With the attention of the public and the political parties focused on the presidential election, only scant attention has been paid to the referendum on Cabinet confidentiality which is also scheduled for October 30th next. With little divergence of view among the main political parties, there has been little conflict and virtually no debate. Government and Opposition appear at one on the thrust of the proposed amendment which was framed by the last administration and inherited by the Fianna Fail-Progressive Democrat coalition. Against this background, two former Cabinet Ministers, Mr Des O'Malley and Ms Gemma Hussey, are challenging the consensus and highlighting the very serious defects in the proposed amendment. Both have called for a rethink. This potentially dangerous amendment requires more analysis and consideration. Mr O'Malley has been blunt; it was rushed through Cabinet, he says. Ostensibly, at least, the proposed wording is designed to reverse the majority decision of the Supreme Court in the Cabinet confidentiality case in 1992. The case, initiated by the former Attorney General, Mr Harry Whelehan SC, arose out of the beef tribunal when the chairman sought to investigate the circumstances surrounding the provision of export credit insurance. The Supreme Court decided that Cabinet confidentiality was absolute in all circumstances. The amendment now before the people, however, would allow disclosure of what happened around the Cabinet table where this is necessary in the interests of the administration of justice and/or to facilitate tribunals of inquiry.
All this amounts to no more than "one step forward and two steps back" as the TCD law lecturer, Mr Gerard Hogan, observed yesterday. The relaxation of the ban in two specific areas may, of itself, be welcome. But the practical effect of this amendment could be to copper-fasten the Supreme Court ban on Cabinet confidentiality in all other circumstances. It could produce a grotesque situation in which historians and former Cabinet ministers are prevented from disclosing past events. Indeed, it could, in extremis, prevent the disclosure of Cabinet debates which would normally be covered under the 30-year rule. It may be that half a loaf is - in present circumstances and at this particular moment - better than no bread. The amendment may be seriously flawed but it should - by removing the blanket ban on Cabinet secrecy - provide the Moriarty and planning tribunals with the legal instruments and leverage they require to seek out the full truth. The important point is that the Government should not content itself with the amendment and no more. The Irish Times/MRBI poll, published in this newspaper yesterday, indicated the strong public preference for access to all relevant information. The amendment on Cabinet confidentiality should be viewed by Government as a pragmatic first step. Before inviting the public to support it, the Government should commit itself to a comprehensive series of proposals designed to enhance the public's right to know. These should be placed before the people - in conjunction with the referendum on the Amsterdam Treaty - early next year.