Official Secrets Bill, 1962—Committee Stage (Resumed).

Debate resumed on the following amendment:
7. To delete subsection (3).
—(Deputy McGilligan.)

Subsection (3) of Section 2 declares that a certificate given under the seal of a Minister that any document, and so on, is secret or confidential shall be conclusive evidence of the fact so certified. I want to put to the Minister that that is an outrageous provision. I do not believe for one second that anybody would introduce that section if he really adverted to what it means, not even the Minister.

Let us take a specific example— the day before a Budget, when a Minister for Finance is preparing many documents. They are all marked, and properly so, "Secret," because a Budget leakage would be tremendously serious. The Budget comes in the next day. The documents immediately thereafter cease to have any secret effect, cease to be secret, in fact, though they are still marked "Secret." Then, the Government go out of office.

A Minister for Finance in that Government, when perhaps sitting on this side of the House or if outside the House altogether, discloses, as he is entitled to disclose, that in introducing that Budget, the Government were thinking of doing this or that but that their reason for introducing it was such and such and produces and quotes from his own minutes of the time. It then remains within the power of his successor, as Minister for Finance, under the way this section is drafted, to certify that the document was secret. The court has no power, no right, to investigate the matter at all. The court must convict the former Minister, even though the matters disclosed have no secret effects any more and do not in any way involve the safety of the State—do not, in fact, amount to more than what is an appropriate political discussion at a later stage. That is quite outrageous. It is the obvious way and the only way in which the section and this subsection in particular can be construed.

I do not believe for one instant that any responsible Minister or any responsible Government would introduce a section with that implication with their eyes open to its implications—or certainly they should not. The implication, as I say, is there. It is the only interpretation that would be open to the courts on the subsection. The courts are, by this subsection, given no discretion whatsoever and in those circumstances they must convict. I do not believe that that is what this House wants and that that is what the country wants.

I entirely agree that, in relation to matters that affect the safety of the State—and that is really what one means originally in relation to secrets —those matters should properly and thoroughly be protected. The way to protect them is to have the fact that the document was marked "Secret"prima facie that it was and still is at the time of its publication a secret document the disclosure of which would be contrary to what everybody desires. It would be an easy matter then for the court to determine whether the prosecution or defence was correct in saying that this is no longer, and was no longer at the time it was published, a secret document. As the section is drafted now with this subsection, the court's hands are completely tied. They have no option but to convict a person, no matter how innocent he may be and no matter how much the prosecution in the court and the judge and the jury may feel that such a conviction would be an abuse of the judicial process and entirely and absolutely unfair.

I have already indicated that it seems to me that the manner in which the section is drafted is the only way in which we can make the Bill work. As I said, the proposal is a practical and reasonable one. I want to point out that I am accepting amendment No. 8.

That is only a drafting amendment.

It is of some significance. The effect of it is that the certificate must be given by the Minister personally under a seal and not just departmentally. The fears expressed by Deputy Sweetman and others are unreal. It is always possible in relation to matters of this sort to visualise all kinds of imaginary situations, but as a practical proposition I do not think the type of thing Deputy Sweetman mentioned could ever possibly arrive in this country. If we ever got to that stage, we could throw our hats at democracy anyway. I have explained that the reason for this proposal is that we are dealing here with a document which is confidential or secret. The prosecution would rely on that sort of document. Would it not be absurd if, in order to prosecute somebody in relation to a document of that sort, you had to produce the actual document in court?

My defence of the proposal is based on the fact that this is, in effect, a continuance of the existing situation and tradition. The courts have always accepted the word of a Minister of State that it would be contrary to the public interest to disclose a particular document, and there the matter has ended. The courts have imposed that voluntary discipline on themselves. They have said: "We do not like this sort of thing but we appreciate that Ministers occupy special positions and have special responsibilities." If a Minister of State gives a certificate that disclosure of a document would be injurious to the public interest, the courts have never gone behind it. We are merely writing that particular principle into the Bill.

Not in a criminal prosecution.

In relation to the disclosure of official information in prosecutions under the Official Secrets Act.

Can the Minister give any references for that?

The celebrated Camell Laird case.

That was a civil case, an action for damages.

That is where the principle, the analogy I am adverting to was enunciated.

It was never either enunciated or followed in any criminal case I have ever heard of.

I say that this is a principle which is in the common law at the moment and has been found to be acceptable to the courts. I am putting it to the House as a proposal which is necessary for the practical working of the Bill. I am not persuaded by the instance which Deputy Sweetman has given me. That is so farfetched and unreal as to be not seriously worthy of consideration in relation to this point.

This has now been brought down to case law, the Camell Laird case. The Minister brings that forward as an answer to Deputy Dillon, who asked about criminal cases. The Camell Laird case was a civil action. It is one where the non-disclosure of a document can easily be justified. It concerned a case of a submarine that sank. A number of lives were lost and the dependents of one of the officers lost on the ship took an action for negligence against the constructors of the submarine. They asked for documents which would show the type and construction of the submarine and, naturally, during the war period, it was considered that to disclose what was put forward as a secret construction and new improvements to a ship would, of course, vitally prejudice the safety of the State. Notwithstanding that, the courts were very reluctant to accept the fact that the State claimed the privilege.

That rolled on to a few other cases. There is a very well-known one of a man called Ellis against the Home Office. Again, it was a civil action. The man had been put on remand and sent to one of the English jails. He found himself assaulted and very violently assaulted by another prisoner, a man who was a convict. He discovered that this convict had been under medical treatment and he naturally made a complaint that a person who was under restraint as a prisoner should not have been allowed to wander around a jail and certainly should not have had access to the weapon with which he hit Ellis. Again, the State claimed privilege for the disclosure of the medical documents in that case. Again, it was a civil action. There are a couple of matrimonial cases. Broom is one and I cannot recall the name of the other.

In this country, the whole matter was discussed in great detail in a case taken against a person called Simpson in connection with what was called an indecent play. It was sought to put a police officer into the witness box and to ask him what his instructions were in going down to see this play. The matter of privilege was raised and was claimed. In the course of the judgment of the President of the High Court, which is the most detailed of the three judgments given, very definitely attention is called to the fact that occasionally an effort is made to get disclosure prohibited in connection with criminal matters. That was left open as a moot point.

There is a great difference between what the Minister is talking of and what is proposed here. The matter the Minister is talking of is simply where the State claims privilege, either on the ground that the disclosure of the document would prejudice the safety of the State or that it was intended to facilitate administrative action so that those who belonged to Departments of Government might write minutes freely without any belief afterwards that they would be disclosed to the public. Surely that is an entirely different matter from bringing a charge of a criminal type and founding it on a document and then saying to the court: "We will not let you look at that document?"

The case will be made under Section 4, if it is enacted, that a person shall not communicate any official information to any other person unless he has been authorised to do so. To get the gist of the proposal, you have to look back to earlier sections. According to the definitions, "official information" is information "which is secret or confidential or is expressed to be either and which is or has been in the possession, custody or control of a holder of a public office." The holder of a public office includes a person of ministerial rank or the rank of Parliamentary Secretary, so in order to prove an offence, all that has to be shown is that someone ranking as a public official had a document and that the Minister certified that the document which was secret and confidential was communicated to someone else. There is no question of what is called a guilty mentality.

There is the case which Deputy Sweetman talked about of the matters which will come to the hands of a Minister for Finance a few days before he makes his Budget Statement, but that is a special type of document. So far as my memory goes, every Cabinet document that comes to the hands of members of the Government is labelled "Secret and Confidential". Supposing one of those documents was very much out of date. During my time in office, a departmental committee considered a television service. They submitted a big report marked, "Secret and Confidential". That report was completely out of date a couple of years after, but it was still a secret and confidential document. If I, being a member of the Government, communicated that document in the sense of throwing it into a wastepaper basket, or sending it to a wastepaper merchant, all the Minister has to show is that he certifies that the document is secret and confidential. The courts need not look at the document, according to the Minister.

I turn to the penalty section, Section 13, in which certain penalties are laid down. According to subsection (2):

A person shall be triable summarily for any offence under this Act and on conviction shall be liable to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months or to both.

How is the judge to determine the penalty, if he has not seen the document? According to the Minister, all he has is a statement from some member of the Government that it is a secret and confidential document. How will he determine between a fine of £5 and a fine of £100, and a term of imprisonment of a week and a term of imprisonment of six months? How can he understand what is the gravity of the offence, unless he looks at the document? The two things are completely distinct.

The State claims privilege for documents and it wants to safeguard information, but it does not base a prosecution on that. It is a vast extension of that. That is a procedure which has been very seriously criticised by judges in England. It only came under real consideration in the Simpson case because there was a very definite acceptance of the line laid down in the Camell Laird case with reservations in regard to criminal matters. It is the gravity of the offence that decides the penalty, and yet we are told that the judge will decide in blinkers.

In the penalty section, it may be summary trial before a district justice, or else it may be trial on indictment. If it is trial on indictment, a jury will have to try the matter. How will a jury decide whether or not the offence is serious, unless they get a look at the document or get some disclosure? I have a later amendment down to the effect that a person shall not "in any manner prejudicial to the safety of the State" communicate any official information.

This Bill must be looked at in its proper framework. The two Official Secrets Acts in England are based on preventing spying and prohibiting the taking of maps or plans of dockyards and such places which are official secrets. We have no such guardianship here. The Minister just signs a document saying that it is secret and confidential and the judge has to take that.

I want to point out to the House and to the Minister that the requiem of the individual's liberty is enshrined in the words: "It is not practical." There was never a man railroaded into jail by a tyrannical Executive whose incarceration was not justified on the grounds that it was not practical to make exceptions to the general rule, and if an individual suffered, administration required that that should be so.

I do not think that is right. I think we must make it practical to protect the individual liberty of every citizen of the State. Deputy Sherwin's individual liberty is just as important as mine or the Taoiseach's, and it does not in the least reconcile me to the fact that Deputy Sherwin should be trampled upon that it is not practical to take proper precautions to see he cannot be.

This subsection is concerned really to withdraw from me and from Deputy Sherwin and every other individual walking the streets of the country the effective protection of the courts against the Executive.

The Deputy has not got it at the moment. It is not withdrawing it because he has not got it now.

I think I have.

Not in this type of case.

Because there is a long line of precedents. Deputy Sweetman asked me to give a criminal case. I have here Auten v. Rayner [1960] I.Q.B.

About what? What was the subject matter?

A case of conspiracy.

I thought we would get conspiracy soon enough.

The certificate of the Home Secretary was accepted by the judge.

I am not informed as to the subject matter of the case to which the Minister refers which he describes as a case of the Queen's Bench of 1960 in Great Britain. I am dealing with the situation as I know it in Ireland. It is not my function—it should not be thrust upon me—to rewrite the Minister's legislation but there is another amendment on the Order Paper, No. 10, which seeks to substitute the words “prima facie” for “conclusive”. I would be prepared to meet the Executive by a corresponding provision if argument were to ensue as to whether the prima facie evidence was valid and that argument could be held in camera. I see some force in the proposition that the Executive claims the whole subject matter of the charge is the unauthorised revelation of a confidential document. The defence says: “We say it is not a confidential document. If it were at one time it constitutes no threat to the State today to publish its contents. We are prepared to prove that.” Under this section, as drafted by the Minister, the judge must say: “You will not get the chance. The Minister's certificate ends argument. The law does not allow me to hear your argument.”

I would suggest to the Minister that, instead of providing that, it would be reasonable to say that the Minister would be entitled by certificate to divest himself of the obligation of proving that the document was confidential and his assertion that it was would establish the prima facie evidence of that fact. It would then devolve on the defence to rebut that and, if necessary, that part of the pleadings would be held in camera.

So far as I know, in Great Britain today the most secret and confidential matters have been tried out in the courts in camera but in the presence of a judge and jury and the facts argued at great length in several of the spying trials that have taken place there. This Official Secrets Bill covers a much wider field than the restricted one envisaged when the first of these Official Secrets Bills was introduced and which were primarily concerned with spying and foreign espionage.

Section 12 permits in camera hearing of certain offences.

In any case we know it is a regular procedure. A part of certain proceedings relating to matters dealing with official secrets has been thought proper for in camera hearings. I assume that the Minister for Justice sustains the ordinary proper view that justice ordinarily should be done in public. I agree with him entirely that there are certain exceptions to that general rule and this could be one of them. I suggest to him that a reasonable via media here would be, if you retain subsection (3), to provide that the Minister's certificate under seal shall be prima facie evidence of the facts so certified and introduce on the next Stage of the Bill a further subsection to provide that the argument should be conducted with the courts sitting in camera. That seems to be a reasonable compromise. It is one which I think the Minister ought to try and if it does not work he can come back to the House and say he tried it but it did not work. He can then seek further and stronger powers but certainly today he has no case to make for these wide powers when we have not even given a reasonable middle course a trial.

I should like to say a few words. Having listened to the arguments of Deputy Dillon, I agree that there should be some form of protection. The Minister may argue that certain things are not practicable but there should be some form of protection. It is not impossible that while a document may have been secret and a matter of official concern at some stage, it might at some other stage be of no official concern or danger and be obsolete. Nevertheless a political person could use it against an opponent in certain cases. It is not impossible. That has happened. There ought to be a little protection. I admit the Minister's point that certain things are not practicable but there should be some proviso against an individual being victimised.

I want to make the present position clear and I want to point out to the House that, on balance, we are not making any significant change. At the present time it is an offence for a person to communicate without authority information which he has obtained as the holder of a public office. There is no need for the prosecution to establish that the information is secret or confidential. That is the present position. Once the person procures the information as the holder of a public office and discloses it without authority, the prosecution does not have to establish that it is secret or confidential.

What are we doing? We are now providing that the certificate of the Minister will be sufficient to make the thing secret and confidential as far as the courts are concerned but we are restricting official information in relation to which a prosecution could arise to information which is secret and confidential. To that extent, we are introducing a new restriction. At the moment, information does not have to be secret or confidential. The prosecution does not have to prove that. We are now saying that there can be no offence unless the information is secret or confidential. To that extent, we are not worsening the position of the accused by one iota. It will still be open to the accused to argue what he can argue at the moment and that is that the information was not information which he got by virtue of his office. That is one defence the accused in this sort of circumstance has at present. The accused can argue that he did not get the information as the holder of a public office. It will still be open to him to put up exactly the same defence under these provisions. In effect, we are making no change in the present position.

I have not got the 1911 Act with me. I did not know we would get into this detail. Accordingly, I take what the Minister says with a grain of salt until I get the whole framework of this Bill. The Minister says that all that has to be proved is that the document is secret and confidential. That is not so. The words are: "expressed to be secret and confidential." I thought that sooner or later we would get to the law of conspiracy. Every criminal law text book quotes with enthusiasm the warning of a famous Irish judge. Let me quote from one:

The law of conspiracy is a branch of our jurisprudence to be narrowly watched, to be jealously regarded and never to be pressed beyond its true limits.

There is an article written in a publication in December of last year. It is to be found in the Journal of the Society of Public Teachers of Law. It is written by the Professor of Common Law at Liverpool University whose name is Davies. I will quote one piece of it at page 111 of this volume for December, 1961. He speaks of conspiracy. This is the quotation:

Some other great modern systems of law get on very well without the crime of conspiracy. In the course of our legal history, it has been a device used for much dirty work. It is still too frequently the lowest resort of desperate prosecutors. It has to be kept, and I am ready to admit the possibility that it may very occasionally be useful, it should be under strict restrictions and not with this amplitude of arbitrariness now sanctified by the judicial custodians of our morals.

Is the amendment being pressed?

We must press this.

I suggested a reasonable via media. It is fantastic that the Minister feels this does not create a bigger burden on the defendant than the existing law. We say it does. I cannot see why the courts should not inquire into the matter which the Minister has certified as confidential. That inquiry could be in camera. How does that jeopardise the secrecy of the document?

It is possible to visualise a situation where, say, the defendant's counsel or solicitor might want to get at confidential police reports and that might be prejudicial to the security of the State.

It would be open to the Minister or the Attorney General to go into court and argue that this is a confidential document and that a report of this character, if published, might cause the whole system to break down. It would be possible to argue that the contents of the document are so confidential that the police could not carry on if the court allowed it to be opened. The Minister will remember that that case has been made by the police on occasion and that the courts have refused to accept it.

The Minister, in this context, must think of himself as the enemy of individual liberty. Otherwise, the whole sense of the judiciary disappears. Our society is based on the principle that we must have an Executive, that there is a tendency on the part of every Executive in the world to expand its powers over the individual to the point of tyranny and so we have invested the courts with absolute independence so that the humblest citizen of the State can meet the Executive in the courts in the belief that the court will defend his fundamental rights against the Executive in the knowledge that the Executive cannot vent its rage on the independent judiciary.

All we are asking is that if the Minister instructs the Attorney General to claim that police reports are of such a nature that it would be prejudicial to the welfare of the State to have them put in evidence, the defendant should have the right to say that this is an extravagant claim on the part of the Executive and is an attempt to railroad him into jail, and if the defendant is to have a fair defence to the charges, he should have access to the documents. It is then for the judge on the Bench to say yea or nay. If the Attorney General comes to the conclusion that in no circumstances could he make the document available, he always has the right to enter a nolle prosequi and tell the court that the prosecution has no further grounds on which to press the charge and ask to have the prisoner discharged.

It would then be open to the Minister to say that a situation has arisen now in which a certain type of crime is becoming rampant and that we cannot put an end to it because our sources of information are such that we cannot open them in public without jeopardising our sources of information and breaking down our administration and we have got to come back to Dáil Éireann and tell them our difficulty. I do not believe that any such possibility exists but it is the spectre of its existence that is being invoked to ask us to give to the Executive powers they should not have.

Surely the whole State will not fall down if we provide now that the Minister's certificate under seal will do no more than inform the Bench that a certain document is confidential and then the defendant will have to satisfy the judge that he is making a reasonable case and if he can so satisfy the judge, that the Executive shall fail. If the Executive cannot subscribe to that view, they should then drop the prosecution. In those circumstances, the Minister can come back to Dáil Éireann and inform them that the enforcement of the law has become impossible.

It would then be legislation ad hominem.

Not at all, but ad rem. If you want to talk Latin, let us talk Latin. I cannot talk Greek, but if you want to talk Latin, let us all talk it.

Or Irish?

Yes, or Irish. If the Minister comes back to the House and tells us that a series of events has arisen that he cannot control if he has to meet in court a demand for this type of revelation, that a particular evil cannot be abated unless he is given the right to withhold certain documents from the court, then we could consider the matter on its merits. I am not suggesting that if a man is acquitted of a crime, we should alter the law so as to put him twice in jeopardy.

It would be no harm for the Minister to remember that in a very great democracy not so far away an Executive recently came to the conclusion that the court which did not bring in the verdict he thought it should bring in should be dissolved and that a new court should be constituted and new charges brought against a prisoner in respect of whose conduct a verdict had already been given. It is wonderful what Executives can do when they feel strongly enough about something. I am concerned to provide that the Executive in Ireland should not have that power and that they will have to satisfy a judiciary.

I can see that in this case they might reasonably have to ask for in camera proceedings. That system ought to be given a trial before the Oireachtas is asked to provide that a defendant has no right of appeal, once the Minister has given a certificate under his seal. That is a horrid principle which this House would never be justified in accepting and I would want far more convincing arguments in its favour than any the Minister has attempted to produce here today.

I can visualise the Minister finding himself in a difficult position if he accepts the amendment but that is the essence of freedom, that a citizen can embarrass and inconvenience the Administration. This provision is indicative of the trend of the times. Things are being made easy for the Executive and for the Minister. I do not see any reason why a Minister should be able to give a certificate and say to a defendant: "You be damned; I say so and that is conclusive".

He can do it at the moment.

I am not concerned with what the Minister can or cannot do at the moment, but it is only right that the Minister should realise that it is dangerous for him, or for some of his successors, or for some Minister of the future, to be able to say by giving a certificate that a certain thing is of such a type that heavy penalties can be imposed on a citizen because a Minister says that it is secret and confidential. I appeal to the Minister to accept this amendment. It might be inconvenient for him to do so but the principle involved is very important. It should be as precious to the Minister as it is to the House.

Amendment withdrawn?

We are dealing with amendment No. 7?

Yes. In order to save amendments Nos. 8, 9 and 10, the question will be: "That the words proposed to be deleted down to and including `given' in line 8, stand."

"A certificate given..."—that is only three words.

It is a token question in order to preserve the other three amendments.

Question put.
The Committee divided: Tá, 62; Níl, 48.

  • Aiken, Frank.
  • Allen, Lorcan.
  • Bartley, Gerald.
  • Blaney, Neil T.
  • Boland, Kevin.
  • Booth, Lionel.
  • Brady, Philip A.
  • Brady, Seán.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Breslin, Cormac.
  • Briscoe, Robert.
  • Calleary, Phelim A.
  • Carter, Frank.
  • Clohessy, Patrick.
  • Colley, George.
  • Collins, James J.
  • Cotter, Edward.
  • Crinion, Brendan.
  • Crowley, Honor M.
  • Cummins, Patrick J.
  • Cunningham, Liam.
  • Davern, Mick.
  • de Valera, Vivion.
  • Dolan, Séamus.
  • Dooley, Patrick.
  • Egan, Kieran P.
  • Egan, Nicholas.
  • Faulkner, Pádraig.
  • Flanagan, Seán.
  • Gallagher, James.
  • Galvin, John.
  • Geoghegan, John.
  • Gibbons, James M.
  • Gilbride, Eugene.
  • Gogan, Richard P.
  • Haughey, Charles.
  • Hillery, Patrick.
  • Hilliard, Michael.
  • Kennedy, Michael J.
  • Kitt, Michael F.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Lemass, Seán.
  • Leneghan, Joseph R.
  • Lenihan, Brian.
  • Lynch, Celia.
  • MacCarthy, Seán.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • Meaney, Con.
  • Medlar, Martin.
  • Moher, John W.
  • Mooney, Patrick.
  • Moran, Michael.
  • Ó Briain, Donnchadh.
  • Ó Ceallaigh, Seán.
  • O'Connor, Timothy.
  • O'Malley, Donogh.
  • Sherwin, Frank.
  • Smith, Patrick.
  • Timmons, Eugene.

Níl

  • Barrett, Stephen D.
  • Barry, Anthony.
  • Barry, Richard.
  • Belton, Jack.
  • Blowick, Joseph.
  • Browne, Michael.
  • Burke, James J.
  • Burton, Philip.
  • Casey, Seán.
  • Clinton, Mark A.
  • Collins, Seán.
  • Connor, Patrick.
  • Coogan, Fintan.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, John A.
  • Desmond, Dan.
  • Dillon, James M.
  • Dockrell, Henry P.
  • Donegan, Patrick S.
  • Dunne, Seán.
  • Dunne, Thomas.
  • Esmonde, Sir Anthony C.
  • Farrelly, Denis.
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Harte, Patrick D.
  • Hogan, Patrick (South Tipperary).
  • Jones, Denis F.
  • Kenny, Henry.
  • Kyne, Thomas A.
  • Lynch, Thaddeus.
  • McAuliffe, Patrick.
  • McGilligan, Patrick.
  • McLaughlin, Joseph.
  • Mullen, Michael.
  • Murphy, Michael P.
  • Murphy, William.
  • O'Donnell, Thomas G.
  • O'Higgins, Michael J.
  • O'Higgins, Thomas F. K
  • O'Keeffe, James.
  • O'Sullivan, Denis J.
  • Pattison, Séamus.
  • Reynolds, Patrick J.
  • Ryan, Richie.
  • Spring, Dan.
  • Sweetman, Gerard.
Tellers: Tá, Deputies J. Brennan and Geoghegan; Níl, Deputies O'Sullivan and Jones.
Question declared carried.

I move amendment No. 8:

In subsection (3), page 4, line 8, to delete "under the seal of a Minister" and substitute "by a Minister under his seal".

Amendment agreed to.

I move amendment No. 9:

In subsection (3), page 4, line 11, to delete "conclusive".

Amendments Nos. 9 and 10 may be discussed together.

These two amendments are practically the same. My amendment to delete the word "conclusive" would mean that the certificate should be evidence. The alternative in the name of Deputy O'Higgins is that the certificate shall be prima facie evidence. There is no great difference between the two phrases.

I cannot accept either amendment.

We already have a provision in this Bill for hearing certain charges in camera. The principle is recognised and accepted of hearing certain proceedings in camera. Surely it is worth giving it a trial to provide that it shall be prima facie evidence and that any argument as to whether it is in fact of a character which the court should not require the Executive to reveal shall be argued in camera.

It is an appalling concept that any person can find himself confronted in court with a certificate under the seal of the Minister with no remedy at all, that you cannot argue the rights and wrongs of that procedure at all before any independent tribunal. The Minister says: "I cannot envisage any conceivable circumstances in which such a situation could arise and if it did arise, we might as well abandon democracy." I do not want to go rambling back over the history of this country but I have lived through periods in this country in which this kind of thing could happen and did happen. I well remember two distinguished citizens of this State, one a high Army officer, being charged in court with what I am satisfied were wholly frivolous charges. Fortunately, they were so framed that the persons concerned were in a position to defend themselves and did defend themselves. I heard with my own ears in this House the head of the Executive point to a colleague of mine on these benches and say that he had confidential information that he was seen travelling in a motor car in the streets of Dundee with a British Minister.

The Minister for War.

Yes, the Minister for War. Strange things can happen in a democracy. So long as the institutions of democracy are maintained sacrosanct, they can be put into operation and the extravagances of an angry Executive can be brought under control. I have seen the institutions of democracy strained to their limit and strained to a point where they would have broken in many other countries than this. I often think we do not give ourselves sufficient credit for the fact that under the immense stresses that were undergone in this country, we maintained the institutions of democracy successfully and made them work. I do not want to be driven now into the position of recalling all these lurid interludes in my personal memory, and there were even more violent interludes in the five years before I became a member of this House. Many of these participants in these events look back on them with, I think, some dismay. In fact, I have heard certain participants in these events state from those benches where the Minister is now sitting that if they had known as much at the time as they now know, they would never have done the things they did. But they did them, and it was only because the machinery of democracy was functioning that we were able to control the situation then and get through without irretrievable damage being done.

It is always wise for a legislature to envisage the circumstances in which some individual finds himself face to face with the Executive in defence of his own individual liberty. I ask the House to remember that in 90 per cent. of such cases, the individual who is defending himself is sometimes unpopular. Popular opinion is probably against him. He is charged with a crime that commands no sympathy and there is a kind of presumption in the public mind generally that, if a person is charged with such a crime, there cannot be all that smoke without some fire, and he is therefore unpopular, and alone. He might have considerable difficulty in any event in getting solicitor and counsel to represent him. Far from the State depriving him of any right effectively to defend himself before the judiciary, our concern ought to be that the more unpopular he is, the more solicitous we should be that justice should be done; and we ought clearly to see that justice is done, even at great inconvenience to the Executive. That is the test of a free society.

I think this oratory deserves a better cause.

I am defending the most fundamental and vital principle that we have preserved in this country, namely, the right of the individual, standing alone, to defend himself against the Executive representative of a majority Government in this House.

That is not at issue here at all.

Oh, yes; it is. I am claiming that the person who stands in the dock shall be entitled to say to an independent judge: "The certificate given by the Minister is bad because it is certifying what is not true. I want to argue that before an independent judge and, if I cannot argue that, I have no answer to this indictment." It is, I think, quite shocking that we should create a situation in which a man can stand in the dock and say to the court: "If I can penetrate the veil of secrecy which the Minister has thrown over the really relevant document in this case, I can prove that the Executive is wrong, that I am right, and that I am entitled to go free." Then the judge from the bench must reply: "You cannot penetrate the veil of secrecy. There is no power in this court to give you that liberty."

I ask one question: If anybody is so affected will any Deputy feel easy in his conscience? The more we reprobate the action in respect of which the person is charged, the more unhappy we must be that he is in a position to say: "If I could have the real fact of this issue tried by an independent judge, I could not be convicted. The only way they could succeed in convicting me was by depriving me of the right to get the evidence examined by an independent tribunal." If that is the case, and if such a defendant and his counsel throw in their hand and say: "If we have the right to argue our case, we will succeed, but if we are denied that right by the Minister's certificate, we cannot succeed and we cannot successfully defend our liberty" will there be any Deputy satisfied to see that man go to jail? I certainly would not be. But I should be quite prepared to say this man is asking too much if he says: "I want the document examined by an independent judge and the opportunity afforded me to establish that it is not of the character certified by the Minister under his seal and, further, I want to argue that in public." I should be quite prepared to say then that that is an unreasonable stipulation.

We have an independent judiciary which has ample constitutional safeguards to protect it from any apprehension that the Executive could wreak vengeance upon it. There must be reasonable regard for the fundamental safety of the State as well as for the integrity and freedom of the individual, and these two things must be reasonably weighed. We are prepared to lean over backwards to vindicate the integrity and liberty of the individual, but not to the point of prejudicing the whole safety of the State. Accordingly, if the court decides these documents require examination, then the State replies that that examination must be conducted in camera. I think that would be a reasonable stipulation. Bearing everything in mind, I put it to my colleagues in Dáil Éireann, would that not be a reasonable stipulation? Would we not all agree that if a man has the opportunity of making his case before a judge—I would be prepared to say, if needs be, for the purpose of that argument, the jury should withdraw and the matter should be one to be determined by the judge—that would be a safeguard? I am prepared to go a long way to meet the Minister in the matter of secrecy in relation to matters of this kind, but we should not go the length of saying that a defendant charged with a grave crime under this official secrets code is denied the right of arguing the merits of his case, once the Minister has given his certificate under seal.

I do not believe any responsible member of the Minister's Party agrees with him in that. I very much doubt that the Minister himself believes in what he is now trying to sell Dáil Éireann. I suggest to him that it is a salutary thing on occasion to say: "Very well; this case is very strongly pressed upon me by the Opposition on the ground of safeguarding the principle of the protection of individual liberty. As Minister for Justice, that should be my prime concern. I will give yield to this demand, but I want it clearly understood that, if the administration of the official secrets code breaks down under this demand, and I find myself in the position that I have to instruct the Attorney General to seek a nolle prosequi because I cannot reveal the contents of a document, I shall come back and seek thereafter that this obligation upon me will be removed.”

If such a situation arose, which I cannot imagine arising, then I could imagine the Minister getting a very much more sympathetic hearing from Dáil Éireann, as he certainly would from me. But, on the facts as we know them to-day, no valid case is made for the retention of the word "conclusive" and therefore we ought to substitute for it the words prima facie or omit it altogether.

I want to remind the Leader of the Opposition that, on a previous occasion here, when he put a case to me regarding the rights of an accused person, I saw the force of his argument and accepted the proposition which he put to me. I merely remind the Deputy of that to prove that I am capable of such persuasion but I am not persuaded in this case. I am absolutely convinced that Deputy Dillon has the wrong end of the stick in this instance.

First of all, let me deal with the suggestion that we should give this a run and, then, if it does not work, come back here with an alternative proposal. I think I could be criticised very severely, and rightly criticised, if I were to attempt anything of that nature. Last night in this House it was argued very trenchantly by Deputy Dr. Browne that it would be a grave dereliction of duty on my part if I were to propound certain proposals in a Bill and then subsequently to withdraw them. Surely, if Deputy Dr. Browne's argument is valid and if that criticism is being made in this House, then I am entitled to think it is not a very desirable practice to bring in a Bill here and to say: "This is only experimental. If it does not work, we shall try something else." That is not the right approach. We should try to make this Bill as sound as we can; we ought not to try to put in something and salve our conscience by saying: "If it does not work, we can always change it."

Let us come to the actual merits of the case. There was this flaw in Deputy Dillon's argument. I have pointed out here that what is being done in this Bill now is nothing more or less than what exists at present. Deputy Barrett admits that. He says he does not care what happened in the past and that he is interested only in what we are doing here and now. Deputy Dillon has reminded us of certain turbulent times through which this country has passed. If the present situation obtained in those difficult, turbulent times and did not give any grounds for abuse, are we not entitled to assume that, in the comparatively calmer times that we are in at present and which presumably lie ahead, there will not be any particular ground for anxiety?

The suggestion that a Minister's certificate be regarded as prima facie evidence and that then, if necessary, the case could be held in camera is no solution. As I said, it is not very difficult at all to visualise a situation where a disclosure to the defendant or to his legal advisers could be prejudicial to the safety of the State. Hearing a case in camera does not get you out of that difficulty.

You always have this solution. You can say you cannot do it.

What do you do then? Do you say the person can go free?

If the judge says it is not reasonable to certify a document as confidential—

I want to point out that the person who is to decide whether or not the document is secret or confidential or of importance to the realm should not be a judge: it should be a Minister.

In the nature of things, it must be a Minister. You could have a document which, on its face, is a perfectly innocuous one. But the Minister—maybe the Minister for External Affairs or the Minister for Justice—aware of all the circumstances, knows that if some seemingly innocent piece of information in that document is disclosed, it will mean something to somebody else, to somebody not in court, maybe, but to somebody who will use it to the detriment of the public interest. The judge could not possibly be in a position to know that, unless the Minister came into court.

What guarantee is contained in the Bill that the Minister, knowing the circumstances, will not act politically?

I shall come to that in a moment. As I said, it is very dangerous to suggest that the judge should be the ultimate arbiter in this case. He cannot be. Only a Minister, having his responsibility for his Department, and, as often as not, for the security and welfare of the State, can decide whether or not a particular piece of information can safely be disclosed. It does not require much imagination to visualise a document which, to a judge or jury, would appear perfectly innocent but which, to some outside persons, would be of particular value.

What are we dealing with here? We are dealing primarily with a public official who discloses confidential information. I think the real defence of that person should be directed along two channels: either (1) proving he did not disclose the information, or (2) disclosing that he did so but was authorised. Once he is a public official at all, and discloses information which he is not authorised to do, is he not, prima facie, guilty of an offence?

This is a situation where we have a public official who has disclosed information that he was not authorised to disclose or disclosed otherwise than in the normal course of his duties. Now, Deputy Dillon wants to direct the whole weight of the argument to whether or not the document is secret or confidential. That has, in practice, little to do with it. It is an official's job to keep secrets and not to disclose information in an unauthorised fashion. Therefore, as I said, I think Deputy Dillon, Deputy Barrett and others are concentrating their fire in the wrong quarter.

The key point in a prosecution of this kind would not be the confidential nature or secrecy of the document. That is a matter of degree and opinion and, indeed, the only person qualified to say ultimately whether or not the matter is properly secret and confidential is the Minister himself, and that is what we are saying.

Could that not lead to political trickery?

Could even the simple introduction of a Bill in relation to judges' salaries not lead to political trickery in this House? Anything can. But this Bill is concerned ——

We have spent two days making the judiciary more expensive and now we say we have no confidence in them to decide that matter.

Deputy Dillon spoke about the position of a person vis-á-vis the Executive. I am saying that his concern in this regard is unreal. ——

Surely all this is under Section 4?

——and that an accused person's real defence will lie in establishing that the information was not disclosed or, if it was, that he was authorised to disclose it.

I do not think the Minister really appreciates what he is doing or the problem he is posing to the House. It seems to me that this matter, which is dealt with in amendments Nos. 9 and 10 in the names of Deputy McGilligan and myself, is of vital importance. I do not think the Minister, on his statement just now, has shown that he appreciates in any way the importance of what he is asking the House to do.

The Minister is suggesting in subsection (3) of the Bill that any Minister may, by a certificate, declare any document, or the other matters, codes or seals mentioned in the section, to be secret or confidential and that once that certificate is given, no one can dispute it, not even the Minister's colleagues. Not even the Taoiseach, the President or any judge in the land can dispute it. All that is necessary is a certificate given by any Minister, no matter how irresponsibly given, no matter how irresponsible the Minister may be. Once that certificate is given, there can be no further argument from any source as to whether or not the information or the document is secret or confidential.

The Minister thinks that is necessary to safeguard the security of the State and he argues that only a Minister is in a position to judge, that it would be dangerous to suggest that any member of the judiciary should be allowed to adjudicate on the matter. That is going altogether too far. I think the Minister does not appreciate what he is doing. Remember under a later section—I think it is Section 6—the Minister endeavours to deal with the situation where ex-Ministers or ex-Parliamentary Secretaries are in possesson of official information. Official information by the definition section of the Bill is classed as secret and confidential information and as I see it, all the Minister has to do is to declare that such information is secret and confidential and that is the——

Section 6 refers only to handing back documents.

It refers to handing back documents and it is an offence if the documents are not handed back. It does not only extend to the requirement of a Minister, it extends to the requirement of a secretary of a Department to hand back documents. If in a perfectly bona fide way there is a dispute as to whether the documents are such as to be handed back or not, the Minister is asking the House to declare that simply by a certificate of a Minister dubbing them to be secret and confidential, any question in dispute is to be taken out of dispute and arbitrarily settled in that way. That possibly is only a minor aspect of it, looking at it from the most obvious political point of view; but as Deputy Dillon pointed out, this section, if allowed stand as drafted, is one which can completely take away the rights of the individual as against the Executive.

I cannot see any sound case and I do not think the Minister has endeavoured to make any strong case, for standing over the wording of the section. We have gone to the trouble and expense of setting up an independent judiciary and the Minister, and if I remember aright, the Taoiseach, came to this House and urged increases in the salaries of the members of the judiciary on the basis that we are proud to have an independent judiciary and that it is essential to keep them independent. We all admit we have an independent judiciary but what is the Minister doing now? He is telling the House that as far as this Bill goes, he will have no confidence in them whatever.

Not at all.

That in fact it would be dangerous——

That is a gross exaggeration.

——to allow them to decide whether a question of this sort is or is not secret and confidential.

That is what the Minister said.

At all events, I understood that was the Minister's argument. He can correct me later——

Did the Minister not say that the only person who would know was the head of the Department?

What did Deputy O'Higgins say?

He is to be judge and prosecutor at the same time.

Surely the commonsense approach is to recognise that there may be arguments about whether a document is or is not confidential, or is or is not of a nature that its disclosure would be prejudicial to the safety of the State, and why should the Minister be the only person empowered——

The Deputy would have the document disclosed in court and then subsequently have it decided it was secret and confidential.

The Minister heard a lot——

The harm would have been done then.

Why would it be done? Can the hearing under another section not be in camera.

That is no good.

If it is no good, then the Bill is no good. If the court decides the document is secret and confidential, is it not quite clear that everyone who has obtained that information and who obtained copies of the documents is liable to prosecution by the State, if after the court hearing, he divulges it to anyone else? The Minister put forward an argument which is extremely dangerous and which possibly he did not intend to make. If he did, it shows the mind that is operating behind this Bill. He suggested it might even be dangerous to allow the information, or copies of the documents, into the hands of the defendant's solicitor or counsel. In other words, we have a situation envisaged by the Minister where not only will the Minister be entitled to decide whether or not a document is secret and confidential, or whether or not by virtue of that fact an offence has been committed, and he is going to remove that completely from the judge to decide, but to put a man in the dock and say to him: "No matter what your defence is, your legal advisers are not going to be allowed access to this information or to see this document." That is the Minister's attitude in standing over this section as it is worded. It is a very dangerous attitude for him to take up. This is a very dangerous section to insert and the Minister would do a better day's work for the State if he departed from his present attitude and agreed to discuss this in a reasonable manner and accepted one or other of these amendments.

The Opposition are doing themselves a disservice in this matter in pressing this to exaggeration. In the experience of a number of Governments, there is very little danger of the precise things the Opposition are talking about happening. I also think the Minister has a point where he wishes to make certain provisions for safeguarding the public interest in regard to information. I want, however, to bring to the Minister's attention another aspect which I should like him to consider. It is the possibility of a section like this being used for purposes for which it was never intended. I would ask the Minister to consider whether that section could be used by Departments in the routine way to obstruct citizens from obtaining information which they should have from the point of view of their legal rights. I have a specific case in mind. For a couple of weeks, with another Deputy, I have been attempting to obtain information from the Minister for Defence and Deputies can read the evasive answers which have been given. The whole attitude is: "Do not give the information." All that I have been trying to elucidate are the grounds for obtaining a——

Is the Deputy on the amendment?

I am, because under this section the Department would be handed on a plate a procedure by which a person—an individual as in the case of the retired officer about whom we have made an issue— could be refused all information. It raises a number of interesting considerations with which I do not want to delay the House now.

My point is to ask the Minister whether he would in any way consider restricting the operation of a section such as this where routine, or what I might call ordinary matters of State procedure are concerned. I think the Opposition have gone far too far and are spoiling any real case that could have been made on this section by, first of all, falling into the political temptation themselves for the political reasons they impute to the Minister. In all-round fairness, when they were in Government as when we were, there were equally valid grounds for fearing there would be partisan abuse of a provision like that. But so far we have had no evidence of justification——

You have not had this section.

You have.

You had, in effect, such a provision. The Opposition will not help such arguments as they have by making such accusations, any more than it will help them to make accusations of personal lack of faith or suggestions of ulterior motive. In the 40 years' history of the House, we have discovered that that kind of thing gets us nowhere. However, it is legitimate for us to raise with the Minister in a constructive way the question of the operation of such a section outside the field for which it was intended. There is clearly a field in which such a provision is not only desirable but necessary and in present circumstances it is probable that the existing provisions need tightening up in that respect. In that, we must be with the Minister.

But there is another side of the thing—the danger that a provision like that will be used simply to certify. In that connection I want to take one specific case where the proceedings of a court of inquiry were material to a claim. The Minister for Defence, first of all, based his argument on the fact that a court of inquiry had fixed responsibility on an officer and when it was attempted to press that allegation, all the regulations that could be called upon were used to hide behind and the officer in question would not be given the information which he should have been given. He was charged in this House, where he had no reply, with certain things and the authority for that was the finding of the court of inquiry. As I have said, he was refused the finding of the court and every effort made by Deputy Booth and myself to elicit that finding came to nought. We could not even establish whether the court of inquiry had not found that the officer was not responsible in any way.

Any information we have been able to get has been by a process of attrition. They cannot prove he was responsible. How simple it would have been for the Minister for Defence in all such cases to certify such a document was a secret document and that would be the end of it. I am thinking of this in terms of court procedure through which this officer or anybody else had to establish a claim. I know this is utterly inapplicable to the Minister for Justice at this stage and I think it would be wrong to carry on the line the Opposition have taken in this matter. It is natural some things would be overlooked in the drafting of a Bill, but in the case I mention, £486 is being withheld from a retired officer——

I do not think it is right that we should discuss the procedure of a court of inquiry——

The court of inquiry is over and done with.

But this is a matter for the Minister for Defence.

My point is that another Minister—perhaps I should say another Department——

No, a Minister.

In a practical way, it is the working of a Department.

In Dáil Éireann, it is the Minister who is responsible, not a Department.

It would be the Minister who would have to certify. All I would ask the Minister is to work into this in some way a provision in relation to cases where the safety of the State is concerned. I know the difficulties in drafting to provide for a situation where the section would not be operated in a case such as the one I have mentioned.

I do not think the Opposition have helped any case they could have made by their more or less extravagant allegations in another direction. I know there will be cases where different people differ as to whether or not certain claims come into one category or another, but, being realistic in these modern times, one must give a certain amount of power of discretion to a Minister. On the face of this Bill, I do not think so much heavy weather should be made of that point, but on the smaller technical point of the handling of the claims of individuals as against groups, I should like to suggest the inclusion of some safeguard.

Deputy de Valera happens to know a case and happens to be intimately acquainted with it and he is all ablaze with indignation at the point of view taken by the Minister behind a forest of regulations which, taken all together, amount to something closely corresponding to the certificate the Minister here seeks to make conclusive evidence. Consequently, Deputies de Valera and Booth find themselves ablaze with indignation against their own Minister because they feel a very vulnerable individual is denied simple justice which, they believe, would be readily available to him but for the fact that the Minister for Defence has in effect made the very kind of certificate the Minister for Justice seeks to get through this section.

The full situation was given here in answer to a Parliamentary Question.

When they sought to get a certain record they ran into a forest of regulations which up to now have proved impenetrable. Every attempt made has been successfully hedged by the production of a new regulation, dredged up out of thousands of defence regulations accumulated over the years. The Minister for Justice, in this section, is not to have the trouble of searching the whole forest of regulations to find an appropriate existing regulation to short-circuit the person in difficulty. All I am saying is that if the Minister feels a certificate requires to be made, the case should be heard in camera, before the judge only, to argue whether such a certificate has been capriciously made, and that there are no valid grounds, as Deputy de Valera is at the moment trying to argue with the Minister for Defence.

What Deputy de Valera and Deputy Booth are trying to argue is that you should not be dredging up these regulations to prevent access to information which they consider vital for the vindication of a relatively comparable person's fundamental rights. He feels a bitter sense of resentment at being frustrated by this sort of regulation. If Deputy Booth and Deputy de Valera found themselves in the position that they could go to the person to whom they refer and say: "You have a right to sue the Minister for Defence," they could go into court and say to the judge: "All these blooming regulations notwithstanding, the document which I know exists goes to the root of this whole business and, if I could bring its substance before the court, the justice of my claim would be manifest for all to see. The only thing that stands between me and the vindication of my reputation and my rights are the Minister's regulations which forbid the relevant evidence to be submitted." That is the right the Minister says we ought to confer on him by statute to do by order. All we are asking at this stage by these amendments Nos. 9 and 10 is to say it will be open to the defence to argue before the judge in camera that the Minister's order is improperly made and to call evidence to demonstrate that there cannot be a document which would prejudice the safety of the State but that there is much in it vital to his safety and his vindication vis-á-vis the Executive.

I can conceive of a case of wild extremity in which a judge of appropriate jurisdiction, having heard the Attorney General argue against that proposition, would say: "I have come to the conclusion that the Attorney General is wrong, that due consideration was not given to this matter before this order was made, and I am prepared now to hold that this document is not secret within the meaning of the Official Secrets Act and so its contents must be made available for the purposes of the defence." I can see the Attorney General in such a situation seeking an adjournment in order to consult the Minister for Justice, returning to court and saying: "Very well, my lord; in that event, we present no further evidence. We simply cannot proceed," and letting the fellow go.

If that situation arose—and I do not believe it ever will arise because I believe if there were legitimate ground for making such an order, the court would sustain the Minister—but if such a dilemma were precipitated as I envisage and the Minister came back and said: "This is not an isolated case; this is an organised conspiracy and a succession of carefully designed activities which constitute a menace to the State and it is now demonstrably impossible for me to bring these people to justice unless I have that power," I believe the Oireachtas would take another look at it. I believe it is in anticipation of a dilemma that will not arise that we are asked to withhold from a defendant a very vital and essential need, a need which Deputy Booth and Deputy de Valera themselves have experienced the want of vis-á-vis the Minister for Defence. It must be pretty exasperating for them to get up in the House and charge their own Minister with the extremities of dredging up archaic regulations to constitute a barrier between them——

I did not say that. I said the findings of a court of inquiry.

Dredging up regulations which deprive the Deputies of access to the findings of that court of inquiry. The Deputy feels a deep sense of grievance on behalf of a man who he considers is suffering an injustice because he cannot have access to the contents of a document which the Deputy feels ought to be made available to him. In a case where it is not a person's money that is at stake but his good name and his freedom, a question of whether he is going to Mountjoy or to Portlaoise on penal servitude, surely he ought to have a right to go before some judge and say: "There is evidence in existence and, if it is laid before the court, my innocence is established."?

In fairness to the Minister for Defence, he did admit and say formally that no adverse opinion was formed against the character or military reputation of the officer.

It was merely a matter of money in the case to which Deputy Booth and Deputy de Valera referred. I am thinking of a case in which a man is faced with incarceration in Portlaoise on penal servitude, a man with a wife and family. It is a terrible thing to be incarcerated by your own Government on penal servitude. It is a terrible thing to be convicted of a crime for which this Oireachtas prescribes penal servitude in your own country. The man I am thinking of is in a much worse position than the person with whom Deputy de Valera is concerned, who is merely claiming £486 worth. He says that sum should not have been withheld from him and that if the findings of the court of inquiry could have been produced, it would have been manifest that it should not have been withheld. It is merely a matter of £ s. d. But the man I am thinking of is saying: "I stand in peril of penal servitude. I can prove that the grounds on which I am being threatened with penal servitude are invalid and that I am entitled to go free, but the Minister's certificate says I may not. I may not even argue." Surely that is wrong? Surely we should not at this stage go beyond the limit of saying that the Minister may claim that the obligation to do justice in public must be suspended until the nett issue as to whether this is a confidential document on which the safety of the State depends is argued and determined by an independent judicial process?

The only thing to be argued is whether he disclosed the information and whether he was authorised to do so.

And whether it was confidential.

That will not be the real issue.

Why did the Minister take power to make a certificate?

As a safeguard. It is the Minister's document. He is entitled to say it is secret or confidential. It is his servant who is disclosing it.

The proudest title in the world is the servant of the servants of God. The Minister should not adopt the position of saying he is a servant. We are all servants in some sense.

The Minister is a servant, too.

A servant of the public charged with looking after the public welfare.

I urge the Minister to reconsider his words. The Minister is not entitled to be given this order by saying: "After all, we have got to remember the person charged is only a servant."

A civil servant.

The humbler the individual is, the more solicitous we should be in this Oireachtas to protect him.

I used the word "servant" to indicate he was in a position of trust in handling official documents. I used it in that sense, not to indicate he was of no importance but to indicate that he occupied a position of trust in relation to the Minister and the public in regard to these documents and had a duty to ensure that confidential information was not improperly disclosed.

Whatever the circumstances are—and bear this in mind— the more public opinion is stirred up the more vigilant we ought to be that he be given the right to defend himself. I urge on the Minister to contemplate the vocal indignation of Deputy de Valera—

It has nothing to do with this case.

—and the worked-up indignation of Deputy Booth—

It is not relevant.

The Minister does not seem to realise that even a passport may be regarded as secret.

Can we get back to the net point? Here is Deputy de Valera saying: "Here is a man who has a claim for £400 odd which can be vindicated if he is given access to a document which it is ridiculous to describe as secret, but we are frustrated from getting access to the document because the Minister for Defence invokes a whole series of regulations which establish his right to withhold it." If they can be so indignant about a matter relating to cash, am I not entitled to be validly apprehensive in regard to a man whose liberty and good name are at stake rather than cash?

Indignation is never rational.

I am not being indignant. I am merely urging on the Minister that we should not do something of which we would subsequently be ashamed, and we should not do it because it is convenient to do it. We should not do it because it is adminisstratively necessary to do it. No administrative convenience should justify us for injustice to an individual. We should be proud of that fact and have regard to it.

The Minister should not mistrust his own capacity for conceding something to reasoned argument. If Deputy Dr. Browne does not approve of that procedure, he does not understand the purpose for which he was sent here. If Parliament ceases to be a place where argument can sway opinions we are wasting time very largely in discussing Bills. Far from denigrating the Minister for meeting reasoned Opposition amendments, I would applaud him. I think from his own experience he knows that one consequence of meeting reasonable arguments is the expedition of legislation. It is when Ministers are prevailed upon by a variety of influences to stick their heels in and show how tough they can be, that legislation becomes difficult, and very often unsatisfactory. I do not know if the Minister regrets, or has any reason to regret any of the Opposition amendments which he has so far seen fit to meet, but I am certain he would not regret meeting this—and think of the peace of mind it would bring to Deputy de Valera.

I have listened most carefully, and with a very open mind, to this entire debate and I have this in common with Deputy Dillon that I am passionately fond of the rights of the individual and I agree that this sort of matter must be approached with an open mind, and dispassionately, if the House is to fulfil its duty properly.

Having listened to the arguments here I am satisfied that right is with the Minister. I think that in his last contribution Deputy Dillon allowed the discussion to be diffused and taken away from the point which he himself put so well the first time he spoke. To some extent the problem in which Deputy de Valera and Deputy Booth certainly have the right really is a problem of the bureaucratic cotton wool which can be produced in enormous bales by the bureaucrats. The British laugh at our Civil Servants who are only trotting after them——

On a point of order. I do not want to interrupt the Deputy but surely we ought to adhere to the rule that in this House Ministers are responsible for their own actions and not the civil servants? Is not that the rule?

The Minister is responsible to the House.

Surely we cannot establish a principle now of excusing Ministers for their actions on the grounds——

That is not what the Deputy is saying. Deputy Flanagan is talking about bureaucracy in general.

The Deputy was quite a long time on his feet. I am talking about bureaucracy and I am perfectly entitled to do that. I am not in any way taking away from the fact that the Minister is responsible for the decisions taken in the Department and in the House.

If I may come back to the point at issue. I think the case made by the Opposition falls on the speech made by Deputy O'Higgins. When he says we spent two days here talking about the judiciary and come along today and say they are not competent, he is completely missing the whole point at issue, in my opinion. This matter is political, and we have to face the fact that it is the State and it is political considerations that are involved in this matter. The Minister is perfectly right when he says it is his responsibility to make decisions when it is a political matter on which there can be no discussion because it is secret and therefore must not go any further. If he says it may not be discussed in court I think he says so rightly, because if it is of that nature then it should not be discussed anywhere.

We must base our deliberations here on the premise that Ministers will not exercise their powers irresponsibly. A good deal of the discussion here has been directed to the consideration of the position that would arise if Ministers were to exercise their authority without responsibility. I do not think we should discuss it on that basis. I would go further and say that if by any chance the Minister, or any Minister, should exercise his powers without responsibility, so long as Parliament is here and individual Deputies are able to make representations and pursue their claims for justice with the same single-minded devotion as Deputy de Valera and Deputy Booth have shown in the case which was mentioned today, we will still have sufficient safeguards against the indiscreet exercise of a power which I am convinced, having listened to the debate, the Minister must have.

I should think this is a sort of situation which would arise very frequently across the Channel. I am very interested to know from the Minister what is the power which his counterpart in Britain would have in a like situation. What is the wording of the Act?

The net effect is the same.

If the power is used in Britain, who claim to be the founders of the type of democracy which we enjoy, they had very good reason for giving the Minister this power in a political matter, in a matter which concerns the political welfare of the State and its people. I think that must be the overriding consideration. If we begin to argue here a matter of fundamental importance like this on the basis that the Minister will exercise his rights irresponsibly we will never get anywhere at all.

This is not the responsibility of the House of Commons or of any British MP. It is the responsibility of Dáil Éireann and the responsibility of every Deputy here including the Minister. I agree with him when he says that he is open to suggestion and that he is open-minded but he seems to overlook the fact that this is more important than any part of the enactments we will be discussing on the Intoxicating Liquor Bill.

A matter of the fundamental rights of the individual vis-á-vis the State, the Minister, the Executive and the Administration is at stake here. The Minister proceeds on a false premise when he tells us that, because in times of stress similar powers enjoyed by Ministers in the past were not in any way abused, we must assume that in future calm times there will not be any abuse. The Minister is not entitled to assume that we will have calm times ahead at all times. One of the things we must safeguard is that if there are times of stress again the individual is still safe from any capricious or evil or misinformed Minister who may wish to give a certificate which would prove something conclusively against such individual.

Deputy de Valera is quite wrong when he suggests that we have fallen into any political temptation. We are not making any suggestion against the Minister or any of the Minister's predecessors, or his successors if there could be any such thing as a Fianna Fáil successor to the Minister, but what we must legislate against—and Deputy de Valera should know this and Deputy Flanagan should know it—is the worst possible Minister you can imagine on the front benches of whatever Government are in power. We must guard the citizen against that. The Minister says that only the Minister himself can decide this. No judge, no court and no number of judges are competent to deal with this matter. Only the Minister can decide whether a document is secret. He is the only person qualified to do it. That is the hallmark of dictatorship and a negation of democracy.

I would appeal to the Minister to think twice over the word "conclusive" and to realise that whatever may take place elsewhere it is his responsibility. He should not put a coercive section of this nature into the legislation passed by this House. I am glad to see that at least some intimations have reached Deputy de Valera that there is some danger in this measure. I did not quite follow what he meant in everything he said. I think Deputy de Valera does agree there is some danger in this section. If so, he should not walk in behind the Minister and vote in favour of a section manifestly dangerous. Deputy de Valera and every other Deputy sitting behind the Minister should realise they should not support any legislation which contains the slightest scintilla of danger to the freedom of the individual.

I appeal, therefore, to the Minister once more not to take an obdurate pigheaded attitude to the suggestions made from this side of the House, not in any political sense. I can assure the Minister that if I were sitting behind a Fine Gael Minister for Justice who tried to enact a section of this nature, I would not walk into the lobby behind him and I am sure Deputy O'Higgins would not do so either. I am horrified when I find two Deputies who have vast legal experience and who sit behind the Minister saying that while they passionately uphold the rights of the individual the Minister is right. The Minister is not right. I am quite certain that the Minister knows he is not right but for some reason—some bug has got into his head—he refuses to accede in any way to the suggestions we make. I would ask the Minister to give this matter second thoughts. I should like Deputy de Valera to remember, as Deputy Dillon pointed out, that the difficulties which he and his friend in the Army experienced are nothing compared with the difficulties and the real danger which some citizen could experience under this section if Deputy de Valera and the other Deputies sitting behind the Minister let it get into the statute.

We are wandering, perhaps, from the precise point at issue. This Bill deals with safeguards in regard to official information. With regard to the word "conclusive", there must be some protection. It must be perfectly obvious to all of us in this modern world that where a matter such as is contemplated in this Bill is involved the decision of the Government must be conclusive. There are Parliamentary procedures and safeguards which can be invoked here but that is a different thing.

Much as many of us would desire, it is not practicable to go the whole way and expose everything in court or to judges or anywhere else under certain circumstances. Therefore, for the purposes for which this Bill is drafted, for the contingencies which are directly foreseen and which are the object of this Bill, no other way can be found of dealing with them than to provide generally as this Bill provides. Perhaps, we will all go that far.

The question arises as a matter of fact at what stage something is or is not a secret document. When I was in Opposition, I often adopted the attitude of defence of the individual as against the machine but conscious of all that let us ask ourselves a question. We have something like the safety of the State.

That is not in it.

It is implicit. It is not a question of splitting hairs. Would Deputy McGilligan define what is the safety of the State? It can be safety from a bomb but it can also be safety in relation to a severe financial or economic loss.

Would the Deputy read amendment No. 11?

These matters— and I use the term in a general way— must be matters which for the good of the community must be preserved secret while they are in train, very much as occurs in ordinary business whatever the business may be. There are certain things which prudence demands should be kept to oneself for a certain period. The question arises as to where you will have the conclusive authority. The Minister proposes that the certificate be conclusive. The Opposition suggest that it be disclosed to a judge or someone like that. In the first instance, I do not think that is the function of the judiciary. Secondly, there is the real stumbling block that no person outside can assess a whole situation in the same way as the person inside. It boils down to trusting the Administration in charge provided there are certain safeguards. I believe that the safeguards are here in this House if they are used and that we have got to trust the Administration in charge in these things. Forty years' experience show us that we can trust the Administration.

Why are you so sensitive about being able to get behind the certificate?

Supposing the Government which the Deputy supported at the time of the Korean war were negotiating a contract for the securing of vital supplies and that the advantage of the country depended on that being kept secret and that accidentally there was a danger of it being disclosed and that great damage could be done to the country, would not that Government have been justified in saying that it was a secret matter?

Then your 40 years' experience goes up the spout because none of these things was ever kept secret.

That could be the very reason justifying this.

Your pals were always in on these contracts.

That kind of observation is not helping the discussion on this matter. I merely took the hypothetical case.

I do not want to reduce this to a question of Party conflict. I am asking a simple question as to why you should be so sensitive about going behind the certificate if circumstances are apparent to the defence. The Deputy has had experience in the legal field.

Have we not all had experience in the legal field that in matters of this nature the practicalities may work out badly to the detriment of the majority as a whole? When one examines it the conclusiveness of the certificate must be allowed to stand. What I am more concerned with is whether one could restrict the field and I would suggest adding the words "for the purposes of this Act" in order to do so. If we do this I cannot see that the dangers which have been hypothetically raised will come into the Bill at all.

What are the purposes of the Act?

The first purpose is that any one who has access to official information in his official capacity should be restricted from unauthorised disclosure and if he does disclose it he should be subject to sanctions.

That does not apply only to the Civil Service.

That is purpose number one. Purpose number two is that if such information should become disclosed it will be possible to restrict the damage that will be done and have sanctions visited on anyone who has disclosed it. Those are totally different things. The purposes of the Act are pretty clear and I can only invite the Deputy to read the Act because I do not suppose I would be permitted to read it section by section. The purposes of the Act are pretty clear and I think that in our hearts everyone realises the necessity for some such Act and would be reasonable in his approach to it.

What the Deputies are afraid of, and what I am afraid of, is the application of the Act outside the purposes of the Act for purposes which are not foreseen. It is the legislative duty of the Opposition to devote its attention to that aspect of the matter. I think that if the Opposition withdrew the opposition to the word "conclusive" it would help the Minister somewhat. If there were some restrictions on the application of the certificate to the purposes of the Act then the points we are all making would be met and the Bill would be safe enough after that.

I should like to say a few things on this section because it does appear to me, having listened attentively to the debate, that there is a very serious issue involved in this proposal. Certainly the subsection as it stands smacks of draconian legislation in the extreme. The Minister has said that there is no real change in the law. Even if that were so that would be no reason why we should not examine afresh a measure of this kind. That examination is often necessary even where a Minister, in relation to any particular matter, tells the House "that has been the law up to this". I always feel that approach is unsound. We know that in the past there has crept into legislation certain provisions which would not have been contained in it if the members concerned had examined it fully. One wrong, repeated, does not add up to a right.

The Minister has said that in this subsection he is seeking to legislate to maintain a position which already obtains. I wonder is that correct. I have looked at the legislation which obtains at the moment and I do not see in the Acts of 1911 or 1920 any provision similar to that contained in this subsection here. The Minister at some stage might indicate where that power is and what the actual legislative provision is that he has in mind, where he is given a power which can affect every one of us in this House and every individual outside whether he is a public servant or not. The Minister is quite wrong, and I rather feel that he made the statement to stop a gap, in saying this can apply only to civil servants—

Primarily:

The Minister asserted this was a provision to deal with civil servants—

Primarily.

Primarily or not, the Minister knows well that this Bill can extend or apply to any citizen or non-citizen. From my own point of view, I have upstairs in a locker a number of copy documents which I feel I was perfectly entitled to put into my brief case when I left the Department of Health. I have them and I stated here quite openly that I have such documents, as has many another former Minister. The Minister will find himself one day no longer Minister for Justice ——

I shall be retiring then on pension.

The Minister will be retiring anyway. Is the situation to be, as has happened in the course of debates here recently, that accusations may be made by the Government in relation to an ex-Minister on this side of the House when he proceeds to refer to the fact of the existence of a document and to the contents of a document? The accusation was made: "That is an official secret." That happened here in the recent past. Are we to stand idly by and give a power now to a member of the Executive to certify that fact and, having done so, proceed to arrest the person concerned and deprive him of any possibility of defending himself?

As the section stands, the Minister's certificate ends the matter. The Minister becomes both prosecutor and judge in the same case and then the Minister says: "That is the law at the moment." I assert it is not the law and I should be interested to hear the Minister refer to his authority for that statement.

It is in the common law.

The Minister says it is the Common Law. Glory be to the Lord—to hear the Minister for Justice, who is supposed to have acquired some knowledge of law, making a statement of that kind! That is absurd. I now believe what I felt before is a fact, that the Minister was bluffing in this respect. There is no similar provision that I can find in either British Statute Law or our law here.

The Minister came in here and made a statement irresponsibly that he was merely providing for the reenactment or repetition of the law up to this. It is indicative of the mind behind this provision. I have grave suspicions that this is an effort on behalf of the Minister to get a convenient power into his hands, a power which undoubtedly could be abused. The Bill does not apply only to civil servants. It can apply to anyone who has, or who has had, a document in his possession which can be the subject of a certificate by the Minister. That person is then amenable to a criminal prosecution and is deprived of all defence. Let us realise how deep this goes. If this section were passed the Minister would have the power to certify not only a document that now exists but any document back in the distant past to be a secret document. He can, if given this power, go back into the past and any certificate he gives could have retrospective effect. That is a very serious power. It is no use saying it will not be abused. Deputy Dillon and Deputy Barrett were perfectly correct in saying one should test these powers by the possibility of abuse.

This is a political measure. By reason of the object of the Bill it is inevitably bound to deal with politics or political matters and matters of concern to the State defined, as they must be, by the opinions of the Government in office for the time being. Therefore, as a political measure, it is highly susceptible to abuse. Being a political measure and being decided on political considerations, it is more than possible that any power contained in a Bill of this kind could be irresponsibly exercised. Therefore, we should not give this power to a Minister unless we are clearly satisfied that there is no new departure, that it is not a new power and that it is absolutely essential in the interests of the State. In my view, having listened to the debate, the Minister has made no case whatever for getting this power and I regret to say he has tried to deceive the House by asserting that this, in fact, is no change in the law. When he finds this power is not already in Statute Law he goes further and says: "You will find it in the Common Law." I should like to find a principle of our Common Law which lays down, or could permit, a person to be charged with an offence and deprived of the possibility of defending himself. If that is the Minister's view of the ordinary conventions or rules of this State it is highly uncommon law.

The judge is being directed as to the judgement he should give.

I shall give a reference to cases upholding the absolute right of Ministers to claim privilege for confidential documents.

The Minister may give what references he likes. I assert the Minister will nowhere find any provision which entitles him to certify, on the accusation itself, that an offence has been committed and deprive a person concerned of any possibility of disputing the charge. That is not the law; it could not be the law and it would require a very specific statute to make it the law.

If it was the law, why is the section here?

It is here. This is a very extreme power sought by the Executive. If we had here a Minister who was prepared, in a reasonable way, to take the House into his confidence and make a case for the power he sought I have little doubt that on this side we should have gone a great distance with him. Instead, we have a Minister, in a cocksure boasting way, saying: "This only applies to my servants and I should be in a position to certify in relation to my servants whether a document is secret or not." Of course it transpires that that is not so. It applies to a whole variety of people who may never have seen service in the Civil Service, and the Minister says: "There is no real change in the law." It transpires that is not so and here is a new power to be put covertly into a Bill to be exercised on political considerations by the Minister for the time being. I assert we cannot afford to give that power on the case made to any Minister and least of all to the present Minister for Justice.

I do not think the issue here is a quibble as suggested by Deputy de Valera. I cannot understand the sensitivity that has arisen in the Fianna Fáil Party about a very simple purported change. It is quite clear that if the words prima facie are substituted for the word “conclusive”, it is purely because of some “fall-short” in evidence, and that is why the Minister now seeks what I have described as an arbitrary power.

Does prima facie mean anything at all?

I shall give you a lecture on it now.

Deputy Dillon interpreted it differently.

Deputy Dillon made his own case. I have been dealing with prima facie cases in the courts for 20 years and I hope to give some enlightenment to the Minister.

Get together.

Deputy Major de Valera is together with us part of the way anyway.

I take it that prima facie simply means——

The Deputy will be expelled from the Party.

I shall make my own case. I shall not be expelled from the Party or anywhere else. I take a prima facie case in the concept of something that is ultimately to have effective sanction, to be one that requires an answer. Therefore, whoever the suspect may be, once the Minister is in the position that he has a case to answer, he has achieved the purpose of bringing into the arena the problem of whether or not somebody has abused an official secret or an official document. It would be well for people like Deputy de Valera, who, I believe, has a conscience in relation to such legal considerations, to consider the difference between “prima facie” and “conclusive”. There is no doubt that, no matter what present circumstances may be, if this measure reaches the statute book in its present form, it could be open to the most violent abuse.

I do not suggest there is something esoteric or sinister in the power the Minister seeks. What is wrong is that the Minister deliberately refuses to see the potential danger. It is well known in our experience of this House that Ministers do not like to see the spoiling of the child they christened. However, I am asking the Minister for Justice who is trained in law and, I understand, highly qualified in other fields of general public administration and knowledge, to sit back and view this in a calm deliberate way and not on the basis that we are trying to thwart him or create unreal opposition.

What we are trying to do is to get the Minister to realise that once the necessity for an answer to a case has been established, the normal line of evidence and the normal circumstances surrounding any criminal or quasi-criminal prosecution will come into being. The Minister is as well aware as I am, from our experience of the criminal and common law in this country, that wherever a prima facie case is established, 95 per cent. of the subsequent prosecutions ultimately lead to a conviction in relation to the crimes named. I would much prefer to see the odd percentage go free completely than have vested in some Government who might subsequently come into office an arbitrary authority whereby they could certify all kinds of documents in a situation of expediency or political difficulty and in that way cause the elimination of political opponents and others.

We have a tradition that we guard fearlessly in this country of being unquestionably fair to the individual. Let us for a moment examine the principle behind the type of certificate that this Bill purports to give authority to the Minister to issue. If there is any unscrupulousness, not necessarily in the Minister but behind the scenes in any senior officers of the public service, we might find a Minister influenced wrongly by some officer who is advising him because of rivalry between people who are his servants, so that this Bill itself could be used for the purpose of eliminating one of them.

I am all in favour of giving any Government the right to control the type of information that is vital, the type of document that is germane to the wellbeing of the State. That can be done by proper safeguards within the law rather than the transfer of an arbitrary power to an executive authority. We have had too long an experience of that type of legislation and I can tell the Minister that in another code, where this certificate of the Minister is to be taken as conclusive, all kinds of difficulties arise because sometimes it is patent on the face of these certificates that they are dishonest and we find ourselves involved in certiorari or mandamus to get orders quashed.

I hope my former circuit colleague, Deputy de Valera, will persuade the Minister that once he has got the situation that he can insist on an answer and a defence being raised to the issue, he has enough authority to have the full implications of such a breach of secrecy dealt with. It would be better that in the normal way this type of legislation should be non-controversial, that we should try to achieve the type of legislation that weighs the scales of justice very fairly. I have very serious doubts whether this Bill, enacted with this section as it stands, will bear the light of the test of constitutionality because it is a complete infringement in its present form of the ultimate right of the individual.

The Minister should have a second look at the impact of the section. It is part of the training through which we go, and the type of life we have to lead as lawyers, that we very often have to take a second and a third view of a situation. I appeal to the Minister not to close his mind to rational, logical submission. I appeal to him to ensure that this piece of legislation will enshrine in the statute book the principles for which we are all presumed to stand. One of those principles is the right of every man to be deemed innocent until he is proved guilty. In this case, the Minister is arrogating to himself the power in certain circumstances to say to a man: "You are guilty. I say it. I say it conclusively, and that is an end of it." I ask the non-lawyer Deputies behind the Minister to search their consciences to see if this is in keeping with any of the principles basic and common to all our beliefs.

I am surprised the Minister has not made another effort to meet the House on this. It must be clear to him by now that we on these benches take a very serious view of this proposal. When this matter was raised by Deputy Dillon, myself, and others on the Second Reading, the Minister gave an assurance that the views expressed then on these benches were worthy of weighty consideration and would receive that consideration from him. When these amendments were moved today, the Minister's attitude was simply to inform the House that he was not accepting the amendments, without giving any explanation whatsoever, and without making any defence whatsoever of the section as it stood.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

The Minister informed the House that he was not accepting these amendments. These amendments are, of course, narrower than amendment No. 7 which was to delete the subsection. The Minister later intervened, after Deputy Dillon had addressed the House on the subject, and gave his reasons for upholding the section as it stands with the inclusion of the word "conclusive" in relation to the Minister's certificate. I suggested before—I suggest it again now—that the Minister has not made any strong case as to why this extraordinary power to be vested in the Minister under the subsection should be retained in the Bill.

I do not believe the Minister fully understands what he is asking the House to do. I do not believe that either he or his advisers, when this section was being drafted, fully realised the extent of the field they were opening up. I do not think the Minister realised, until it was pointed out to him here in the House, the various consequences which a misuse of ministerial power under this subsection could have. I want to point out to the Minister that, having heard the discussion here, he is now left under no illusions whatever. He is now aware of the consequences which could ensue from an abuse of the powers he will be given under this subsection.

It is, I think, reasonable to ask the Minister now, having heard the discussion in the House, having heard the views put forward from these benches, having heard the strength of the arguments put forward, that he should pause and reconsider the matter further. So far as I am concerned, this is a vitally important matter which affects, or may affect, the security of the freedom of individuals when up against the decisions, as they would be, of the Executive—the decision of a Minister to declare a particular document to be secret and confidential. In the course of his remarks, the Minister adopted the attitude of saying that these are documents which belong to the Minister, ministerial documents, and he, and he alone, is the person who should have the right to decide in dealing with his servants—even allowing the phrase as intended to apply to civil servants—what should be done with these documents and what should not be done with them.

In arguing in that way, the Minister over-simplifies the situation. It is not as simple as that at all. In the arguments the Minister has made, he has not had any regard to the fact that this power could be used retrospectively; he has not had any regard to the fact, which is abundantly clear from the wording of the Bill, that the Minister, or any of his colleagues, could immediately, on the passing of this Bill, declare to be confidential by means of a certificate any document which passed through the hands of any ex-Minister or any ex-Parliamentary Secretary since the State was first established. The Minister overlooks the fact that it would be open to him under the terms of this Bill to declare the passport of any individual in this State to come within the terms of a certificate issued by him, or any licence, or permit. The subsection as it stands may go a great deal further than what would ordinarily be regarded as confidential documents in the sense that they deal, in some way, with the safety or security of the State.

It has been pointed out to the Minister, and this is an argument to which he must have regard if he approaches this in a reasonable manner, the danger is not so much in the case of a Minister who exercises these powers in a reasonable and judicious manner, but rather the danger is that these powers may be abused. It is proper that we should have regard to the fact that that danger exists. Whatever legislation is passed here does not apply merely to existing Ministers. It applies to the Ministers who will be in office after the next general election and to those who will be in office following that again, down through the years.

If there is danger of abuse, if there is danger of a serious situation arising and serious consequences for individuals if those powers are abused, the Minister must take that into account. He has not done so. His attitude has been that it might be dangerous to leave it to the judiciary to decide whether or not information should be regarded as confidential or documents should be regarded as secret. I think his phrase was that it would be dangerous to allow a judge to be the arbiter in these matters, if they dealt with the safety of the realm and that the Minister is the only person who would be in a position to come to a decision by reason of facts within his knowledge.

As I said before, that is an extremely dangerous attitude for the Minister to adopt. The whole subsection, so long as the Minister includes in it "conclusive" in relation to evidence, is a bad subsection. The Minister challenged Deputy Seán Collins as to whether or not the phrase prima facie had any meaning. I do not know whether the Minister was serious in that interjection. If he was serious, I suggest that he ask his advisers to look up some of the other pieces of legislation where I think that phrase is actually used.

It is quite clear, I think, to the Minister and to everyone else what the phrase means and what it is intended to mean in this particular context.

In this particular context it would be meaningless.

In this particular context it would be full of meaning.

The whole point here is to keep the document secret.

From everybody.

That can be done if necessary by holding the trial in camera, in secret.

Of course it can.

That is not the whole issue here.

The whole issue here is whether or not the document should be regarded as secret and confidential.

Yes, that is the point I am making.

The Minister wants to provide that whether or not it should be regarded as secret or confidential, the Minister gives the certificate that it must be so regarded, rightly or wrongly, and that is what is at issue in this amendment in this subsection. If the Minister does not care for the phrase prima facie, which I believe fits the bill perfectly, I do not mind; I am prepared to accept any reasonable alternative that the Minister offers other than the dogmatic attitude that the only word he will use in the subsection is the word “conclusive”.

Can the Minister get something else—"rebuttable", even. Can we not say that the matter is "rebuttable"?

That is what prima facie means.

My simple intention here is to try to make this Bill a workable, practical instrument. I would endeavour to persuade the House that if you have a situation where, in order to prosecute a person for disclosing a confidential document, you must disclose that document itself to the world——

No, not to the world— to the court, in camera.

That is being absurd.

To the court, in camera.

To the court, in camera? The harm is already done. Is the jury to be present?

No jury at all.

Are solicitor and counsel to be present? These might be the very people from whom it would be desirable——

You can charge him with communicating——

His solicitor and counsel might be there. He might have only part of the document. He might want the rest of it.

Surely his advisers can argue that the document in question is not secret or confidential?

If counsel or solicitor is not able to assist a citizen, it would be very dangerous.

I am absolutely conscious of the fact that there are solicitor and counsel to whom it would be just as dangerous to disclose one of these documents as to any other citizen.

Therefore, the citizen will not rightly be defended.

In a trial of this nature, the essence of the trial and the main effort of the defence would be directed to establishing (1) that the information was not disclosed and (2) if it were disclosed, that it was authorised. The element of secrecy, of confidence——

Surely the defence will be that the document in fact was not secret?

The Minister, without interruption.

The element of secrecy or confidence in relation to the document would be a comparatively minor matter.

It is basic to the charge.

We are not by this Bill worsening the position of the defendant one iota.

The whole trend of common law at this moment is to the effect that a Minister of State can walk into a court and say: "I certify that it is not in the public interest to disclose what is in this document" and the court will unhesitatingly accept that.

That is completely different from the earlier argument of the Minister.

The position at the moment under common law is that it does not have to be secret or confidential for the Minister to walk in and say that. A public official can be prosecuted for disclosing any information of which he becomes aware by virtue of his office. The prosecution do not have to prove that it is secret or confidential. In this Bill, at least I am restricting it to secret and confidential information.

But you give yourself the right to certify what is secret or confidential.

But somebody must——

A judge——

Why not let the tribunal deciding the issue——

On the one hand is the case of the person charged. He is in the dock in relation to particular information which the Minister says is secret. On the other hand is simply the case of a Minister, in the public interest, not desiring to publish information when the Minister or his officials are in the witness box in the courts. They are two completely different things.

It applies in both cases at the moment.

They are two different principles.

I am endeavouring to reply to Deputy M.J. O'Higgins. It applies in both cases. It applies either in a case where a person is charged—and I have already given a reference to a case——

Can the Minister give me the reference again, please?

——or in a civil case where official documents are asked to be produced.

A person can be found guilty because the Minister or the Government can certify that the information is confidential.

The guilt of the person accused will not be determined in any significant way by the degree of secrecy or by the confidential nature of the document. It will be determined on whether he was that official, on whether he disclosed the information and, if so, on whether he was authorised to disclose it.

I think the Minister is mixing up conviction with penalty.

It is on these issues that the cases will be determined.

The Minister is not giving the court the right to decide whether it is secret or confidential.

Would the Minister mind repeating the name of the case that was quoted, for information? The Minister referred to a case of 1961.

First Queen's Bench Reports, 1960, Auten v. Rayner (No. 2).

What is the page, please?

I shall not do the Opposition's homework for them. There is a barrage opposite.

I should say that that is a crapped case.

I want to comment on what has been said. Hearing what has been said, I am inclined to agree somewhat with the Minister. It is suggested here that a document which could be dangerous if the contents became known should be allowed to be known to a court, in camera. I am satisfied it would then no longer be a secret. There is an old saying that what is known to two people is no longer a secret. Whatever excuse there might be for suggesting the judge ought to know, there is no excuse for suggesting that anyone else should, as it would be dangerous. The Minister is correct and there are counsel who may not be trusted. There is plenty of evidence that people in high places are actually spies and that they talk and that their wives let it be known what their husbands have said. Anybody who examines how the Russians got confidential information about the atom bomb will discover that the information came from very high and reliable quarters. During the last war, one high and mighty individual in Japan was a spy, although he was actually in the confidence of the Japanese Cabinet. I am satisfied that once a thing is known to a number of people, it is no longer a secret but there might be a point that the judges should be made aware of it.

The name of the case is Auten v. Rayner, First Queen's Bench Division Reports, 1960, at page 669.

Will the Minister give us the head-note as a matter of interest?

I certainly will not. The Deputy can do something for himself. The Rose Tattoo case is also a case in point and quoted a number of criminal cases.

The 1960 case is not binding here.

We were talking at that stage about Britain—it is binding in Britain.

The Rose Tattoo case specifically reserves criminal matters.

It is a bit of the Minister's smokescreen.

Question "That the word proposed to be deleted stand" put.
The Committee divide d: Tá, 63; Níl, 54.

  • Aiken, Frank.
  • Allen, Lorcan.
  • Bartley, Gerald.
  • Blaney, Neil T.
  • Boland, Kevin.
  • Booth, Lionel.
  • Brady, Philip A.
  • Brady, Seán.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Breslin, Cormac.
  • Calleary, Phelim A.
  • Carter, Frank.
  • Clohessy, Patrick.
  • Colley, George.
  • Collins, James J.
  • Corry, Martin J.
  • Cotter, Edward.
  • Crinion, Brendan.
  • Crowley, Honor M.
  • Cummins, Patrick J.
  • Cunningham, Liam.
  • Davern, Mick.
  • de Valera, Vivion.
  • Dolan, Séamus.
  • Dooley, Patrick.
  • Egan, Kieran P.
  • Egan, Nicholas.
  • Fanning, John.
  • Faulkner, Padraig.
  • Flanagan, Seán.
  • Gallagher, James.
  • Galvin, John.
  • Geoghegan, John.
  • Gibbons, James M.
  • Gilbride, Eugene.
  • Gogan, Richard P.
  • Haughey, Charles.
  • Hillery, Patrick.
  • Hilliard, Michael.
  • Kennedy, Michael J.
  • Kitt, Michael F.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Lemass, Seán.
  • Leneghan, Joseph R.
  • Lenihan, Brian.
  • Lynch, Celia.
  • MacCarthy, Seán.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • Meaney, Con.
  • Medlar, Martin.
  • Moher, John W.
  • Mooney, Patrick.
  • Moran, Michael.
  • Ó Briain, Donnchadh.
  • Ó Ceallaigh, Seán.
  • O'Connor, Timothy.
  • O'Malley, Donogh.
  • Ormonde, John.
  • Sherwin, Frank.
  • Timmons, Eugene.

Níl

  • Barrett, Stephen D.
  • Barry, Anthony.
  • Barry, Richard.
  • Belton, Jack.
  • Browne, Michael.
  • Browne, Noel C.
  • Burke, James J.
  • Burton, Philip.
  • Casey, Seán.
  • Clinton, Mark A.
  • Collins, Seán.
  • Connor, Patrick.
  • Corish, Brendan.
  • Cosgrave, Liam,
  • Costello, John A.
  • Desmond, Dan.
  • Dillon, James M.
  • Dockrell, Henry P.
  • Dockrell, Maurice E.
  • Donegan, Patrick S.
  • Dunne, Thomas.
  • Esmonde, Sir Anthony C.
  • Farrelly, Denis.
  • Finucane, Patrick.
  • Flanagan, Oliver J.
  • Spring, Dan.
  • Sweetman, Gerard.
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Harte, Patrick D.
  • Hogan, Patrick (South Tipperary).
  • Jones, Denis F.
  • Kenny, Henry.
  • Kyne, Thomas A.
  • Lynch, Thaddeus.
  • McAuliffe, Patrick.
  • MacEoin, Seán.
  • McGilligan, Patrick.
  • McLaughlin, Joseph.
  • McQuillan, John.
  • Mullen, Michael.
  • Murphy, Michael P.
  • Murphy, William.
  • Norton, William.
  • O'Donnell, Thomas G.
  • O'Higgins, Michael J.
  • O'Higgins, Thomas F.K.
  • O'Keeffe, James.
  • O'Sullivan, Denis J.
  • Pattison, Séamus.
  • Reynolds, Patrick J.
  • Ryan, Richie.
  • Tierney, Patrick.
  • Tully, James.
Tellers: Tá, Deputies J. Brennan and Geoghegan; Níl, Deputies O'Sullivan and Jones.
Question declared carried.
Amendment No. 10 not moved.
Section 2, as amended, agreed to.
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