One must welcome the decision by the Government to put forward a proposal to the people which, if accepted, would roll back to a significant extent the effect on our legal system of the decision as to Cabinet confidentiality in the case involving the beef tribunal.

By a majority of three to two, the Supreme Court held that absolute confidentiality applies at all times in relation to the deliberations of government - no exceptions, and no time limit after which the veil of secrecy might be lifted.

While the Constitution itself is silent in relation to what can for convenience be called Cabinet confidentiality, the Attorney General, in bringing the case, and the judges who formed the majority in the Supreme Court were prepared to read this principle into the provisions of the Constitution - "The Government shall meet and act as a collective authority . . ."

At first sight this seems to be concerned with the principle of collective responsibility and the understanding that any member of the Government who is not prepared to go along with, and lend his name to support any particular Government decision should resign rather than compromise his own position and the position of the Government. It is still not clear to me how an absolute prohibition against ever divulging any detail of government discussions or proceedings can be read into it and I remain of the opinion that the majority decision was erroneous and unsupported by the express provisions of the Constitution.

Such an all-embracing and absolute ban on disclosure had never previously been enunciated by the Supreme Court. I refer, in particular, to the decisions in Murphy v Dublin Corporation, 1972, and Ambiorix, 1992, where the Court had struck a balance between the claim of the Executive to confidentiality and the public interest in disclosure in particular and limited circumstances.

As Mr Justice Walsh said in Murphy: "There may be occasions when the different aspects of the public interest `pull in contrary directions'. If the conflict arises during the exercise of the judicial power then, in my view, it is the judicial power which will decide which public interest shall prevail. It is for the court to decide in the circumstances of the particular case which is the superior interest and to determine the matter accordingly."

When giving judgment in the High Court in the beef tribunal case, I expressed apprehension as to the consequences that might flow from upholding the absolute confidentiality rule for which the Attorney General was arguing, and for which I could find no support in the text of the Constitution. I suggested that no wrongdoing on the part of government could ever be uncovered if the cloak of confidentiality could never be lifted.

My friend, Harry Whelehan SC, in a later comment published in The Irish Times, described such fears as "so far-fetched as to be incredible". I responded by pointing out that within the last few years the governments of France, Italy, Spain, Belgium and Japan have all been brought down by allegations of corruption and irregularity. And now, coming closer to home, we have not one, but a series of government tribunals whose proceedings involve the closest scrutiny of affairs of state and whose usefulness is seriously hampered - as was that of the beef tribunal - by the restrictions imposed by the rule of absolute confidentiality which emerged for the first time from the court decision to which I have referred.

The public interest must be paramount. That it can be fully safeguarded while adopting a much more relaxed attitude to the important issue of Cabinet confidentiality is evident from the experience of other countries whose constitutional framework is similar to our own.

President Nixon, in whom the full executive power of the United States was concentrated, was compelled - much against his will - to disclose particulars of meetings and discussions in which he took part, and these disclosures ultimately led to his abrupt removal from the presidency of the United States. The president went as far as the Supreme Court in claiming executive privilege and in seeking to quash a subpoena calling on him to produce documentary evidence.

The Supreme Court ruled that "neither the doctrine of separation of powers nor the generalised need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances . . . Any absolute executive privilege under Art 11 of the Constitution would plainly conflict with the function of courts under the Constitution". (US v Nixon, 1974)

Similarly, in the United Kingdom, the rule of law is stated in Halsbury's Laws of England, 4th edn, as follows: "Secrets of state, state papers, confidential official documents and communications between the government and its officers or between such officers are inadmissible in evidence if the disclosure would be contrary to the public interest. The same principle applies to oral evidence."

From all of which I deduce that our present law on confidentiality as enunciated by the majority decision in the Supreme Court is very much out of line with the law as understood here in the light of earlier decisions of the Supreme Court, and with the law as still applied in the United Kingdom and the United States.

I think the situation would be much improved if the proposal contained in the referendum now coming before the people were to be adopted by them, but I would regard it as essentially a stop-gap measure. The memorandum which has been published setting out various arguments for and against the proposal is an excellent document of its kind and under the heading, "The Proposal is too Narrow and Restrictive", it sets out a substantial list of matters, most, if not all of which should be added to the list of exceptions to the confidentiality rule, in the public interest.

As to the technical objection that the final word appears to be left in the hands of a single judge of the High Court as to whether the confidentiality rule may be relaxed or not, it seems to me that an appeal against his decision should lie to the Supreme Court, having regard to the provisions of Art 34.4.3 of the Constitution in the absence of a positive statement that the decision of the High Court is final and unappealable.

Rory O'Hanlon is a former judge of the High Court.