The commitment by the Taoiseach, Mr Ahern, to revisit the terms of the constitutional referendum on Cabinet confidentiality at a future date is a cautious, but welcome step. A draft Government statement, designed to allow the leaders of the five main political parties to call for a "Yes" vote in next Thursday's referendum, gives an undertaking that the All-Party Dail Committee on the Constitution will review the situation in the light of the operations of the Moriarty and Planning tribunals. That approach, which has yet to be confirmed by the party leaders, goes a considerable way towards addressing the doubts of some politicians and concerned citizens. The elevation of secrecy to something approaching a principle of government is not something that should be countenanced in a modern democracy.
The referendum before the electorate is designed to reverse the majority decision of the Supreme Court in the Cabinet confidentiality case of 1992. That 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 by the 1987/89 Fianna Fail government. The Supreme Court decided by a majority of three to two that Cabinet confidentiality was absolute in all circumstances. The amendment now before the people, however, would allow disclosure of discussions around the Cabinet table where this is necessary in the interests of the administration of justice and/or to facilitate tribunals of inquiry.
The relaxation of the ban in two specific areas, as provided by this referendum, reflects the need to provide the upcoming tribunals with the legal instruments and the leverage required to do the work requisitioned by the Dail and Seanad. But the practical effect of the 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 details of past events. It could, "in extremis", prevent disclosure of the already-deficient minutes of Cabinet debates which would normally be covered by the 30-year rule.
Arguments for and against the referendum were published in this newspaper yesterday as part of the Government's information campaign. The details should be read and weighed carefully by all voters. But, before minds are made up, this latest undertaking by the Coalition Government should be given due consideration. It acknowledges the demand for a more flexibile approach to Cabinet confidentiality. And while it stops short of promising another referendum, it does not close off that possibility.
In the circumstances, this is probably as far as a Government could be expected to go in recognising that its proposal to amend the Constitution is flawed. The promise to have the all-party committee on the Constitution review the matter in the light of the work of the tribunals will ease tensions between Fianna Fail and the Progressive Democrats. It will satisfy the Opposition parties that helped to draft this Referendum Bill in the last government. And it takes some cognisance of a recent "Irish Times/MRBI" opinion poll, where 72 per cent of those questioned believed the terms of the referendum were too restrictive.