Official Secrets Bill, 1962—Committee Stage.

Mr. McGilligan

I move amendment No. 1:

In subsection (1), page 3, lines 21 and 22, to delete "or is expressed to be either".

I have a group of amendments which are more or less concentrated on the same point. First of all, I wish to delete certain words and these, which are in the Definition Section, have to be tied together with Section 2 (3). The Bill has two angles of approach. One is with regard to the preservation and security of the State and whatever is done in that regard is acceptable. Another group of sections deal with official information and this part of the Definition Section applies there. The old Acts dealt with espionage and anything that had to do with the protection of the State in regard to places where munitions were made, where there were dockyards, shipyards or any place where there were collections of personnel of the Defence Force type. That is one section. This legislation goes much wider than that and deals with what is called "official information". Part II is completely confined to official information and by Section 4 it is made an offence to communicate any official information.

I have tried by amendment to make it relate to matters prejudicial to the safety or interest of the State. This is just bold and plain. A person who communicates official information is guilty of an offence unless he is authorised. In other words, a person is presumed to be guilty the moment the fact is established that he has communicated to somebody else something called "official information." That, therefore, makes the definition of official information of great importance. In the definition of official information quite a number of words is used. It includes any plan or model or anything like that which is secret or confidential or is expressed to be secret or confidential and has been in the possession of a holder by virtue of his office.

This is one of the important matters arising, whether what has been communicated—because that would be a matter of fact—is official information. Official information can be anything, not what a court considers to be secret and confidential but something that is expressed to be. The full effect of that is to be seen from subsection (3) where a certificate given under the seal of a Minister that any code word, or certain other things, is secret or confidential is to be evidence and conclusive evidence. Therefore, I want to avoid the Minister being given the power to say something which is stamped in such way is secret or confidential and the court cannot consider whether the thing is secret or confidential or not. I am trying to make sure that this Part of the Act would only be applied in regard to things prejudicial to either the safety or—if you want it to go so far, although I do not—the interests of the State. All that is left out. The person may be prosecuted and all that has to be established is the fact that he communicated some information to somebody and, secondly, that there is a certificate from some Minister to say the matter communicated is secret or confidential. I think that is not a power that should be given. It would be lessening it if Part II contained in respect of the communication a guarding phrase that it was only to be in relation to things prejudicial either to the safety or interests of the State. As it is, it is a simple offence to communicate something which a Minister has sealed as secret or confidential and that proves the whole thing. The offence is then established. I do not think that is proper.

This Act is supposed to be a reproduction with modern attachments of the old Official Secrets Acts. They were for the purpose of espionage and matters dealing with war and matters that might be of use to an emeny. That is all cleared away. I do not think there is any necessity for it to go very much wider than the old Official Secrets Acts. I seek to minimise what is proposed by saying, first of all, that it must be secret and confidential. It must be the subject of a court inquiry. The court will say whether it is confidential or secret. I do not think the matter should be dressed up in this way that once communication is proved and the certificate is proved that is the end of the trial.

Minister for Justice (Mr. Haughey)

I am not sure that Deputy McGilligan need be as worried about this provision as he appears to be. This is a fairly simple concept. We are defining, as Deputy McGilligan pointed out, "official information" and the words which he would wish to be deleted simply propose to bring in under the ambit of official information something which is expressed to be secret or confidential. In other words, if the document is stamped or marked officially as secret and confidential, then that comes within the definition of official information which may not be disclosed without proper authority. It is a simple, practical proposal and I really cannot see where any great evil is going to flow from its inclusion or, indeed, that anything in particular is going to be gained by leaving out these words. Do we all not want the position where a public servant would not be permitted to disclose some document which comes to him and is specifically marked secret or confidential? It is putting him on his guard that this, in particular, is not to be disclosed. I think we are perfectly entitled to include it.

I admit there will be grounds for real differences of opinion between Deputy McGilligan and myself when it comes to later provisions on which he has amendments, for example, subsection (3) of this section and subsection (1) of Section 4, but I do not think this is the ground on which to fight that particular matter.

Mr. McGilligan

I shall have to read the definition. The definition reads:

"Official information" means any secret official code word or password—

that is all right—

and any sketch, plan, model, article, note, document or information which is secret or confidential——

and the communication of that to another person is going to be an offence. It means there is going to be an extensive use on the administration side of a stamp saying things are secret or confidential. Why should it not be left to a court to say they are secret or confidential? That is the purpose of my amendment. I do not want to have it put in the form "expressed to be", because that means the court has no say in the matter. The judge will look at it and say: "It is marked on the document that it is secret and confidential and that is the end of it." If a certificate is given in relation to the matter which is not marked "secret and confidential" under subsection (3) that is conclusive evidence.

Mr. Haughey

That is a different point.

Mr. McGilligan

It is the same point. If I am a public servant and a document comes into my hands which is something of no great importance to my mind and I hand it over to somebody else, immediately a Minister can issue a certificate that that is secret and confidential and I cannot get away from that, even though it was not marked secret and confidential when it came into my possession. If such a thing happened, I have no redress from the action of the Minister in issuing the certificate that it is secret and confidential.

Mr. Haughey

It is clear from the wording.

Mr. McGilligan

It is not clear. Even if it were clear, there are words here which are clearly established for the purpose of determining whether something should be regarded as secret and confidential. All that has to be done is to express it to be secret and confidential. I tie this up with subsection (3) because there is nothing to distinguish the two cases. I am a public official and a document comes into my hand and I pass it on to somebody else. The Minister sees it and issues a certificate that it is secret and confidential and immediately the consideration of whether it is or not is ruled out from any court. The Minister certifies that it is and you cannot go against that.

Mr. Haughey

I have already indicated that there is scope for disagreement between Deputy McGilligan and myself as regards subsection (3), but that is not what is involved here. It seems clear from the reading of subsection (1) of Section 2 that what we are dealing with here is a document or information in the possession of a public servant which is stamped "secret" or "confidential" and if he passes it on, he is surely culpable.

Mr. McGilligan

No.

Mr. Sweetman

That is not what is expressed here.

Mr. Haughey

Surely we are entitled to say to a public servant: "We are going to mark this as secret or confidential and you are not to disclose this or anything else that is expressed to be such"? It is clear from the meaning that the words "expressed to be such" must refer to the time that it comes into the custody and control of the holder of the public office.

Mr. Sweetman

No.

Mr. McGilligan

It is not in the definition. The words are: "the communication of which becomes an offence afterwards if a document is marked secret or confidential or is expressed to be such". If it is not expressed to be secret or confidential, there can be an argument before the court as to whether it is or not. Is that not the intention?

Mr. Haughey

Yes.

Mr. McGilligan

If it is expressed to be secret and confidential, there can be no argument.

Mr. Haughey

No. Surely a Minister or Government is entitled to decide whether a thing is secret or confidential and mark it as such, thus putting every official on notice that it is secret and confidential and that he is not to disclose it?

Mr. McGilligan

He can also be charged with communicating a document which is not so marked but about which there can be an argument as to whether it is secret and confidential. They want to have it both ways.

Mr. Sweetman

I spent a lot of time last week-end going through a lot of old papers and I found a memorandum which was about seven years old and which was marked "secret". It is of no consequence now and I threw it into my wastepaper basket. It was marked "secret" but it is not of the slightest consequence to anybody now. Under the terms of this Bill that document is still expressed to be secret and not merely would I be guilty of an offence by throwing it into the wastepaper basket but if I sold it to a wastepaper man he would also be guilty of an offence. Under this Bill the court could not challenge the fact that that document is secret although everybody would know that its secrecy had ended years ago.

It was secret at the time of its preparation prior to the Budget of 1955. Under this Bill it is still secret. It is still a secret document. Nobody could possibly stand up in a defence that would explode that. It is still expressed to be secret so that the Minister had better take back the definition and have another look at it. Deputy McGilligan has punched one hole in it and I have punched another.

Mr. Haughey

I will agree to have another look at the definition but I do not think that Deputy Sweetman has exploded it at all. My view about that document is that it is still a secret or confidential document and it is Deputy Sweetman's obligation to destroy it as such or, if he knows its contents to be no longer secret or confidential——

Mr. Sweetman

It is expressed to be secret.

Mr. Haughey

The document itself would still be so.

Mr. McGilligan

But no judge would hold it to be secret and confidential. If you leave it for judicial determination, the fact that it is stamped may be taken to be evidence of intention but to say it is secret and confidential just because it is stamped——

Mr. Haughey

Effluxion of time makes any document unsecret, if you like, but the fact that the document was marked secret puts everybody on his guard not to disclose the contents.

Mr. McGilligan

Certainly, but to say that because it is stamped makes it secret and confidential is, in effect, ousting the courts.

Mr. Haughey

This might take away from the Minister for Finance the right to decide that a document was secret and confidential. It would take it away from, say, Deputy Sweetman, as a responsible Minister for Finance, who says: "I am marking this secret and confidential..."

Mr. McGilligan

For the time being. Then he throws it to some waste paper merchant. Is that not communicating it?

Mr. Haughey

I agree. A reasonable time must be allowed to elapse.

Mr. McGilligan

The wording of the section deals with a person who has been variously adjudicated on by the courts. It is going to be an offence to pass out secret information but just to say that because there was a stamp on it it is secret and confidential is going too far.

Mr. McGilligan

I move amendment No. 2:

In subsection (1), page 3, line 23, to delete "by virtue of his office" and to insert the said words after "access" in line 24.

The document has to be expressed to be secret and it must have been in the possession of a holder of a public office, or by virtue of public office to which he has had access.

Mr. Haughey

I should like to say that I am accepting this amendment.

Mr. Sweetman

Does "public office" solely refer to office in the State?

Mr. Haughey

It is defined in the next section.

Mr. Sweetman

Where a person is the holder of an office in the State and goes to serve in the Congo, for example, is that covered?

Mr. Haughey

I have no information about that particular matter. As I said, I am accepting the amendment.

Mr. Sweetman

Then General MacKeown would have been permitted to make political speeches in the Congo. It is a good thing that people cannot shoot their mouths off on things they know nothing about.

Mr. McGilligan

I move Amendment No. 4:

In subsection (1), page 3, line 29, after "by" to insert "the Houses of the Oireachtas or either of them".

I do not know how far this goes but if we are to consider a public office, or any person appointed to it by a tribunal, I think we should enlarge on that. I do not know if every tribunal is set up by a Government or a Minister. Surely Commissions have been established by the Seanad or by one or both Houses? If the Minister has to appoint every Commission, then my point is covered.

Mr. Haughey

Nearly all Commissions are, in fact, set up by the Government. The resolution may be a joint one of Dáil and Seanad but the actual setting up is done by the Government or a Minister. I do not think there is any need for the amendment because the officials working with Oireachtas Commissions would be covered in any event. This is an office or employment remunerated out of the Central Fund.

Mr. McGilligan

There is a Commission in existence at the moment dealing with itinerants. I do not know whether there are any public servants on that. I know there are a lot of outsiders on that Commission. Are they to be covered?

Mr. Haughey

Yes. They are set up by the Government.

Mr. McGilligan

Will a person on a Commission then be tied in under the Official Secrets Act?

Mr. Haughey

Yes, in regard to secret or confidential information.

Mr. McGilligan

To deal with tinkers.

Mr. Haughey

Yes.

Mr. Sweetman

Does that mean to say that a member of that Commission who gets some information in the course of his membership is prohibited ever afterwards from producing that information even when defending his minority report? That would be nonsense.

Mr. Haughey

First of all, the information must be secret or confidential.

Mr. McGilligan

It must not. It must be expressed to be.

Mr. Haughey

Then, once the minority report is published——

Mr. Sweetman

It is not here in this Bill.

Mr. McGilligan

He has to be authorised to communicate.

Mr. McGilligan

I move amendment No. 5:

In subsection (1), to delete lines 33 to 35.

I do not know what type of State authority this is meant to cover. The Minister is moving to bring in the Comptroller and Auditor General and the Attorney General. They are referred to in Sections 4 and 5. I want information on this. It is deemed to be an offence for a person to communicate information which is expressed to be secret and confidential. It is not an offence, if he is duly authorised. The due authorisation may come from a Minister or from a person authorised by a Minister or from a State authority. I then go back to the definition of "State authority" to find out who are covered and I find the Revenue Commissioners, the Public Works Commissioners and the Land Commission. I then ask myself: Can the Commissioners of Public Works or the members of the Land Commission give due authorisation without ministerial sanction?

Mr. Haughey

Yes.

Mr. McGilligan

Can the Attorney General?

Mr. Haughey

Yes.

Mr. McGilligan

Can the person brought in here?

Mr. Haughey

The Comptroller and Auditor General.

Mr. McGilligan

What can the Attorney General authorise?

Mr. Haughey

He authorises the disclosure of official information.

Mr. McGilligan

By himself, contrary to a ministerial point of view?

Mr. Haughey

If my amendment is accepted, yes.

Mr. McGilligan

That is what I mean. We are bringing in the Revenue Commissioners, the Commissioners of Public Works and the Land Commissioners and, in addition, the Attorney General and the Comptroller and Auditor General. I thought what we required for an authorisation would be ministerial sanction or—it goes a bit further than that—some person authorised by a Minister. Surely it ought to be possible to bring home ministerial responsibility for what comes to the exclusion of an offence. Communication is an offence, if the matter is confidential, but a person can be absolved from committing an offence if it is duly authorised. Who gives due authorisation? I suggest it should be brought home to a Minister, either a Minister or somebody acting on his behalf. I do not like these other people being brought in. I do not know what authorisation would ordinarily come from, say, the Comptroller and Auditor General, the Revenue Commissioners or any of these bodies. I cannot understand how they would give a due authorisation which had not ministerial backing and if the ministerial backing is there, why not bring him into it?

Mr. Haughey

The reason the first three are included, that is, the Revenue Commissioners, the Commissioners of Public Works and the Irish Land Commission, is that they are such vast bidies and a great deal of their work is of such a routine nature that it is desirable, from the practical point of view, that they should be able to issue their own authorisations. The reason for the inclusion of the Comptroller and Auditor General and the Attorney General is that these are constitutional personages with specific constitutional functions and, therefore, they should be entitled to issue their own authorisations, particularly as they are entitled to exercise functions without relation to any Minister.

Mr. McGilligan

In the last case, it was stated that the Attorney General was under the Taoiseach, an attechment to the Taoiseach's office.

Mr. Haughey

He is a constitutional officer.

Mr. McGilligan

In the case of The Attorney General and T. D. McLoughlin, it was stated by the judges of the court that the Attorney General is in the Department of the Taoiseach and, signs on it, the Minister for Finance takes the Vote in this House. The Comptroller and Auditor General is, undoubtedly, supposed to have a position of independence, but I do not know that the Land Commissioners or the Commissioners of Public Works or the Revenue Commissioners could do anything without, in the last resort, ministerial sanction.

Mr. Haughey

I agree they would still be subject——

Mr. McGilligan

It is contemplated, then, that an authorisation for communicating documents of a secret and confidential nature may be given by these three group of people, without ministerial sanction?

Mr. Haughey

Yes.

Mr. McGilligan

That is certainly an enlargement of the powers of these people.

Mr. Haughey

Just as a practical, working arrangement.

Mr. McGilligan

Yes, and if there were not going to be so much stamping of documents as secret and confidential, there would not be any great necessity for it. It is definitely a new power now being given to people under ministerial control, each of them —I am making a possible exception of the Comptroller and Auditor General——

Mr. Haughey

I feel it is a sensible, practical proposition.

Mr. Haughey

I move amendment No. 6:

In subsection (1), page 3, line 33, before "the Revenue Commissioners" to insert "the Attorney General, the Comptroller and Auditor General."

Mr. Sweetman

You would not like to add Dr. Singer in as well?

Mr. McGilligan

I move amendment No. 7:

To delete subsection (3).

I have discussed this to a certain extent but I do want to call attention to it again. This is all tied into the same section as that in which this matter of secret and confidential information occurs and in respect of this matter a certificate given under the seal of a Minister—I have a minor amendment to that—I go to the final words—that any document or information specified or indicated in the certificate is secret or confidential shall be conclusive evidence of the fact so certified. There are two positions taken up in the rules in accordance with evidence where there is quite a variety of phrases used.

Mr. Haughey

I should like to indicate that I am prepared to accept amendment No. 8.

Mr. McGilligan

That is a minor matter.

Mr. Sweetman

Surely the Minister is accepting No. 10? There could not be any argument about No. 10. He is not accepting No. 10?

Mr. McGilligan

The two positions are where there is evidence which means prima facie evidence or conclusive evidence. The law of evidence is that things either stated or deemed to be something shall be evidence until the contrary is proved or shall be presumed to be something—all meaning they are not conclusive. “Conclusive evidence” means that no evidence can be brought against it. Whatever the certificate says is conclusive; then that finishes the whole matter. It is very seldom indeed that the word “conclusive” is used in anything that is made an offence. This is not a question of something in the merchant shipping code or the Sale of Goods Act. This is something that is going to be made an offence and you have here power given to a Minister under a seal to declare that something is conclusive evidence, which means there can be no argument about it. The court is powerless to express its own point of view with regard to whatever is at issue. It simply has a ministerial certificate and that finishes the whole matter. It is an outrageous imposition.

Mr. Haughey

I hate to find myself in the position of having to oppose eminent practitioners and lawyers of standing on matter of this sort. I do so only because it is necessary for the practical working of this Bill. As a layman, I do not like the idea that the court would be precluded from examining a matter of this sort but here is the practical difficulty: We have information which is secret or confidential and we want to bring a prosecution in relation to its disclosure. Surely it is unreasonable to expect that in order to succeed in that prosecution, we have to go into open court and have the whole information disclosed in open court—the very information we want kept secret? In order to succeed om the prosecution we shall have to disclose it to the world at large. Would that not make nonsense of the whole Bill and make it completely unworkable?

It is purely for that practical reason I am making this proposal here, simply because I think it is necessary. I am not enamoured of it myself and if there were any other way of doing it, I should be glad to agree to it, but there is no other way. It is just a simple, practical necessity. This is, of course, in cases we cannot hold in camera. I am minly concerned with cases which are not under Section 9 and, therefore, we cannot seek to have them held in camera. Is it so utterly outrageous that a Minister should be entitled to certify that a document which emanated from, his Department—I am accepting Deputy McGilligan's amendment here to the effect that the Minister himself must certify—is secret and confidential and that if he certifies that, that certificate will be accepted by the court without argument?

I want to mention here that that is in keeping with long tradition in this matter. The courts themselves have voluntarily accepted a discipline in this regard. They have down through the ages accepted that if the Minister simply says to the court: "I am not prepared to disclose this information because it would not be in the public interest for me to do so", the court will unhesitatingly accept that assurance and will not ask for the production of the document. We are just doing exactly the same thing here. We are asking the courts to accept a certificate given by a responsible Minister as final and conclusive evidence on the point.

Mr. McGilligan

This has to be related to Section 4. Section 4 deals with communication of a document which is secret and confidential. This has nothing to do with any element of the safeguarding of the State or even with the interests of the State being prejudiced. It is just simply that to communicate is an offence. To establish an offence, there must be proved two things: the fact of communication and the fact that something is secret and confidential. That is easily proved, communication being a factual matter—somebody was passed on information by a person who was charged—and there is the Minister's certificate and that finishes the whole matter. If this were anything to do with the part that deals with the safety of the State, it would be otherwise but it has not even to do with the interests of the State.

Mr. Haughey

It could have.

Mr. McGilligan

It has not. The Minister then tells us what the courts down through the ages have done. He is very far from knowing what the corts have done down through the ages, if the view he has expressed is what he has learned of it. In England, various points have been agitated from time to time when bad cases occurred and when judges found themselves coerced by a precedent, a precedent that was established in connection with a submarine case where clearly there was an element of the safety of the State involved. In the cases in Britain where judges have found themselves coerced to accept it, they have done it with great protest and I can quote examples where judges sent back cases for further consideration by the State and the cases has been settled out of court. It is not accepted at all.

As far as this country is concerned, the last case was the one in which Simpson was defendant and the court there discriminated between documents which fell into a class where the safety of the State had to be concerned and another case where in order to be allowed to communicate freely, it should be regarded that the documents were privileged and confidential. There is a hesitation about accepting a certificate of the Minister. We have not here the hard cases that there have been in England. It has been agitated several times and cases have been raised in both Houses of Parliament and it is a matter which I believe, will shortly have the result that the power to demand privilege will be lessened.

I do not see why we should bring it in here, where the interests of the State are not brought in and where security is not even mentioned in this section.

Dáil Éireann debate - Thursday, 5 Apr 1962

Dáil Éireann debate -
Thursday, 5 Apr 1962