Given the controversies which attended the Dail debates on the McCracken report and the personal statement made by the Minister for Foreign Affairs, public attention has been understandably diverted from the debate on the 17th Amendment of the Constitution Bill 1997, which passed all stages in the Dail.

The object of this proposed constitutional referendum - which, incidentally, is scheduled to be held on the same day as the presidential election on October 30th - is to reverse in part the majority decision of the Supreme Court in the Cabinet confidentiality case in 1992.

This case arose out of the beef tribunal where, faced with conflicting evidence, the chairman sought to investigate whether, as claimed by the relevant minister, the government, at a meeting in June 1988, had decided to confine the provision of export credit insurance cover for beef to Iraq to just two companies.

There was no official record of such a decision having been made and the chairman sought to query ministers who attended this meeting as to whether they could recollect such a decision having been made.

A majority of the Supreme Court, relying on the language of Article 28.4.2 of the Constitution (which requires the government to "meet and act as a collective authority") held that Cabinet confidentiality was absolute in all circumstances. It followed that the chairman was precluded from questioning the witnesses further on this issue.

Nobody has argued that Cabinet discussions should not attract a particularly high degree of confidentiality: what was at once such a disappointing and implausible feature of the majority Supreme Court judgments was the conclusion that Cabinet confidentiality was absolute and subject to no exceptions.

This reasoning and conclusion were open to a myriad of objections; the principal one being that it prevented the effective investigation of fraud or criminal behaviour. The Supreme Court simply did not address the telling arguments of Mr Justice O'Hanlon in the High Court:

"It has not been unknown in the history of government in other countries for totally corrupt governments to come to power and for the members to enrich themselves dishonestly at the cost of the public purse. Were such a situation to arise at some unforeseen time in our own country and were the information to leak out of discussions at cabinet level at which such a nefarious plot was being considered, the legal submission now advanced on behalf [of the Attorney General] would prevent any future Tribunal of Inquiry appointed by the Houses of the Oireachtas from obtaining the information it needed to establish guilt where guilt existed."

The constitutional amendment now proposed by the Government would reverse this decision in part in that it would allow the High Court to order disclosure of what happened at government meetings where this was necessary in the interests of the administration of justice or the proper working of a tribunal of inquiry.

If this constitutional amendment is passed, it will mean that Cabinet confidentiality cannot be invoked to prevent any future tribunal from getting to the heart of the matter.

Unfortunately, however, the wording proposed is far too narrow. The new amendment will absolutely copper-fasten the earlier Supreme Court decision by providing for absolute confidentiality "in all circumstances", save for the two exceptions just mentioned, and then only where the High Court makes an order to this effect. This wording will have very unfortunate consequences, of which, to illustrate this point, the following example must suffice.

In December 1992, a few months after the Supreme Court's decision, it was reported that certain public records due to be released under the 30-year rule were not to be released on the ground that they revealed discussions at government meetings. The Taoiseach then intervened and ordered their release, saying that the operation of the 30-year rule had not been considered by the Supreme Court in its judgment.

But if the Bill is passed in its present form, this argument will no longer be available to rescue administrators from the absurdities of an absolute Cabinet confidentiality rule. For the new amendment will contain an express, iron-clad prohibition on disclosure save in two limited circumstances (of which this is not one) and then only if the High Court makes an order to this effect. It will, thus, effectively bar much historical research about the background to government decisions.

Take, for example, Terence de Vere White's account of the government discussions in December 1922, leading to the summary execution of Rory O'Connor and others in the 1986 version of his book, Kevin O'Higgins; John Bowman's account in De Valera and the Ulster Question of the debate within government circles in June 1940, as to whether to accept a British offer of support for a united Ireland in return for entering the war against Germany; the accounts given by Noel Browne and others of the circumstances leading to the decision to leave the Commonwealth: all of these and more could, strictly speaking, not have been published if the constitutional amendment as now proposed had been in force.

It is a conclusion which every civic-minded citizen will view with utter dismay and which ought to set off alarm bells in the office of every historian and political scientist.

The irony is that these concerns were voiced by the majority of the deputies who spoke in the guillotined Dail debate, not least by the Taoiseach, who acknowledged at the conclusion of the debate that it was probable "that this issue will be further addressed on a future occasion" with yet a further referendum.

The Labour Party was unsuccessful with its amendments which proposed that the Oireachtas would have power to create further "limited" exceptions by law. These amendments would have preserved the substance of Cabinet confidentiality while enabling the Oireachtas to legislate on points of detail by removing the absurdities of the near absolute ban preserved by the present Bill.

These include public records and historical documents; the right of ministers to reveal government discussions to senior civil servants and also the right of ministers to make disclosure in resignation speeches.

The new Seanad meets on Wednesday. Is it too much to ask that body to revisit the defective wording of the present Bill? It is bad enough that defective wording prompted further referendums on the sensitive subject of abortion, but it would be depressing to think that the Oireachtas would insist on a wording for the Cabinet confidentiality amendment which even the present Taoiseach seems to acknowledge is inadequate.

Dr Gerard Hogan is a lecturer in law at Trinity College, Dublin, and was a member of the Constitution Review Group