It is a matter of great personal disappointment that cabinet confidentiality has not been explained in a way that would enable the public to understand its origin. Neither have the reasons given by the Supreme Court for declaring cabinet confidentiality to be a fundamental principle within the Constitution been explained to the public. This reflects very poorly on all sections of the media and on our parliamentarians. Uniquely in the beef tribunal the chairman, Mr Justice Hamilton, sought to inquire from a former minister as to the content of discussions at a government meeting. To me, and I think to most constitutional lawyers and politicians, it had always been accepted that the subject matter of discussions by the government in the course of its deliberations under the Constitution was confidential.

When this challenge to the well established principle of cabinet confidentiality arose it was my function as attorney general to defend the principle, which was implicit in the Constitution. It was proper and appropriate that that issue should be determined (as the Constitution provides) by the High Court in the first instance and if necessary on appeal.

The Supreme Court found there was, under the provisions of the 1937 Constitution as it stood, both an absolute right to confidentiality and a duty on ministers to maintain confidentiality relating to the deliberations of government.

The ruling of the Supreme Court did not establish a principle, but confirmed that the principle was embodied implicitly in the Constitution from the date of the adoption of the Constitution in 1937.

The views which I held as a lawyer at that time or the views which I now hold or express are irrelevant. The Constitution in its present form embodies a principle of absolute confidentiality relating to the discussion by members of the government in cabinet.

There has been a singular failure by both the media and politicians to have regard to the provisions of the Constitution which were considered by the Supreme Court. More sinister is the portrayal of the principle as being much more restrictive than it is.

The Chief Justice, supported by the majority of the Court in reciting the principle, spoke in the following terms:

"The implication of this confidentiality from the provisions of the Constitution to which I have referred is, in my judgment, amply justified by the practical impossibility of carrying on fundamental functions of Government in its absence ...."

"I would therefore conclude that the claim for confidentiality in the contents and details of discussions at meetings of the Government made by the Attorney General in relation to the enquiry of this Tribunal is a valid claim. It extends to discussions and to their contents, but it does not of course extend to the decisions made and the documentary evidence of them, whether they are classified as formal or informal decisions.

"It is a constitutional right which, in my view, goes to the fundamental machinery of Government and is therefore not capable of being waived by any individual member of a government nor, in my view, are the details and contents of discussions at meetings of the government capable of being made public for the purpose of this Enquiry by the decision of any succeeding Government."

The absence of any meaningful debate on this subject may be due to the fact that there is considerable confusion between two separate and distinct notions of (a) public interest, and (b) public curiosity.

The public interest is an interest which the government is obliged to protect and very often will have to act in secret and maintain confidentiality in relation to its activities.

It is, I believe, universally accepted by responsible citizens that the recent leaking of secret documents from the Department of Foreign Affairs is reprehensible and contrary to and damaging to the public interest.

The documents were published by journalists not "in the public interest" but to satisfy public curiosity. Dare I say that "the public interest" and public curiosity are frequently in conflict.

To give another example which might be relevant, the Government is at present involved in supporting residents in the Dundalk area in relation to their efforts to close down Sellafield, the nuclear processing plant in Cumbria. Over the next year or two there will be a considerable amount of information given to the Government to help in the preparation of the case.

Obviously, the Irish public and the British public, the scientific fraternity and the legal fraternity will all be intensely interested to know the state of the development of that case and how it is being directed. Public curiosity would demand that on a daily or weekly basis there should be bulletins as to how the Government's thinking is evolving and the methods being employed by it, and the extent to which the evidence is "stacking up" to advance the case of the Dundalk residents.

Could it be argued that the public interest would be served by the Government revealing its hand on a weekly or monthly basis or at any time until the case goes into court?

Could "the public interest" be served by a running news story analysing and discussing the Government strategy? Such a discussion could only reveal the Government's hand to the other side to the certain detriment of the national interest.

The question must also arise as to whether it is likely or even possible that 15 people who having been elected to the Dail, who are answerable on a daily basis both individually and collectively to the Dail, would be likely to use the cabinet table as the venue to conduct a conspiracy against the State or engage in skulduggery, dishonesty and corruption in the presence of the Secretary to the Government and in the presence of the Attorney General who has an independent function under the Constitution to ensure that Government is carried out wholly in accordance with the Constitution and the laws of the State.

It is a reflection on the state of journalism and politics in Ireland and on the image of politicians that we have to consider the sacrifice, under pressure from the media, of a long-standing constitutional principle designed to facilitate effective government - pressure exerted by a group which does not appear to recognise the distinction between public curiosity and "the public interest" and by politicians who are fearful of making that distinction.

Some commentators have suggested that history will be deprived of useful information in considering the actions of Government by reason of the decision of the Supreme Court in 1992. That judgment merely confirmed the position as it had always been, but also made it clear, despite obfuscation, that only the discussions at the Cabinet table were absolutely confidential. Mr Justice Finlay made it clear "it does not, of course, extend to the decisions made and the documentary evidence of them, whether they are classified as formal or informal decisions."

All documents going into Cabinet for the purpose of enabling the Government to make a decision and to form the basis of a discussion and all documents emanating from a Government meeting are outside the rule and may be in the public domain.

All that is protected under the principle of confidentiality is the content of the oral discussion between the 15 Cabinet ministers who under the Constitution

must meet as a collective authority;

must act as a collective authority;

must be collectively responsible for all Departments of State and not merely the one in which they act as Ministers;

as a Government be responsible collectively to Dail Eireann.

Mr Justice Finlay expressed the view that the Government must of necessity have the entitlement to "full, free and frank discussion. . . prior to the making of decisions. . ."

The Dail is the place where the Government, through the appropriate Minister, publicly states the Government's position as a collective body. The recent report of the Constitutional Review Group confirmed this view.

The Constitutional Review Group did feel that the absolute requirement of confidentiality might lead to unintended results but it went on to warn that there were strong grounds for "extreme caution in any approach to relaxation of the rule".

The proposal for the amendment in the forthcoming referendum is undoubtedly a limited attempt to remove what is now an absolute prohibition on a breach of cabinet confidentiality.

Confidentiality, as Mr Justice O'Flaherty put it in his judgment, was "a necessary concomitant to the collective responsibility enshrined in our system of Cabinet Government".

He also expressly stated, and his colleagues implicitly agreed, that the court could not condone any breach of this principle.

Certain questions arise for politicians and for journalists in the light of recent leaks (of non-cabinet documents but they would equally apply in relation to breaches of cabinet confidentiality if they arise).

(1)Is the journalists' supposed right to protect sources greater than his/her obligation to uphold and comply with:

(a) the Constitution;

(b) the Official Secrets Act? If this question is answered "yes" then the journalist claims to be above both the Constitution and the law.

(2) If a politician or an official leaks a Cabinet secret or a document governed by the Official Secrets Act, does not the public interest require the exposure by the journalist of that politician or official and their removal from public office?

The proposed amendment will, if passed, give the right to a court or tribunal to breach the principle where the High Court considers that the overriding public interest so requires.

This proposal is not unreasonable in my view and would prevent a recurrence of the dilemma faced by the beef tribunal. But its acceptance, if it is accepted, will result in future calls (already signalled) for further erosion of the privacy which our Constitution has given to the Government so that it can have frank discussions, arguments and disagreements before uniting behind its discussions.

More tomorrow