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

The usual practice in Bills to amend the Constitution is that consideration of the sections is postponed until consideration of the Schedule has been completed as the sections are merely technical and the main object of the legislation is contained in the Schedule. Is that agreed? Agreed.

An Sceideal.


Amendment No. 1 is in the name of Deputy Howlin. Amendments Nos. 2 and 3 are related and it is proposed that we take Nos. 1, 2 and 3 together, by agreement.

Tairgím leasú a 1:

I leathananch 7, líne 3, "Déanfar" a scriosadh agus "Cé is moite de na cásanna teoranta sin a fhorordófar le dlí, déanfar" a chur ina ionad,


i leathanach 7, líne 13, "The" a scríosadh agus "Except in such limited cases as may be prescribed by law, the" a chur ina ionad.

I move amendment No. 1:

In page 6, line 3, to delete "Déanfar" and substitute "Cé is moite de na cásanna teoranta sin a fhorordófar le dlí déanfar",


in page 6, line 13, to delete "The" and substitute "Except in such limited cases as may be prescribed by law, the".

The Taoiseach's heart was not in the argument he made. It is not a good practice, on such a fundamental issue, not to enact the best legislation. I understand the pressures of time — the Opposition parties contributed to the pressure in ensuring we had this measure before us — but it is important that we amend the Cabinet confidentiality rule before the next tribunal gets into the meat of its work. For that reason I am anxious that we meet the timeframe of having the referendum in conjunction with the presidential election. We must get this right.

I am circumscribed by what I say about debates that took place previously, certainly around the Cabinet table, but it is important that we are bold on this issue. On a number of issues of extreme importance to this House and to this country in recent years, there has been a legal opinion and a political opinion. Too often the legal opinion won out over the political opinion, where the political opinion is much closer to the needs of the people.

I understand the innate caution attached to any amendment to the Constitution, but making an amendment to the Constitution that makes little difference — and this amendment does not make a significant difference — is not an acceptable way to proceed when we have the facility to go further and allow for all the anomalies that have been listed not only by me but by seasoned, able Deputies on the other side of the House.

This amendment seeks to add the phrase "except in such limited cases as may be prescribed by law,". It would allow for the Legislature to spell out those limited circumstances where there is a logic attached to the right to know. I do not pretend to have an exhaustive list but a number of areas have occurred to me. We have heard about the important issue of a Minister resigning from Government and being able to make a statement to the House as to the circumstances surrounding that resignation. It is normal procedure for Ministers to have an opportunity to explain the important reasons they walked away from Government. We have had examples of that over the years in this House. Deputy O'Malley said he twice resigned from Government and he has a right to explain for his own integrity, as does every other Member, the circumstances surrounding that.

Another distinguished lawyer, the former Deputy Michael McDowell, somebody for whom the Taoiseach would have great respect, said in The Irish Times on 25 August 1992 that it would be grotesque to require a Minister to remain silent in a situation like that. We cannot impose such a blanket restriction on people in that set of circumstances.

The issue of memoirs has been raised. Are we not to have any memoirs that touch on Cabinet decisions, the dynamic of Government? There are many other areas, for example, documents released under the National Archives Act. There is no public interest in keeping confidential Cabinet discussions which took place decades ago if they are recorded in Cabinet documents released under the National Archives Act. My amendment would provide flexibility for those to go into the public domain.

It is contrary to the European Convention on Human Rights to restrain the publication of details of discussions which are already in the public domain. On 26 November l991 the European Court of Human Rights ruled in the case of Observer and Guardian v. the United Kingdom that restraining a breach of confidence after the material concerned had already been published was contrary to the European Convention on Human Rights. My amendment would allow flexibility for us to comply with the spirit and letter of the European Convention.

In regard to the disclosure of discussions in accordance with the interests of public service, the Taoiseach said it was in order to give the gist of a discussion to senior civil servants. However, there are other circumstances where it would be necessary for the administration of Cabinet decisions and the carrying out of instructions for a detailed briefing to be given to civil servants, advisers or others who work with Government.

These are a few of the circumstances which go beyond the very circumscribed provisions in the Bill. This is the most important amendment tabled by me and I ask that it be accepted so that we allow that extra degree of flexibility. We can then take the time to very carefully craft the governing legislation, taking on board the experience of all the seasoned campaigners in the House in formulating a new Bill, subsequent to the enactment of the amendment to the Constitution by the people, to cover all these clear anomalies which will remain unless this amendment is accepted. I ask the Taoiseach for once to assert the political and overrule the legal advice.

I support this amendment. It is very important that we do not end up failing in our duty to improve this amendment to the Constitution. This is a very important matter and perhaps there should be more deliberation on it before we finalise this debate. The insertion of this additional clause would allow for future possibilities. If we do not accept this amendment there is a danger that we will end up with a very restrictive Bill which does not allow for the possibilities which have already been outlined and which may need to be debated in the future. We know that the pace of life is very fast and change is occurring all the time. We, therefore, need to ensure that the Bill provides for future possibilities. I strongly recommend that this amendment be accepted.

I am very much in sympathy with Deputy O'Malley's point that imposing time constraints on the debate on an issue as important as this is probably not the best way to proceed. It is evident from the observations made that there is an understandable concern about what one might term the normal effective administration of a Department by a Minister or, as Deputy Howlin said, the need for personal vindication by a former Minister who has resigned from Government. Deputy Howlin put this well when he asked the Taoiseach to assert the political and overrule the legal. I understand precisely the point he was making. Most of the participants in this debate have had the privilege of serving in Government. While I understand the motivation and bona fides behind the Deputy's amendment, I wish to register what I hope will be regarded as well-based reservations.

As I understand the Constitution, a person who has retired from Government — I presume it is always on a matter of principle — is not prevented from saying, "I retired from Government because I did not agree with a decision of the Government on a very important matter". I do not understand how that would be a breach of collective Cabinet confidentiality as a decision of the Government will be promulgated and a former Minister will be free to state clearly the reasons he or she retired. I appreciate that this is an important matter of principle for an individual member.

I do not believe I am wrong in that interpretation, any more than I was wrong in my first statement that even before the introduction of this Bill there was nothing to prevent anyone who was in Government from saying, "The Government did not decide to give special benefits to two beef companies". That would not be a breach of Cabinet confidentiality. I take the same view in relation to this matter but I wish to balance it.

If there is to be a balance of advantage, so to speak, between the constraints imposed on a former member of Government in vindicating his or her position of integrity and maintaining the effective role of Government I would come down very strongly in favour of securing the effective role of Cabinet confidentiality. There is no doubt that government imposes very severe constraints on members. This is very different from Opposition where Members may act as a cohesive political group but where all of them can outline their positions and the only test is whether they are in harmony. However, even that is not a constitutional test. The Constitution refers to the Government and Judiciary, not parties, and for that reason this is a different issue. Parties which find themselves on the opposite side of the House for the time being have a freedom which does not reside with parties on this side of the House.

Every time Fianna Fáil is elected to Government I believe all is right with the world and the correct party is in power. When other parties are elected to Government they have the same convictions — they believe everything is right with the world, the Lord is in heaven and the correct Government is in office. As those of us who have been in this business for some time know, the only constant in all of this is change, which is the real essence of democracy. The understandable concern of individuals to vindicate themselves should not be given preference over collective Government action.

Deputy O'Malley made a point about a Minister being constrained in regard to the consultations and discussions he or she can have with the Secretary of the Department on return from a Cabinet meeting, which is an important part of effective Government action. I do not believe that constraint exists now. If Government decisions are to be implemented, they must be communicated to the Secretary of the Department. That is standard routine practice. Unless the Minister concerned is imprudent or foolish, he or she will ensure on return from a Cabinet meeting that a Cabinet decision will be recorded by the secretariat and the Cabinet minute confirming that decision will be issued later.

If the Minister for Agriculture and Food brings a proposal to Government and having considered it, the Government states it is not happy about aspects of it and asks the Minister to bring it back to the Department, there is no constraint on the Minister returning to the Department and stating the Government wants it to reconsider the proposal and submit a new one. That has often been required to be done. I am not persuaded by the argument that this provision will impinge negatively on the effective relationship between a Minister representing Government in collective solidarity and the secretariat of his Department. There is an old maxim which applies in law, omnia presumunter rita esse acta, all things are presumed to have been done properly. That is the presumption that applies, but it can be upset. It does not impinge on Cabinet confidentiality if a Minister returns from a Cabinet meeting to the Department and states that the Government requested that certain action be taken. That happens all the time.

That was the whole point of the Supreme Court decision.

Deputy O'Kennedy's point is logical but not legal.

That is a regular feature of the role of Ministers in making their contributions.

It happens, but it is not legal.

On the basis of the principle I mentioned, apart from the precedent that exists, the courts would not have any difficulty with that.

The Deputy is presuming that.

I am not. Precedent, which has a great bearing on constitutional and legal jurisprudence, is there to be found.

That is not the case.

That is my conviction. I know the motivation behind the Deputy's amendment which states that "Except in such limited cases as may be prescribed by law,". We are moving into a delicate and sensitive area. Under our Constitution the separation of powers is very definitely inserted. The Judiciary is described as an institution of Government because it has a role in the overall governmental function. I argued the point strongly with members of a former Government when discussing amendments that if detail such as the words "save in accordance with what may be decided by law" were inserted in the Constitution, we would invite the type of trouble we wished to avoid. It would imply that the Oireachtas takes precedence over the Constitution and over the judicial function. There is that risk. I know that is not the intention of the amendment.

That is not the import of it.

If the Houses of the Oireachtas were to decide to pass a measure that would have that effect, without knowing its precise impact, I suggest there is a risk that we would be moving outside our area of authority into another area. The courts have a specific independent function to guard the implementation of the Constitution. If there was anything in the Bill that prevented a Minister from coming back to his Department and saying a proposal is not acceptable to the Government and needs to be amended, I would take a view on this, but I do not believe that is the case.

Some of us may find it uncomfortable that once in a while we may not be able to say what we would like to say, but that is the price we pay for the privilege of serving the Government of this nation.

My heart responds to Deputy Howlin's plea. Unfortunately when we are dealing with law and, in particular, constitutional legislation I must respond with my head in the same way I presume Deputy Howlin responded with his head when he was Minister and considered this matter in the previous Government. One can respond to a plea to let in the light but there is a duty on all of us to be careful and cautious about what we put into the Constitution.

As of now because of the Supreme Court decision Cabinet confidentiality is absolute. I did not agree with that decision but the Supreme Court is charged under the Constitution with interpreting the Constitution and they have laid that down. We are starting from that point and are moving to relax that rule. The issue is how far it should be relaxed. It is in that context I made the point about the baby and the bath water.

It has not been easy to come up with a formula. We are talking about something that is not written in the Constitution which makes it more difficult. Cabinet confidentiality is not expressed in the Constitution but is implied as a consequence of the collective responsibility referred to in Article 28.4. We have an interpretation of absolute confidentiality as something that is implied as a consequence of the collective responsibility set down in Article 28.4.

A commitment was given in the rainbow Government's policy document, A Government of Renewal, and even in that there was a degree of caution. It stated that the principle of the confidentiality of Cabinet discussions, which is important in maintaining collective responsibility, will be maintained as the normal rule. That was the starting point for the process of change. That commitment was made in December 1994. In November 1995 major constitutional, legal and administrative issues were still being considered by the group charged with dealing with this issue. This is not a simple matter. The first amendment essentially removes the constitutional protection of Cabinet confidentiality. If one includes, as is suggested by Deputy Howlin, "Except in such limited cases as may be prescribed by law", effectively the Oireachtas can override the principle at any time. I am not sure what the definition of "limited" is. The Oireachtas could prescribe many areas where Cabinet confidentiality would not apply and the rule would be set aside.

Is the Deputy terrified of the Oireachtas?

At the moment, although admittedly it is implied, there is constitutional protection of Cabinet confidentiality.

It is a constitutional shield which the people want removed.

If this amendment is accepted, that constitutional shield could be removed. That is a major step and should not be taken without grave consideration. It was not provided for in the Bill which took two years to draft following detailed discussions.

Amendment No. 2 proposes that Cabinet confidentiality would apply "unless waived by or in accordance with a decision of the Government". The problem is that the Government is a corporate body. Could this Government provide a waiver of decisions or discussions of the last Government? What would that lead to? I accept that in constitutional matters I am a cautious conservative.

That is true.

I am all for a programme of reform. I was chairman of the committee which recommended 30 or 40 changes, all of which were carefully considered. One does not rush into change without due consideration. The points raised by Deputy Howlin are worthy of due consideration. I am prepared to give them such consideration and tease out the consequences. It would be crazy and dangerous to rush into a judgment immediately and accept the amendments.

I reject Deputy O'Malley's suggestion that this Bill be postponed for another year so it can be given fuller consideration. We need it in place, as it is, for the upcoming tribunal. I do not want that tribunal limited so it cannot obtain the necessary order to make full inquiries in the public interest. There should be no question of rushing it through but it has been in gestation for a number of years and has been considered by both Governments. In that context, I would be happy to see the Bill passed as it stands although in normal circumstances I would like to give it more detailed consideration.

The points raised by Deputy Howlin are worthy of careful consideration. Those of us who are interested in these matters would be happy to tease out the legal, constitutional and administrative aspects of these amendments. This would require much time, research and procurement of advice. This issue was mentioned as being under consideration by the Government although it was not given any consideration by the all-party committee to review the Constitution. I hope the committee will be reconstituted shortly and the issues raised by Deputy Howlin could be profitably examined by it with a view, if necessary, to making further recommendations.

In the meantime, as regards the relaxation of the existing absolute rule and the upcoming tribunal, this Bill should be passed as it stands. I make that recommendation to Deputy Howlin and Deputy McManus who is also keen to follow his line. I hope she is a member of the next committee, in lieu of her excellent former colleague who made a great contribution to the previous one. These issues should be considered further at the all-party committee.

It is a pity we seem to have reached an impasse. I gather it is not intended to accept any amendments and obviously Fine Gael agrees with the Government on this. The matter might as well be a case study in what transpired previously. It is ridiculous that we cannot even talk about that and what discussions took place at respective Cabinets. It is unreal.

I recently looked at some of the operations of the Israeli Cabinet, not that it is to be held up as perfect but votes taken at their Cabinet meetings are provided as well as the views expressed. Other Governments, quite sensibly, take a very different view to ours. We have an obsession with secrecy, which is a purely British phenomenon. In Brussels it is thought we and the British are crazy, out of line with the rest of the world and the sooner we realise that the better. In Ireland, the public service, politicians and the courts are obsessed with secrecy and the importance of it.

What is important here is not so much Cabinet confidentiality as the whole culture of secrecy. Letting some light in is regarded as the wrong approach. We will have to grow up and the sooner we realise the British manner of conducting matters is not necessarily the best or only way, the better. It is amusing that frequently the British have jettisoned their own traditions to their benefit. Slavishly, we have not. We are like a post-colonial country which thinks that what was done in Westminster in the 19th century must be the best thing for all time.

Deputy O'Kennedy takes great exception to the phrase "Except in such limited cases as may be prescribed by law". He says this would give the Oireachtas freedom to change the Constitution, which only the people should do. The phrase mentioned by the Deputy features prominently in the Constitution, if he cares to examine it. I can think of several instances, perhaps the most important of which is the administration of justice. In certain limited cases, the administration of justice is allowed by a body other than a court. This has never given rise to any great problems. Our Constitution is littered with this phrase. It would be unworkable if this type of phrase and system was not used widely.

Deputy O'Kennedy harked back to the time when apparently there was a dispute as to whether favouritism was shown to a particular beef producer at a Cabinet meeting. He said that because the Government records did not show that such a decision was taken, then one can say that decision was not made. What is important is what was proposed. The tribunal wanted to find out who wanted what, why and for whom.

It is easy to get the final decision. What is significant, however, is what led up to it, why it was made and who wanted it made or not made, as the case may be. That is what was at issue at that time in the beef tribunal.

As well as the instances I gave in the brief speech I made on Second Stage, there are others that would be anomalous if this Bill were passed. The Government could not set aside this rule, nor could the Dáil, even though Article 28.4.1º of the Constitution states the Government shall be answerable to the Dáil. It will not be exclusively answerable to the Dáil and the people, it will also be answerable to the High Court under the proposed subsection (3).

There is a major question about whether lawyers or elected people should make the ultimate decisions. The spirit of the Constitution is that those who are elected, and therefore answerable to the people, should do so.

It is wrong that the Government in its wisdom cannot set aside this rule, or that the Dáil cannot force it to set it aside if the Dáil so thinks fit. If this discussion had taken place 20 or 30 years ago it might be regarded as academic. When this debate concludes, we will come to an item on today's Order Paper which suggests that Mr. Justice O'Hanlon's and Mr. Justice McCarthy's fears about many of these matters concerning discussions at Cabinet could well be justified. It could happen. We can consider that in more detail under the next item.

If it became necessary in the investigation of an offence or a possible offence by a member of the Government, for the Garda to make inquiries relating to what happened at a meeting, they are also precluded. This is because Part II of the Schedule to the Bill states that the exception will apply only "in the interests of the administration of justice by a court". The case must be before the court. It must be brought that far before one can apply to the High Court to set it aside. The Garda will be inhibited in making inquiries.

In his judgment, Mr. Justice O'Hanlon went on at some length about the possibility of corruption in a Cabinet. We cannot say he was wrong in raising such a possibility but that cannot be investigated by the Garda, at least to the extent of talking to other members of the Cabinet and asking them what went on there. That is wrong.

The point can be met by this amendment which states: "except in such limited cases as may be prescribed by law". The word "limited" is used already in the Constitution and is easily recognisable and defined. I have given six or seven instances which can be covered because they are specific, limited cases. One can still maintain the principle of Cabinet confidentiality without making the matter ridiculous.

In 1992 the former Taoiseach, Deputy Reynolds, overruled this principle when he directed the National Archives to publish documents that included discussions at Cabinet. Everyone at the time said he was right and that it was common sense. If he was right then, why is it not right to do it now, particularly when they are over 30 years old? Why could common sense apply in 1992 but not in 1997?

If this was an ordinary Bill I would not be that worried about it because one could amend it in three or six months' time if these problems began to arise. With the Constitution, however, one cannot do that. Deputy O'Keeffe tells me I am wrong to want to wait a few months but I am not wrong. It is much better to get it right. Would we not all have been better off if things had been got right in 1983——

Hear, hear.

——instead of having to put up with matters then and all the consequences of that? At the time both sides of this House were tripping over themselves trying to have a constitutional amendment enacted so that they could prove to the public that each side was holier than the other. Look at the consequences of that. This is not as big an issue but most experienced people who know what is involved should be satisfied that any amendment of the Constitution is correct.

According to the Order of Business all these amendments will be put together in less than four minutes' time. We have had fine and detailed contributions from various Deputies over a much longer time than anticipated. I ask the Taoiseach and the Government Chief Whip to consider varying the Order of Business to extend this debate until 5.45 p.m.

We set the timetable on the Order of Business this morning. It would be most unusual to alter it.

It would be in everybody's interest to have some time to tease the matter out. I have moved four amendments and I have made one interjection. There have been very long comments from Government Deputies in this debate, although they were useful ones. I and others want some time to respond and to deal with the other amendments but we will not do it in ten minutes. I am only asking for 25 minutes.

As I said, it would be most unusual. Does the Taoiseach wish to comment?

Until 5.40 p.m.

Is that agreed? Agreed.

I am obliged to the Taoiseach. Deputy O'Kennedy made a strong case on the precedents for discussion between Ministers and their Secretaries when Ministers came back after a decision. There is probably some validity in that point. However, we are now proposing a change in the Constitution and all existing precedents are nullified by the words in this amendment "respected in all circumstances save only" which we propose to put into the Constitution.

There is no use in Deputy O'Kennedy talking about precedents and saying that we will do it anyway. We must frame laws, and particularly the Constitution, in a very clear way. This restriction is too great. If it were challenged it would circumscribe the relationship between a Cabinet Minister and his or her most senior civil servants in relation to the imparting of knowledge. It would be nonsensical, in the instance that Deputy O'Kennedy gave, if a proposal from a Government Department for a Minister was ordered to be amended by Government. The rationale for the instruction of Government would have to be explained and "respected in all circumstances".

Deputy O'Kennedy also objected to the term "except in such limited cases as may be prescribed by law", which is the wording of my first amendment. Deputy O'Malley accurately and rightly said that is simply lifted from the Constitution in so many other cases. The Constitution repeatedly gives the Oireachtas the power to set limitations in a legal framework. I also make this point about the provision for the courts for the benefit of the learned Deputy Jim O'Keeffe. Justice must be administered in public save in such limited circumstances and "cases as may be prescribed by law". That is already in the Constitution so there is nothing new or ground breaking in using that phrase in this context as well.

It is important to make this amendment and I believe the Taoiseach is well disposed to it. It is not something we can revisit, although Deputy Jim O'Keeffe said we might do so. It would be nonsense to revisit the same sections of the Constitution. We should not put a proposal to the people if we are not convinced the form of words in this Schedule is right. There is every danger the people will read the record of this debate, the trenchant criticisms by Deputy O'Malley and others and the reservations put forward by those proposing it and then tell us to get the form of words right because this is the basic law of the land.

I have made my case on amendment No. 1 which is sensible. Amendment No. 2 allows the Government to waive confidentiality. Confidentiality is the right of Government and there could be circumstances in the normal course of business where that right could be waived. I am not as wedded to that amendment as to amendment No. 1. People might feel that giving the right to waive confidentiality to a succeeding Government could cause political difficulties. However, my experience is that succeeding Governments, particularly some Ministers, need no such constitutional provision to put a construction on the actions of their predecessors. We do not have to look too hard to find examples of that.

Amendment No. 3 states "in page 6, line 14, to delete "in all circumstances save only" and substitute "save". The purpose of this amendment is to remove the statement that the two listed exceptions to confidentiality are the only exceptions to be permitted. We have listed all the cases which should be looked at coldly and calmly in a legislative framework. We have had this debate so often about other issues, but I trust the Oireachtas to do this.

There is a growing body of professional practising politicians who are fed up that people do not trust them. It is not long since the people had their say and we are their elected representatives. We should not undermine politicians by implying we must put a ball and chain on them because they might do something mad or daft which would run counter to the views of the people who elect them. My experience is that politicians are extremely well attuned to the views of the people who send them here and they do not take mad or daft actions.

I ask that these three amendments, particularly amendment No. 1, be considered because it is important to ensure we have a sound provision to put to the people so that we do not have to revisit it in one or two months' time when they would have every right to ask us why we could not get it right when they first voted on it.

Amendment No. 1 is the most important of these three amendments. I ask the Taoiseach to remember the reason we are here today and the traumatic events which have occurred here. This is the most significant day I have experienced since entering the Dáil. It is important that the public has confidence in the Constitution. This is not the most important amendment on which the people will be asked to vote. The Constitution is an important part of people's lives and this amendment must be the best one possible. There is much rhetoric about openness and accountability but it cannot be measured until it is tested. This is one such test for the Government. The Government must live up to this test if the confidence building process is to be successful in the long run. Small steps will make the difference.

This is essentially an enabling provision which does not force the Oireachtas to impose anything on anyone. It allows this body of elected people to recognise situations which require legislation. Amendment No. 1 must be accepted by the Government and by the Fine Gael Party to improve the constitutional amendment, to maintain its tightness and focus and to give the protections which we all recognise must be given.

I thank everyone for participating in this debate. The previous Government's advisory group concluded its deliberations on this matter. We are now arguing about whether its conclusions were right or wrong. Some of my colleagues stated that perhaps we should have studied this matter for a longer period. Some may be opposed to the issue while others may take a different view. The previous Attorney General and the Government tried to strike a balance and to move things forward in a spirit of openness.

I agree with Deputy McManus that perhaps the argument about openness is brought to ridiculous conclusions, but I am equally convinced that people believe change is good. What would have happened if the 1992 case had not gone to the High Court and the Supreme Court and if there had been no confidentiality stipulation and people had been able to take the bait?

There would have been great memoirs.

It would not have made any difference. People would not have been able to derive anything from the discussions at the time. However, that might not always be the case. When I first entered the Dáil, the view was that any Cabinet memorandum or decision should not be seen; we are now talking about Cabinet discussions. I am not sure about the logical conclusion. Sometimes one must read the weekend newspapers to know what happened at the Cabinet meeting.

They can be helpful.

Sometimes they are right but sometimes they are wrong. It is often possible to get more detailed accounts from newspapers than from Government memoranda. That is the position and I do not think we should come to the view that all of this will change anything. To Deputy O'Keeffe I say if there was no tribunal, I would have taken the view of allowing an extended debate on this issue but it is important that we have this tribunal. Deputy Howlin told us why he believes that to be the case and I do not think this particular waiver will in any way affect the position.

On amendment No. 1, to permit exceptions to the rule of confidentiality of Cabinet discussions would undermine the entire concept. Cabinet confidentiality derives from the collective responsibility provision in the Constitution. To enable exceptions to be drawn up by way of legislative measures would undermine the constitutional protection envisaged by the measure before us and the intended role of the High Court.

Amendment No. 2 would create inconsistency and confusion in the new constitutional provision. A Government and the High Court could decide to waive Cabinet confidentiality. The whole purpose of the previous Government's amendment was to take a decision out of the realm of political controversy and give it to the High Court. Deputy Howlin will be aware that the Supreme Court in the 1992 judgment determined that a succeeding Government cannot waive the privilege which a previous Government enjoyed in relation to Cabinet discussions. Consideration was given to the question of giving sole power to the Government to waive the confidentiality of Cabinet discussions, past and present. However, since the Government of the day would continually come under pressure to waive the rule in relation to its own discussions, it would also be open to accusations of political opportunism if it were to decide that the confidentiality attaching to a previous administration's discussions should be waived. That is a fair argument.

Amendment No. 3 would dilute the emphasis placed on the need to respect the confidentiality of Cabinet discussions in all circumstances. The emphasis is considerably reduced by the amendment.

With regard to amendment No. 4, the existing wording "tribunal appointed by the Government or a Minister of the Government"——

We have not reached that amendment. I will try to explain the logic of it.

I am aware of the Deputy's argument on amendment No. 4. I will do the Deputy the courtesy of letting him explain it.

Much of what Deputy O'Malley said today was interesting but I do not agree with him when he said that we cannot return to these things as they progress. I would side with Deputy O'Keeffe, because we continually return to them. We are also engaged in a review of the Constitution and I mentioned the good work which has taken place.

On Deputy Howlin's point, Deputy O'Keeffe felt rightly proud that the committee he chaired excellently managed to do many things by consensus. The very point he made was that we, as politicians, can make sound judgments on what we can and cannot do. The one benefit of the committee system as opposed to the normal adversarial atmosphere of the House is that we can reflect on these issues and bring forward what are considered to be sensible amendments.

I hope that, with the passage of this Bill, the referendum, another tribunal and the legislation I hope to introduce either later in the year or next year on how we should do business in the future, the provision of rules and procedures which we can follow following the sad lessons of the past for colleagues, will mean people will know the rules in future. My only difficulty, as a Deputy rather than as Taoiseach, is to understand how some of those rules fall on Deputies and what precisely we must do. When in Opposition I called for clarity and I do so again in Government. We must be clear on this. In fairness to Members, that on which we are judged must be understood in a non-legal way.

I cannot accept the amendments for the above reasons. There is merit in continuing to examine these matters and others about closeness which affect us, and I certainly have no difficulty in doing so. We can come to understandings on an all-party basis on a number of those issues. I would be willing to have the Government's Members on that committee join in examining this.

Cuireadh an cheist, "Go bhfanfaidh an focail a thairgtear a scriosadh", agus fógraíodh go raibh glactha leí.

Question, "That the words proposed to be deleted stand", put and declared carried.
Faisnéiseadh go rabhthas tar eis diúltú don leasu.
Amendment declared lost.
Níor tairgeadh leasú a 2.
Amendment No. 2 not moved.

Tairgim leasú a 3:

I leathanach 7, líne 4, "i ngach toisc ach amháin" a scriosadh agus "seachas" a chur ina ionad,


i leathanach 7, líne 14, "in all circumstances save only" a scriosadh agus "save" a chur ina ionad.

I move amendment No. 3:

In page 6, line 4, to delete "i ngach toisc ach amháin" and substitute "seachas",


in page 6, line 14, to delete "in all circumstances save only" and substitute "save".

Cuireadh an cheist, "Go bhfanfaidh an focail a thairgtear a scriosadh", agus fógraíodh go raibh glactha léi.

Question, "That the words proposed to be deleted stand", put and declared carried.
Faisnéiseadh go rabhthas tar eis diultu don leasú.
Amendment declared lost.

Tairgim leasú a 4:

I leathanach 7, líne 8, "ag an Rialtas nó" a scriosadh,


i leathanach 7, línte 20 agus 21, "the Government or" a scriosadh.

I move amendment No. 4:

In page 6, line 8, to delete "ag an Rialtas nó",


in page 6, lines 20 and 21, to delete "the Government or".

This is a drafting amendment. I am advised that under the terms of the Tribunals of Inquiry (Evidence) Act, 1921, as adopted by Statutory Orders, a tribunal can be set up by order of a Minister of a Government. I understand that the Act does not envisage an order of the Government collectively. Consequently, the amendment simply brings the wording into line with the Act.

There could be legislation which would authorise a Government to set up a tribunal; that legislation does not exist at present. When dealing with a constitutional amendment would it not be proper to cover both situations, that is, a tribunal set up by the Government directly or by a Minister?

There is no such legislation at present.

I accept that, but it should be remembered that we are talking about a constitutional framework. In future legislation it may be decided that it is appropriate that tribunals should be set up by Government rather than by a Minister.

That is a technical matter. I will be bound by the Taoiseach.

The existing wording, "a tribunal appointed by the Government or a Minister of the Government" was examined. It, and of course the concern with what would happen at some future date, was considered by the previous Attorney General. It may be purely technical and relate to the point that, strictly speaking, the Government, has not to date appointed tribunals; they have been appointed by the relevant member of the Government, including, as appropriate, the Taoiseach, on foot of a motion approved by the Houses of the Oireachtas.

This is under the 1921 inquiries Act.

The Government, as a collective body, can appoint a tribunal if it wishes under tribunals' legislation. Hence the reference to Government in the proposed constitutional amendment.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Is the Schedule agreed?

There is a provision for going to the High Court for a determination but normally there is a provision for an appeal to the Supreme Court. Is it usual to leave it with the High Court? I raise this point for future consideration. It is something that might be examined if we revisit this issue.

There will not be any chance to change it once it becomes part of the Constitution.

I am advised that it could go on appeal to the Supreme Court.

As it is now 5.40 p.m.

I am required to put the following question in accordance with the Order of the Dáil, as amended, of this day:

That sections 1 and 2, the Schedule, the Preamble and the Title are hereby agreed to in Committee and the Bill is, accordingly, reported to the House without amendment, that Fourth Stage is hereby completed and that the Bill is hereby passed.

Cuireadh agus aontaíodh an Cheist.

Question put and agreed to.

I thank the Opposition parties and the Deputies who were present during the course of the debate. We have done good work in passing this legislation which I hope will prove beneficial.