Brendan Howlin (Wexford, Labour) | Oireachtas source

Deputy Donnelly has read out the new constitutional provision. Article 28.4.3° was inserted in the Constitution following the judgment of the Supreme Court in the Attorney General v. Hamilton case, deriving the principle of Cabinet confidentiality from the general principle of collective responsibility in Article 28.4.2°. Up to that point, there was an absolute prohibition on giving any information on discussions or papers at Cabinet.

The purpose of the amendment was to establish exceptions to the absolute principle identified in the Supreme Court judgment to allow for disclosure of Cabinet discussions in the two instances referred to, rightly, by Deputy Donnelly. This is a constitutional issue and it is not open to us to vary or amend the provision. The High Court can only make a determination in a case where it is in the interests of the administration of justice by a court. Obviously, this does not meet that criterion. The High Court can also make a determination by virtue of the overriding public interest pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government. This will not be a tribunal so appointed and we would need to amend the Constitution to capture what the Deputy intends. That is the formal advice I have.