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.