet confidentiality I feel entirely free to say that no such decision was ever taken by the Government. To say that a decision to do something was not taken by the Government is not a breach of Cabinet confidentiality. It was open to Mr. Justice Hamilton to say that in so far as the records of Government decisions were made available to him, he found no evidence of any decision having been taken by that Government to give special preference to one or two companies in the application of the Export Credit Insurance Bill. Even before the introduction of this Bill, no Member of the House was precluded from saying that a decision was not taken. There are so many issues on which a Government does not decide it is evident that one should be free to say the Government did not decide an issue. For that reason, I find it regrettable the Supreme Court did not make it very clear that members of the Government who made themselves available to the tribunal were not precluded from saying whether a decision was taken. I regret we were not given that opportunity and the implications of that did nothing to clarify the position. I totally agree with the introduction of this Bill.

I have been privileged to serve in a number of Governments. The purpose of Government is effective, collective solidarity, underpinned by confidentiality. A regrettable pattern has arisen over the years since the early days of the Governments which succeeded the adoption of Bunreacht na hÉireann. Sources are quoted by journalists and people are encouraged to feed information to them in the hope of winning favour or close association with journalists. This should be resisted by every member of Government as it is very regrettable and contrary to the Constitution. In the interests of all Governments it is very important that such practices should be resisted. This pattern tends to give rise to comment in the media about differences and divisions in Government. That is not in the interest of the body politic, neither is it in the interest of Cabinet solidarity and confidentiality. In view of the interpretation of the Supreme Court decision I welcome the introduction of this Bill but had it not been introduced, a member of any Government would not be precluded from saying the Government did not decide to do something. This Bill responds to the understandable need for the Oireachtas to co-operate fully with tribunals established by it.

I thank the Deputies for their interesting comments during the debate. Although only a small number of us contributed to the debate, there were very different views expressed. I acknowledge the contribution of the former Taoiseach and of the Attorney General in the preparation of the Bill and I also thank Deputy Howlin and the others who worked on the committee for constitutional reform. I am conscious of the amount of work which went into the Bill.

When I examined this issue in July, I quickly came to the conclusion — having spoken to my officials and others — that the whole debate should be opened up again and that all of the arguments should be examined. Without divulging any view, I can say there will be plenty of argument in the Cabinet and in the respective Government parties on this issue. We have heard from two seasoned Members of the House, Deputies O'Malley and O'Kennedy, who have probably served in excess of 20 years in office between them. They have very different views on the issue.

My preference is to move along the route proposed by Deputy Howlin. However, I am obliged to give the opinion of the Government which is that the issue should be moved forward quickly and a referendum held as soon as possible. I do not want to take from what I am sure are excellently drafted amendments, nor do I have any difficulty in listening to the arguments, but a balance has to reached. Deputy Howlin is aware of the arguments on this issue and they were carefully considered. Mr. Gleeson, whose legal capacities I hold in high regard, favoured this approach. Deputy O'Malley is probably correct in saying this issue will be further addressed on a future occasion and people may then have swung back to Deputy O'Kennedy's view that this is a dangerous route to take.

When changes were made over the years in various areas, we tended to fear the worst but it rarely happened and we moved on. I have read Mr. Justice Finlay's judgment — and I have great regard for Mr. Justice Finlay and the many fine judgments he has given over the years — but I would not like to see the day when 15 Ministers at the Cabinet table would take detailed minutes so that they could say at some future inquiry that they, and not just the Secretary of Government, have notes of a particular Cabinet meeting. That would result in contradictory views being expressed. Over the past 20 years in this House I have watched colleagues differ on various issues, and that happens in all parties. Deputy O'Kennedy's argument is that those who framed this legislation did so from a Cabinet confidentiality point of view, and that we cannot get away from that. It was my judgment, however, that we should move quickly on this issue, having regard to the enormous effort that was put into the preparation of the Bill. Regardless of what happens in the future, this is a step forward. If I were to go back on that decision it would open up the whole debate again and it would be a considerable time before we could proceed. I wanted this legislation to be ready in time for the forthcoming tribunal.

The issue of the civil servants has been discussed and I do not believe that is a difficulty. Ministers are not precluded from giving the content of what happened but they cannot say what an individual said. It is not as restricted, therefore, as Deputy O'Malley suggested. I have no doubt we will return to some of the issues raised. The Bill before the House is the result of a great deal of effort — I understand two dozen drafts of one form or another were prepared — and if I were to open up for discussion some of the issues raised we would not have this legislation available for the forthcoming tribunal. I ask the House to accept the Bill in its present form which I hope will be of considerable benefit, despite the views expressed by some speakers.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.