Dáil Éireann debate -
Tuesday, 27 Mar 1962

Vol. 194 No. 4

Committee on Finance. - Official Secrets Bill, 1962—Second Stage.

Minister for Justice (Mr. Haughey)

I move that the Bill be now read a Second Time.

This Bill is, in the main, a consolidation measure and it is, therefore, concerned to a large extent with restating the existing law, which is contained in the Official Secrets Acts, 1911 and 1920. These Acts were made the subject of somewhat extensive adaptation by an order made in 1928 under the Adaptation of Enactments Act, 1922. Notwithstanding this adaptation, however, it is unsatisfactory to have to rely on these Acts, which were designed to safeguard the military and naval defence of the United Kingdom, to prosecute for unauthorised disclosures of secret or confidential official information.

This was recognised during the Emergency period by the making of Emergency Powers Orders which set out the provisions of the Acts which appeared at the time to be appropriate in our conditions. With the lapse of these Orders the position remained as unsatisfactory as it had been although the Defence Act of 1954 re-enacted a number of the provisions of the Acts, such as those relating to sketching or photographing military installations. Apart from the inappropriateness of the Acts and of their terminology, they have proved defective in at least one instance of leakage of official information which related to examination papers. This particular defect is being remedied by Section 5 of the Bill.

Deputies will notice that the Bill distinguishes between unauthorised disclosure of secret or confidential official information—that is dealt with in Part II of the Bill—and the disclosure of information to the prejudice of the safety or preservation of the State, with which Part III of the Bill is concerned. The former category includes both confidential information of the type normally circulating in Government Departments and the confidential information entrusted to Government contractors, such as printers of official reports and other such documents. Part III, on the other hand, is concerned with spying and therefore necessarily contains somewhat elaborate provisions which recognise not only the serious consequences of these activities, but also the difficulty of bringing spies to justice.

The penalties for disclosure of information under Part II are much less than those applicable to acts which are prejudicial to the safety or preservation of the State: these offences are triable on indictment whereas any other offence under the Act is triable summarily.

Deputies will, I think, be interested in the provisions of subsection (3) of Section 6, which empower the Taoiseach to give directions as to the return or disposal of any original documents which constitute or contain official information and which are in the possession or under the control of any person who formerly held office as a Minister or Parliamentary Secretary. Ministers and Parliamentary Secretaries and persons who formerly held these offices are of course bound by existing Acts not to communicate any information of a confidential character which is in their possession by virtue of their holding office, and this obligation continues even after they have ceased to hold office.

The Bill makes no change in the law in this respect and accordingly it will be unlawful for any former Minister or Parliamentary Secretary to disclose, without authority, confidential information which has come into his possession during his term of office. Subsection (3) of Section 6 is concerned only with the return of documents in the possession of former Ministers or Parliamentary Secretaries. It has been the practice for some Ministers at least to retain their copies of Cabinet papers on leaving office and the Government do not wish to disturb this practice, which has not given rise to any abuse. The Government consider it necessary, however, to be able to deal with a situation where a Minister or Parliamentary Secretary on leaving office would take with him original official documents such as files and subsection (3) of Section 6 will enable the Taoiseach to give directions for the return of any such original documents.

The other provisions of the Bill are those normally found in official secrets legislation and I do not think it necessary to go into them in detail, particularly as they are set out in convenient form in the Explanatory Memorandum published with the Bill. Should any Deputy require further details about any of these provisions at this stage I shall endeavour to give it in the course of my reply. As is so often the case with these consolidation Bills, where the main principles have been generally accepted over along period, the main discussion will, I think, arise on points of detail relating to particular provisions and these points may be more satisfactorily cleared up in the freer discussion permitted on Committee Stage. I shall welcome any comments that Deputies may make in the course of the debate towards improving the measure and so far as I can I shall endeavour to meet their wishes in the course of the Bill's passage through the House.

Mr. McGilligan

The Minister tells us that the change under this Bill is taking place mainly because it is regarded as unsatisfactory that we should have to rely on previous Acts, which were designed to safeguard the military and naval defence of the United Kingdom, to prosecute for unauthorised disclosures of secret or confidential official information.

The Acts were, of course, entirely designed for the protection of the State in respect of anything to do with the defence forces of the country or with any military installátions, but they were practically confined to those. The situation as explained in connection with these Acts is that they were directed to the punishment of spies and the prevention of the disclosure of State secrets, and the test was whether matters would be useful to an enemy and therefore prejudicial to the State.

Nobody can object to that type of legislation being put on to a new footing but we are getting into deeper water and I suggest we are taking very extensive control which goes far beyond the security of the State. The first of these Acts was passed in 1911 when there was a considerable panic in England in regard to espionage. Practically everybody who could not by his name or conduct disclose himself as being a native-born person of the United Kingdom was subject to a certain amount of suspicion. It was found, however, when people were caught in doubtful circumstances, that it was not easy to bring them to justice. There was the case of a person who was found in some prohibited area with the usual equipment of a camera and various other items for taking photographs. It was an island where there was a military installation and he said he was there for the purpose of investigating the habits of birds. Since it was in mid-December he was caught, his anxiety about bird-watching did not strike home. It was found difficult to bring that person to justice ; hence the 1911 Act.

Section 9 is the pivotal section of this legislation. In the corresponding English legislation, "prohibited places" is the pivotal matter. There is in the 1911 Act the phrase about wrongful communication of documents or of information which was in a confidential form by one holding office under his Majesty or the wrongful communication of information received by a person by reason of his holding office under his Majesty.

So far as this legislation relates to defence matters, I do not see any objection to it. As regards the operation of the Official Secrets Act in this country, the history of what has happened is not very reassuring. There was one prosecution only which was brought either in the year 1932 or 1933 and I know at least two people—there may have been three—were charged. After a couple of days, the case was taken away from the jury by direction of the judge. The judge indicated his point of view by saying he thought this prosecution never should have been brought. He went on to make a court recommendation on certain lines.

He had discovered during the hearing of the case that these two persons who were charged had been degraded in rank in the particular office they held, had had their emoluments suspended and had, I think, been suspended from office. He recommended that it should be conveyed to the Government that they should be reinstated and that any loss of emoluments they suffered should be restored to them. That recommendation was carried out but there is no doubt that that effort smacked completely of political pursuit. There was a sort of vendetta based on politics and the successful completion of that type of case was stopped by the judicial authority. That is the only case that was brought in the years since the State came into being.

I am told now that there has been an instance of a leakage of information in relation to examination papers and therefore we have Section 5 dealing with the disclosure of confidential information in official contracts. It says that a person shall not communicate to any third party any information relating to a contract and expressed therein to be confidential. I do not know whether it is necessary to have a phrase in the Official Secrets Bill in order to secure the apprehension and the conviction of people who are given papers for printing. I can understand the case in which papers are printed by an official press and given then to the masters in a particular school. It is quite proper not merely that those who give out the information about examination papers but that those who ask for and receive it should be dealt with. Does the matter go further? If a master then conveys to pupils the information he has got from the examination papers, are the pupils to be prosecuted as being conspirators or as being aiders and abettors of what has been done in regard to the examination papers? That, in my opinion, is making a great deal of a small point. As far as I know, there has only been one case recently of such a leakage of information. I do not think it has ever occurred on any great scale. This seems to me to be bringing up something that is completely outside the scope of the Official Secrets Act.

I do not know what will be the new situation in regard to what is called confidential and secret information. There is a zig-zag course pursued through the Bill that is not easy to follow. The Definition Section provides that "`official information' means any secret official code word or password..." There are a lot of phrases to which no objection can be taken until one comes to this phrase: "document or information which is secret or confidential or is expressed to be...." That is a phrase whose first main use was in the Offences Against the State Act. "Matters that were expressed to be" which is also in an Article of the Constitution puts the whole Constitution in abeyance when certain circumstances come about. Under this provision, the court has not the liberty to decide that a matter is secret and confidential. It can be something that somebody expresses to be secret or confidential.

Section 2 (3) provides that where a certificate is given by a Minister that any official code word or password is secret or confidential, that certificate is to be conclusive evidence that it is secret or confidential. If the Minister by a certificate expresses it to be secret or confidential, that is conclusive evidence, and the court cannot hear anything against it. I do not think that is right.

I look at Section 6. It is the section which the Minister says is to break in a little bit on a practice which he says is unknown of people retaining documents when they were members of a Government or were Parliamentary Secretaries. Section 6 is in very general terms. It is limited by subsection (3). Section 6 (1) says that a person shall not retain any official document or anything which constitutes or contains official information. Then we go back to the definition of "official information". It is something that is expressed by a Minister to be secret and confidential and about which there can be no argument. It is, therefore, made an offence for a person to retain any official document or anything which constitutes or contains official information when he has no right to retain it. That means — I am leaving out Ministers and Parliamentary Secretaries—that if any person who gets a document which post facto a Minister says is secret and confidential, then that person has no way of getting the point of view of the court as to whether there is any secrecy or anything confidential about it. It is made an offence for the person to retain it.

Secondly, a person shall comply with all directions issued by a Minister or the secretary of a Department or any person authorised by a Minister as to the return or disposal of any official document which constitutes or contains official information. The Minister has control the whole time. He certifies that some document is secret and confidential. When the certificate is given, the Minister then sends out the direction as to what is to be done with regard to it. The person has no way of complaining that the document is not secret and confidential.

The Taoiseach by the third subparagraph may give directions as to the return or disposal of any original documents which constitute or contain official information. In the case of a person who formerly held office, if he has documents, notwithstanding a certificate by a Minister that they contain information, so long as they are not originals, those documents may be retained. Subsection (4) says: "Subsections (1) and (2) shall not apply to a person who formerly held an office to which subsection (3) applies." I suggest that that was pretty well safeguarded by the use of the word "original". I look at what the Minister is providing: "The Government consider it necessary, however, to be able to deal with the situation where a Minister or Parliamentary Secretary on leaving office would take with him original documents such as files..." Files or part of files could be considered original documents. I should have thought that in the course of what the Minister provided, files, any part of a file or a broken file would be considered as original documents and could be demanded back. I do not know of any case where it has been alleged that any harm was done to the State by this matter of documents. I know there has been objection to people in Government revealing matters they got to know in this House. This seems to be a very extraordinary power to take.

People who previously held Government office are bound not to communicate any information of a confidential character which is in their possession by virtue of their holding office. The Bill makes no change in the law about that. It will be unlawful for any former Minister or Parliamentary Secretary to disclose, without authority, confidential information which has come into his possession during his term of office. It may be unlawful for a person to disclose any information he has secured when he became a member of the Government but that does not apply to this House. People are protected in regard to their utterances in this House. Whatever there may be by way of illegality of a person disclosing information, that cannot apply to any disclosure made in this House. The right in regard to utterances in the House is a constitutional right and cannot be got rid of except by way of amendment of the Constitution.

Part II dealing with official information might be looked at again. Here there seems to be one of those bad swings. Very often, when cases are brought before the courts, particularly where a Government Department is concerned, there is an opportunity given in relation to the plea of privilege. Privilege, in the first instance, was based upon grounds of national security. Nobody had the slightest objection when privilege was claimed in regard to documents belonging to the Admiralty in a famous submarine case because the national security was at stake. It was a question of whether some new invention might not be made open to enemy investigation. There has been a decided swing in recent years since the Thetis case towards claiming privilege on the ground of the national interest. There is a very big divergence between the two. Certainly, in England, where claims are pressed very far, judges are showing very definite objections to blanket claims made by Government Departments on the ground that the disclosure of certain information would be prejudicial to the national interest.

This legislation, which started in 1911 and was carried on in 1920, was based on national security. There has now been a swing over to the "national interest". Of course, that is a matter of opinion. When it comes to the second line, there should be more resort to the court.

Mr. Tully

This Bill has been described as a lawyers' Bill.

Mr. Sherwin

Surely they are all lawyers' Bills?

Mr. Tully

It all depends on the way you spell it. There are a few changes I should like to comment on. One is in Part I under which the receiving of a document is an offence. Is there any protection for the person who unwittingly receives a document? Perhaps, the Minister would explain. It appears that if somebody came into possession of a document without knowing what it was, he would find himself in very serious trouble.

Deputy McGilligan referred to Section 5 in which there is reference to examination papers. I agree with him that that is hardly appropriate in a serious Bill like this. It is referred to in Section 2 of the 1911 Act. We know that some years ago there was a leakage. I understand a 22 year old apprentice printer got possession of some examination papers and thought he would collect a few shillings on them. No teacher was involved. Very few pupils were involved. If it had gone far enough it could have been a very grave scandal. Presumably some way of dealing with such a situation had to be found and I take it that is why the Minister included it in this Bill.

There is reference in Section 8 to the forgery or alteration of official documents. It is an offence to be in possession of an altered official document. It could be tough luck on a person who wanted a birth certificate and someone obligingly procured a certificate altered to suit the individual requiring it ; it would be just too bad if he found he was unwittingly committing an offence.

There is a new offence here in relation to communicating secrets to members of an unlawful organisation —Sections 9 and 10 of Part III. Presumably provision had to be made. The law at the moment is that a person is innocent until he is proved guilty. According to my interpretation of this section, a person is guilty until he can prove himself innocent.

Mr. McQuillan

Is that not the position under the Offences Against the State Act?

Mr. McGilligan

No.

Mr. Tully

I should like the Minister to comment. We would prefer not to adopt the principles underlying the Offences Against the State Act in ordinary legislation emanating from this House. That would be a bad precedent.

Section 12 provides that the prosecution may apply to have a case in relation to official secrets held in camera and, if the prosecution asks, it "shall" be heard in camera. Apparently it will be mandatory and not permissive. I do not think that is a good principle. I think "shall" on page 7, line 2, should be altered to "may". That would maintain the status quo.

In the 1920 Act, there is a provision which makes it an offence to wear illegally any military, naval or air force uniform. There is no provision with regard to the wearing of uniforms in this Bill. Has that been dropped?

Mr. Haughey

It is covered by the Defence Act.

Mr. Sherwin

This Bill deals with communicating with foreign agents and with an illegal organisation. There should be a distinction made there. We know that the illegal organisation has decided to dump its guns. Its members claim that they never attacked the State. There should be a distinction in relation to the term of imprisonment. Where the illegal organisation is concerned, there can be no justification for such a savage sentence as seven years, certainly in time of peace. Whatever mistakes these people made, they think well of their country. In their own tinpot way they think they are more patriotic than any of the rest of us.

So far as foreign agents are concerned, the sentence is not severe enough. We heard a good deal today about Dr. Singer and the damage he did. Had he been convicted, he would have served a 20 year sentence and not just seven years. Consider the agents in America who got possession of the atomic bomb secret. Peacetime or no peacetime, the Yanks executed them. Valuable or important information could be communicated to a foreign agent, and that should warrant more than seven years.

At present there are some groups here known as security groups or private detectives. I have some questions down for Thursday's Order Paper in connection with these groups. An organisation with its headquarters in Britain is attempting to establish itself here. Under cover of such groups, valuable information could be obtained by individuals. Espionage is carried on for the most part by so-called trade agents and people engaged in civilian occupations. Here is a security group endeavouring to establish itself in this city. I have given the Minister particulars. Individuals in this group could go around photographing, or obtaining information which might prove detrimental to the interests of the State.

Can people establish themselves without being licensed or registered? If they have to register, what are the conditions? I would ask the Minister to deal with the matter which could become serious under cover of this alleged security group. I should like to know if they must register and what are the terms of registration. I want some information on that, and I believe something should be included in the Bill to cover the question I am raising.

Major de Valera

There is one point about the Bill as a whole which I should like to raise. I do not intend to go into detail because the remainder of the questions which arise can more properly be dealt with on Committee Stage. The point I want to raise is the question of attempting to prevent by detailed legislation the disclosure of official information. The objection is that the Bill attempts to do that in specific detail. This Bill is likely to fail because in attempting to do that in detail, loopholes will inevitably be left. For instance, looking at the definition of "official document" I ask myself whether a copy, not an accurate copy, would be an official document for the purpose, say, of Section 6. I raise that point because I think that by too much particularising the Bill may defeat itself.

With regard to Section 6, there is no doubt that any Minister who is in office and who is attending to his business must necessarily, for his own protection, keep some kind of record of what he has done. I think it has been customary on occasion for certain documents to be treated as personal and Ministers leaving office could take them with them. The point is that no matter how you legislate, any Minister of State who leaves office is in possession of official information which is within the terms of this Bill, and no Act of Parliament can possibly prevent him from disclosing it, if he is so minded.

If he remains a member of the House and passes across to the other side of the House, he can disclose that information if he so wishes and no one can stop him. If he is not a member of the House, it would not be very difficult to get a member of the House to do it, again if he is so minded. The point I am making is whether the section is really worthwhile and whether it effects anything, when all is said and done. There has been a long tradition here, and by and large, former Ministers from all sides have behaved correctly and honourably in this matter.

Mr. Dillon

By and large.

Major de Valera

After all, you will not stop a case that is not caught by "by and large".

Mr. Dillon

You are telling me.

Major de Valera

I have no doubt that if Deputy Dillon were so minded, he would be just the man to tell me how to do it.

Mr. Dillon

No, no. I have heard annotations of files read out in this House by the Deputy's colleagues.

Major de Valera

Apart from banter in this House, there is a serious point involved, that is, is this section worth enacting?

Mr. Haughey

Section 6?

Major de Valera

Section 6. I may be altruistic but I still have sufficient faith in our political system to believe that most Ministers when in office, and after they leave office, will behave responsibly in the national interest. In other words, there is no serious risk involved.

If we still wish to enact Section 6, I think it is high time we considered the definition at line 15 of Section 2 of "official document". It would be very hard to get a watertight definition which would capture all that and if we did get one, I do not know what the Bill would look like. That is a kind of general comment on the Bill from one point of view.

With regard to Part II, the real problem is the leakages that sometimes occur down the line. In a complex organisation like a State civil service, it is not the Minister, and it is not, I am sure, the heads of Departments, who make a Bill such as this necessary. It is perhaps indiscretion in the long chain through which the actions of the Executive are implemented. The question is: can we really deal with that matter by legislation?

Looking at Section 4, I rather think we are dealing here with a matter of internal administrative discipline within the Civil Service rather than with a question of legislation. The question is whether the problem should be considered from the point of view of whether we want a formal Act of this nature to cover all citizens in regard to such matters, or something in the nature of an internal disciplinary code for the Civil Service.

Having said that in regard to Part II, quite obviously, provision in regard to Part III and similar matters is necessary, and the question is whether or not they go far enough. Details in regard to these matters are best dealt with in Committee so the questions which I should like to raise about the implementation of Section 17 and its enactment in this form would be better dealt with on Committee Stage also.

I should like to finish on the note of asking whether in a re-enactment of this nature, there is really any improvement on prior enactments, and whether the structure of the Bill might be improved by taking some things out for what I might call internal administrative purposes, and concentrating on the things that really matter, namely, the things which are really prejudicial to the safety and order of the State.

Mr. M.J. O'Higgins

I must say that for a change I am rather inclined to agree with Deputy de Valera's approach to this measure. I am rather puzzled as to why the Minister thought it necessary to bring in this Bill at all. There are one or two aspects of it which could be regarded as new legislation, and possibly it is desirable that those matters should be covered but, by and large, as the Minister mentioned when he was introducing the measure, the provisions of the Bill are already contained in the Official Secrets Acts, 1911 and 1920.

Some alterations are being made but I am not at all happy that the changes the Minister is proposing are desirable changes with regard to the procedure, in any event, for the administration of justice in this type of offence. In reply to a question put to him by Deputy Tully, the Minister explained something that he might have explained more fully when introducing the Bill, that is, the fact that a number of matters which were covered in the earlier Official Secrets Acts are covered in the Defence Forces Act at the moment. I hope I am right in this.

The Minister will agree with me that the 1911 Act, and, to some extent, I think the 1920 Act, gave the authorities power to name particular places and to designate them as prohibited places from which people were excluded in time of emergency and provided for power to deal with the person who endeavoured to enter into those places. I have in mind military institutions and installations and such things. There is no mention of such things in the Bill. I am assuming that the reason for that is it is no longer necessary to cover them in an Official Secrets Act because they are covered by the various Defence Forces Acts and regulations and orders that apply.

That is an alteration as between the Bill and existing legislation. So far as previous legislation is concerned, other principal alterations in this Bill are, No. 1, the provision the Minister is making with regard to leakages which might take place in connection with such things as school examination papers and, No. 2, the provisions in Section 6 to which Deputy de Valera has referred, that is, the position of ex-Ministers and ex-Parliamentary Secretaries. Quite frankly, I am not at all happy about that. I do not want the Minister to regard what I am saying as being personal to him, or indeed personal to the Government, but I am very much afraid that the provisions which the Minister is asking the House to write into this Bill are provisions which can be used in a very vicious way for political purposes.

Under the Bill, the question of what is or what is not to be regarded as secret and confidential information is no longer going to be left to the courts to decide. Anyone charged with an offence involving the receipt or disclosure of secret and confidential information will no longer be in a position of going to the courts and asking the court, or the judge and jury, as the case may be, to decide that question, as to whether the information was in fact of a type which should be regarded as secret and confidential. All that is being wiped away by a simple provision which the Minister has written into this Bill, that in future, once this Bill passes, information will be regarded as secret and confidential, if it is so certified by a Minister of State and if the Minister of State gives a certificate to that effect, the courts cannot say anything about it. It must, under the terms of this Bill, be accepted as conclusive evidence that the information is secret and confidential. It does not matter what type of information it is.

Deputy de Valera has referred to Section 6 of the Bill. It does not matter what type of information an ex-Minister or ex-Parliamentary Secretary may possess. He may regard it as quite innocuous so far as ordinary standards of secrecy are concerned. The Minister can give a certificate and that certificate must be accepted without question, without yea or nay, by every court in the land, that the information is official information and is secret. Official information is one of the matters that comes within the definition of secret, according to the Bill.

Mr. Corish

Is that Section 12?

Mr. Dillon

Section 2 (3).

Mr. M.J. O'Higgins

Section 2, subsection (3). To my mind, under this Bill, the Minister is being given a judicial function in this matter. I am not at all happy about it, not at all happy that it could not have very serious repercussions in the political sphere, although neither the Minister nor any Deputy wants that to happen but none of us can see into the future. We can only make the best guess we can and I do not like the door the Minister is opening by reason of that provision. I am not at all sure that that provision would stand up to a test of constitutionality because it does give the Minister, as distinct from the court, a judicial function in that the Minister is the person who, by his certificate, will decide in future what information is secret and confidential.

There are other matters in this Bill which, as Deputy de Valera said, might be better dealt with in Committee but it might be as well to refer to some of them now. Deputy Sherwin might be surprised to learn that under the provisions of this Bill, the penalties are in fact being lowered rather than increased. The Bill provides for penal servitude or imprisonment for a term not exceeding two years and seven years respectively and in the existing legislation the periods are three years and 14 years, so that in fact there is a reduction in the penalties. Again, the explanation of that might possibly lie in the fact that some of the matters in respect of which it was thought the heavier sentences were appropriate are offences which are now covered by other legislation.

With regard to Section 4, reference is made to a duly authorised authority, which means authorised by a Minister or State authority and the State authority is defined in the definition section as meaning the Revenue Commissioners, the Commissioners of Public Works and the Irish Land Commission. I should like the Minister to let us know what is to be the position of the authorities that most Deputies would regard normally as being in the same category as those mentioned in the Bill, for example, the Comptroller and Auditor General, the Attorney General and the various Departments that exist in the courts of justice. I should like to know if, by implication, those authorities are being excluded from the provisions of the Bill and if the Official Secrets Act is not to apply to them or to the staff in those Departments.

I should like to mention also a matter which has been referred to by Deputy Tully, and that is Section 12 of this Bill which provides that "proceedings, including proceedings on appeal, for a contravention of Section 9 shall be heard in camera on the application of the prosecution but the verdict and sentence (if any) shall be announced in public." Deputy Tully quite rightly commented that all that is provided for in this section is that the prosecution may apply and on an application by the prosecution the court has no alternative but to allow the proceedings to be conducted in secret. I cannot understand why the section goes as far as that. It was provided in a section of the 1920 Act that the prosecution could make an application to have the proceedings heard in camera if it was shown that it would have been prejudicial to the national safety to have the proceedings heard in public. There is no similar provision here. Under the 1920 legislation the onus is on the prosecution in making its application to show that it would be prejudicial to the national safety to have the hearing in public, and on such an application being made and on the court having decided that the question of national safety is involved it is open to the court to allow the hearing to be in secret.

That provision is being wiped out, and under Section 12 of this Bill all that will be necessary in the future is that counsel or solicitor on behalf of the State will make an application saying "I want this case heard in camera" and the court is left without discretion in the matter and must accede to the application. I do not think that that is an improvement on the existing position.

Deputy McGilligan has referred to the trend which is disclosed in this Bill. Whether it is good or not I do not attempt to decide. It is a matter for argument. He has pointed out that under the earlier Official Secrets Acts the matter which was exercising the minds of the framers of the legislation was the question of the security and safety of the State but, in this legislation we are drifting to another angle completely, and that is what we choose to call the interest of the State, as distinct from the question of whether the security and safety of the State are involved in the omnibus phrase "the interest of the State".

Major de Valera

Or the convenience of the Administration.

Mr. M.J. O'Higgins

I am hoping that we are not going as far as that, but that could possibly come. Section 10 of this Bill seems to me to be going very far indeed, and I should like the Minister to make some effort to satisfy the House that the provisions which are written into Section 10 are necessary. We should bear in mind when we consider the question of what is necessary under this Bill the fact that in 30 or 40 years there has been I think only one prosecution for offences against the Official Secrets Act in this State. Yet we have the Minister in Section 10 bringing in some provisions which I think are likely to be extremely dangerous on the question of evidence.

That is the question of, if a person is found with the address of a person who is a member of an unlawful organisation, the mere fact of finding the address on him without further evidence, as I read the Bill, may constitute an offence under subsection (2) of Section 10. Under this subsection it is an offence if a person is found with "the name or address of or any other information regarding a foreign agent or a member of an unlawful organisation," if that address "has been found in his possession or has been supplied by him to any other person or has been obtained by him from any other person." There is no saving provision there.

Mr. Haughey

It is only to be evidence, of course. It is not an offence.

Mr. M.J. O'Higgins

Evidence of what?

Mr. Haughey

Evidence that what was being done under Section 9 was being done in a manner prejudicial to the interests of the State. It is only evidence of the fact that it was being done prejudicially.

Mr. M.J. O'Higgins

Of course Section 9 is, if I may so describe it, the hatchet section in this Bill. If a person comes in under Section 9 he has had it, and Section 10, as the Minister says, supplies the evidence that if he is found with this information and this address it will be evidence that he was acting prejudicially to the State.

Mr. Haughey

You must first establish that he did something, and then this will be evidence enabling you to establish that what he did was done prejudicially to the interests of the State.

Mr. M.J. O'Higgins

I do not want to argue that out with the Minister now. This is a matter which we could discuss in more detail on the Committee Stage. I appreciate the Minister's point of view that Section 10 is the section that goes to pack in the evidence to catch a person under Section 9. To take for example the particular portion of Section 10 that I have quoted, the latter part of subsection (2) where the information or the address as the case may be has been supplied by him to any other person or has been obtained by him from any other person, surely that is the type of thing that could be done in a perfectly innocent manner.

Take for example—I think Deputy Tully referred to it jocosely—the case of a person who is an acknowledged member of an unlawful organisation. Supposing that person is elected as a Deputy to this House and chooses to take his seat in the House. Supposing a Minister or ex-Minister as the case may be exercises his privilege as a member of this House to give to the House information which has come into his possession while he was a member of a Government. That may be secret, confidential official information, and he is giving it to the member of an illegal organisation because the member of the illegal organisation has become a member of this House and is entitled to take part in the discussions in this House. I am not at all sure that having regard to the way in which this piece of legislation is framed an effort might not be made to institute proceedings against the ex-Minister or ex-Parliamentary Secretary who in the presence of a member of an illegal organisation disclosed information of that type in this House.

Mr. McQuillan

A member of an illegal organisation would consider this House illegal.

Mr. M.J. O'Higgins

That is a point of view, I suppose.

Mr. McQuillan

It is a matter of who is in a position to lock up whom.

Mr. Dillon

Not yet.

Mr. McQuillan

You are safe enough.

Mr. Dillon

So long as this House stands I am, not thereafter.

Mr. McQuillan

Or the convenience of the Administration, as Deputy Vivion de Valera said.

Mr. M.J. O'Higgins

I take it that Deputy McQuillan does not share the views he has attributed to members of illegal organisations.

Mr. McQuillan

It is not many years since Deputy Dillon was in danger of being locked up.

Mr. M.J. O'Higgins

I am putting a fair proposition to the Deputy: that he does not share those views?

Mr. Dillon

He is making a somewhat devious reply.

Dr. Browne

They are certainly not Deputy Dillon's views.

Mr. M.J. O'Higgins

I trust they are not Deputy Dr. Browne's views, either.

Mr. Dillon

He is a little coy.

Mr. M.J. O'Higgins

I suppose Deputy Dr. Browne and Deputy McQuillan will be able to explain their position, if they discuss this measure.

I want to pass on to Section 16, again for the purpose of asking the Minister to consider it further. I have no objection to the general provisions of Section 16 regarding search warrants. I think, by and large, those are the provisions which appear in the existing legislation, with this difference, however. Subsection (2) of Section 16 provides for the case where a Superintendent of the Garda, acting on his own initiative, considers he has reasonable grounds for believing that in the interests of the State immediate action is necessary and immediately issues a search warrant. There is a similar provision in the 1911 Act; but there, I think, in its amended form, that Act permits the Superintendent to issue a search warrant only if two conditions are fulfilled: (1) if he regards it as necessary in the interest of the State, and (2) if it is a case of great emergency. Here again the Minister is taking out the question of an emergency or an emergency situation developing.

Mr. Haughey

Not really. It is the same concept.

Mr. M.J. O'Higgins

No. I think, with respect, it is not, because in both the existing legislation and in the legislation the Minister is proposing to the House, procedure is laid down for obtaining a search warrant from the district court. That should be the ordinary procedure. If there is a question of an emergency situation developing, then I agree that the Superintendent should be allowed to issue the search warrant himself, but only if the emergency situation develops. The Minister is nodding his head. I take it he agrees with me?

Mr. Haughey

Fully.

Mr. M.J. O'Higgins

If so, why not leave the provision there already which made it clear that the Superintendent was only to exercise that authority if an emergency warranted it? The Minister is taking the idea and concept of an emergency situation developing completely out of the legislation.

Mr. Haughey

I am putting it a little differently—that is all. Immediate action, if necessary.

Mr. M.J. O'Higgins

A little differently to the extent of changing it completely. In one case, it is laid down in legislation that the Superintendent may do it in a case of great emergency. Now the Minister says he may do it whether there is a case of emergency or not. That is the difference. The Minister thinks it is a little different but I think it goes a bit further than, that.

May I go back to Section 5 for a minute? Deputy McGilligan referred to this already. This might be described briefly as the section dealing with printing, Government contracts and so on. It is not entirely clear whether or not in the case of a leakage with regard to examination papers the ultimate recipients of the information, the schoolchildren who act on it, will be open under this legislation to criminal prosecution? I do not think that is intended, but I should like the Minister to confirm the position. Secondly, it is possible under this Bill as framed for a worker in a printing firm to be guilty of an offence and to be liable to extremely heavy penalties for the disclosure of confidential information. It would be fair to the printing workers that there should be some provision written into this Bill to ensure that the employer, the person who gets the contract, will have an obligation on him to explain to the workers that the job is one of a secret nature which the workers are not permitted to talk about or disclose in any way. There should be some onus on the employer to give fair warning to employees whenever there is the slightest danger of this Act being contravened innocently. The Minister will probably appreciate the type of case I have in mind.

There are a number of these matters we can discuss in more detail later on. I hope the Minister will have another close look at this Bill between now and the Committee Stage and that some of the matters which have been referred to here will be dealt with by means of ministerial amendments.

Dr. Browne

This could be a most important piece of legislation and yet we are given to understand it is merely a matter of the consolidation, and the expansion to some extent, of statues already in operation. What occurs to one immediately, of course, is there are many things this House could be doing which are very much more important than consolidating the official secrets legislation. There are many useful private motions on the Order Paper which the Government do not appear to be able to afford time to discuss. For that reason, I am puzzled to know why the Government, on the one hand, say we cannot have discussion on what we believe to be important subjects and ask the House to spend its time passing what is alleged to be a piece of consolidating legislation, on the other. Possibly this is a very technical Bill and I am like a man in the street attempting to understand it to the best of my ability. But any person has a right to be very careful about any legislation passed by any Parliament which in any way tends to restrict arbitrarily the rights of individuals within its society.

Unfortunately, this legislation is introduced at a rather delicate and dangerous time in the life of the State. We all know that great changes are taking place in Europe. We are part of those changes; we are necessarily bound up in them and we will be carried along by many of those changes. It is in the context of the fears that many of us have that I should like to consider the Bill. The fear is, of course, that relatively shortly great changes will take place here in relation to our defence position, in relation to our military commitments and possibly even our air force commitments. In those circumstances, assuming that we eventually become members of some great European defence organisation—NATO or some successor to it— a Bill of this kind can become particularly dangerous, especially, as has been pointed out by other Deputies, when there has been little or no suggestion that anybody has attempted to betray the State or our society to foreign powers.

It is, I suppose, a tribute to our people and one which, if circumstances were normal, we could expect would continue—that there would not be any basic disloyalty among our people that would lead to a betrayal of our State. However, in the new proposed European society of which we will become members, we will no longer be our own bosses entirely. We might find ourselves becoming subject to dictates which do not originate in the then Government in Merrion Street and we might find ourselves being told, because of our subordinate position in such an organisation, that actions which would be accepted and have been accepted by our own Governments over the years as being perfectly reasonable and normal are, in the minds of outsiders, dangerous, sinister and prejudicial to the whole of the new community of which we will become members. This legislation is designed to provide for our position in any such society.

People may think that I am unnecessarily worried or trying to create scares when they are not there. If the Minister can reassure me I shall be very glad, but at the present moment there are young men and women in jail in Britain for offences against the State under the Official Secrets Act. These people were guilty of what many of us would consider a very fine, courageous and disinterested act—their determination to try to the best of their ability, tacitly, without the use of force, without in their view trying to disrupt the forces of the State, to prevent Britain pursuing a particular course in relation to its defence policy.

These people found themselves up on charges before the courts and eventually, as a result of their actions, found themselves in jail. They had made what would appear to most of us to be a protest in a perfectly democratic way, without violence, but because of the terms of an old law, they were presumed by the courts to have acted in a manner prejudicial to the safety and preservation of the State. In war-time, many powers are easily understandable, but in peacetime, they could be very dangerous to put into the hands of an irresponsible Minister. There are circumstances in which I would not exclude the present Minister from behaving in an irresponsible way. I admit that.

Mr. Haughey

Our conceptions of responsibility differ.

Dr. Browne

Absolutely. The Minister has made my point. On the one hand, you have at the moment the policy of the United States deciding that anybody who becomes a member of the Communist Party intends to overthrow the State and must be kept in jail. On the other hand, you have Nkrumah of Ghana worried because his political opponents behave in a manner which he says is prejudicial to the safety of the State and he is threatening to imprison them virtually for life. This legislation in the U.S. and Ghana is regrettably wielded by Ministers who happen to take a particular view. We have Franco's Spain, Salazar's Portugal, where jails are full of the people who do not toe the Party line as they see it. All these people are in jail because, in the opinion of the Government or of the Minister, they behaved in a manner prejudicial to the safety and preservation of the State.

Section 10 is the section of this Bill with which I am particularly concerned. I do not know enough about this legislation to say whether it is new. It would be interesting if the Minister told us to what extent it is new and, if so, why he has introduced it. It seems to me that any Attorney General or any law officer of the State who wanted to lock up any of his political opponents could use that section as it is at present in a completely irresponsible way and in a manner which would give the person charged virtually no power of reply at all. Subsection (2) says:

A person shall, unless he proves the contrary, be deemed to have been in communication with a foreign agent or a member of an unlawful organisation if he has (whether within or outside the State) visited the address of a foreign agent or a member of an unlawful organisation or consorted or associated with such agent or member, or if (whether within or outside the State) the name or address of or any other information regarding a foreign agent or a member of an unlawful organisation has been found in his possession or has been supplied by him to any other person or has been obtained by him from any other person.

I cannot help believing that if the Minister wants some specific power, some reasonable power, it must be possible for his legal advisers to devise a subsection which does not leave itself so wide open to any interpretation a Minister for the time being cares to put on it.

In Section 9, for instance, we read:

A person shall not, in any manner prejudicial to the safety or preservation of the State—

(a) obtain, record, communicate to any other person or publish, or

(b) have in his possession ...

What would be the position, looking at it from the pessimistic point of view, when we become a member of the European defence group—as now seems more and more likely with the shifting of the Minister for External Affairs away from his former position with the United Nations—if we make available to the Germans, the French, the Americans, for instance, Polaris or nuclear bases in this country? If protests are carried out by our people, as I hope they will be carried out by our people, against the establishment or the maintenance of these bases, surely a section of this kind can be used quite easily by the Minister to prevent any such peaceful protests?

Mr. Haughey

How?

Dr. Browne

It is conceivable, for instance, that if the police behave badly at these protests, if photographs are taken by press photographers and if the papers or the paper—is there one?— that would agree to publish such a photograph of, say, a police brutality, could they be charged with exposing the fact that we had a nuclear base, a Polaris base? Could that be used as a basis to censure the exposure by the newspaper of any police action designed to prevent any protest being carried out by our people against any of these rather dreadful propositions, which I believe will soon become a reality, in our country?

I would ask the Minister why it is, in relation to this legislation, we seem to have to revert as far as 1911, to the legislation of that time, when conditions surely were very much different from what they are now. I should like to support, to the extent that I am on all-fours with it, the plea concerning Section 12 about trial in camera. Again, I think that that is a very dangerous proposition. I wonder whether it should be included at all.

In relation to this whole question of unlawful organisations, surely the Minister has enough powers under the Offences Against the State Act, unless he intends to get rid of that, which would be a very welcome development, unless he intends to get rid of the arbitrary arrests and trial, trial in camera, trial by military courts, and so on. Has the Minister not sufficient power already under that legislation to make it unnecessary to expand the powers he already has in this Official Secrets Bill? I would ask the Minister to be good enough to expand the reasons for Section 10 and the full meaning of that section, of which I, at any rate, have a certain amount of suspicion.

Mr. Dillon

While I have never said, and do not believe, that Deputy Dr. Browne is a Communist, I was lost in admiration of his circling around the world. When he came into the vicinity of Mr. Ulbricht and Mr. Khrushchev, he sheered off.

Dr. Browne

Deputy Dillon should give up that kind of thing.

Mr. Dillon

It is a peculiar allergy that when he gets just us to the wall in East Berlin, he backs away and you find him careering around Spain and Portugal.

Dr. Browne

And Nkrumah.

Mr. Dillon

He moved over to West Africa this time and gave Mr. Nkrumah a run for his money. It is an interesting antithesis that you get the United States and Mr. Nkrumah and you go down to Iberia and the wall——

Mr. McQuillan

Was Deputy Dillon not inspecting the wall lately and did he not go across it?

Mr. Dillon

I was, and I went across it. If the Deputy had done likewise, he would give his colleague a poke in the ribs. I hope Deputy Dr. Browne and every other Deputy will borrow from the library or buy a copy of the book called When the Kissing had to Stop. Maybe Deputy Dr. Browne has read it: I commend it to him. It is written by a man called Constantin Fitzgibbon.

Dr. Browne

What about Salazar and Angola and how Franco treats his prisoners?

Mr. Dillon

I am not an authority on Angola. I am anxious that Deputy Dr. Browne and Deputy McQuillan should both read that book. It has a nice venturesome kind of title.

Mr. Haughey

It sounds like that kind of book which I would ban.

Mr. Dillon

It is one of the most interesting political novels written since the end of the war. I believe it would be of very great interest to a number of Deputies and, even better, that it would do them good. It would open their eyes to a great many things about which they are relatively blind so far.

The Minister protests that this is substantially a codification Bill. There is nothing more dangerous than a Bill introduced into this House under the description of "substantially a codification Bill" because that disarms the critic. You are inclined to let the thing go because the Minister says it is a codification and, two years later, he says: "I never said that: I said it was "substantially'."

I regard Section 2 (3) as extremely undesirable. It is certainly a new departure. It seems to me to be a breach of a very important element in our whole political system, that is, that the independent judiciary are made independent so as to stand as an impregnable wall between the average citizen and an Executive prone to a tyrannical exercise of power. It is surely undesirable that if an ordinary citizen has recourse to the courts for vindication and protection, he can be met by the Executive in court with a certificate which ends the argument and which sets aside the discretion of the court to intervene.

Is there any precedent, outside an instrument like the Special Powers Act —which was specifically designed to deal with an immediate matter of urgency—where a Minister has power to offer as conclusive evidence his certificate of fact? There is a danger in this because unfortunately there is a growing number of legislative precedents to the proposition that the certificate of a Minister shall be prima facie regarded as proof of fact. There is always a tendency to step beyond that —and that is bad enough—to the point of making it conclusive evidence. I do not think the national Executive is justified in making that claim on the Dáil, that we should be party to that decision.

I do not agree with Deputy Dr. Browne that sitting in the public street for the purpose of defying the law is a peaceful and democratic way of demonstrating disagreement. I think it shows a complete misunderstanding of the democratic process. The democratic process is to come here, as Deputy Dr. Browne has done, and make his tumult here and go out to the street-corner, as he has done, and seek the suffrage of one's neighbours and if he can get it arrive back in the Legislature with the same rights as the Taoiseach or any other Deputy. That is the democratic process, but to claim that to sit in the public street and hold up the normal functioning of society until the majority yield to the minority is peaceful and democratic is simply fantastic.

Dr. Browne

. It liberated India.

Mr. Dillon

Revolution has liberated many people.

Dr. Browne

Peaceful revolution— Gandhi.

Mr. Dillon

It was not Gandhi who liberated India. We could get into a very protracted discussion about that. Do not forget Amritsar also.

Dr. Browne

One can go back further than that.

Mr. Dillon

The Deputy should familiarise himself with these things. He sees only one side of it.

Dr. Browne

And Deputy Dillon sees both sides.

Mr. Dillon

Peaceful agitation in an ordered society can achieve a great deal but it is a very great betrayal of the democratic process to advocate that which is clearly undemocratic as democracy. Here again there is a danger of behaving like Mr. Khrushchev and his colleagues because that is a technique that is not unknown, adopting the language of democracy and attaching an entirely different meaning to it.

Dr. Browne

I think Ulbricht and Khrushchev hate us much more than they hate you.

Mr. Dillon

That is consoling. If they hate you much more than they hate me, we are going places. I am constantly concerned to reform Deputy Dr. Browne because I have a secret belief that he is not as bad as he looks, or at least as bad as he sounds. I am opposed heart and soul to subsection (3) of Section 2 and I cannot believe that the Minister will persist in retaining it in the Bill.

I want to voice another thought about Section 10. It is bad in principle to treat on an equal basis communication with foreign agents and communication with unlawful organisations in one's own country. You may say that the two things are closely analogous from the point of view of the law. That may be, but in reality, they are not analogous. There will be a universal consensus of opinion that the person who seeks to betray the interests or secrets of this country to a foreign agent is guilty of high treason and there is no use in pretending, with our history, that we look in the same way on the foreign agent and the illegal organisation, no matter how emphatically we reprobate them.

No Act of this House is worth much more than the paper on which it is written if it does not carry the feeling and sentiment of the people with it. We could legislate forever to identify illegal organisations of our own people with foreign agents but people will not believe it. They do not accept it: I do not accept it and I suppose there are few Deputies who reprobate more strongly than I do the activities of illegal organisations and who have a clearer record with which to utter that reprobation. But, even with that background, I do not look and I did not look upon the Minister's colleagues when they were making war on the legitimate Government of this State in the same way as I would have looked upon a foreign power waging war on the State. I would reprobate both, and did so loudly and long, but there was a difference and I think it is a difference we should recognise.

We should not seek in this Section 10 to treat communication with the foreign agent and membership of an unlawful organisation pari passu. By all means let sufficient provision be made in the law to bring to account persons who participate in the activities of unlawful organisations, but do not seek to identify them with those who communicate with foreign agents because it will not carry the consent and the full and wholehearted support of all our people.

I understand that one of the sections of this measure goes to the point of making it an offence—the contractor section—to publishing an examination paper. I think I am right in this: The Official Secrets Act ought to deal with what we classify as espionage by foreign agents. If that is the purpose of the Bill, we shall not have many difficulties in arriving at unanimous agreements as to what the Bill should provide. I believe we should legislate separately for questions such as the evil of the improper disclosure by a contractor of an examination paper which should be private to the Department of Education. We should legislate separately for offences of that character. I do not think we should, for the purpose of tidying things up, seek to confound the wholly different natures of offences such as the unauthorised or premature publication of an examination paper and the correspondence of an agent of a foreign power for the purpose of betraying the fundamental liberties of the State. There is no analogy between the two things. The people do not understand any analogy you seek to show and you rob the Legislature of any of the support it ought to have.

We all agree that when we are dealing with people concerned to betray the vital interests of the State to foreign agents, you must have strong powers and we would be prepared to give strong powers, provided they are strictly confined to that particular abuse. We are all prepared, or the great majority of us are —if dealing with an illegal organisation, it may be necessary—to give wide powers but I think that we should do that with due recognition of the ordinary and well-known sentiments of our people.

We all agree that there are certain confidential documents which no public servant ought to discuss and there are certain documents, such as examination papers, which are in the hands of a contractor and which must be kept secret, but it seems, other than that, to seek to provide in the same piece of legislation for offences of that character and offences of espionage and sending out information on the confidential affairs of the State to a foreign power is not the proper procedure.

Debate adjourned.

The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, March 28th, 1962.