Vol. 196 No. 4
I move amendment No. 11:—
In subsection (1), page 4, line 16, after "not" to insert "in any manner prejudicial to the safety of the State".
May I take amendments Nos. 11 and 12 together? They are not directly in line with each other but they are complementary and a certain amount of time could be saved if they were taken together.
Yes— amendments Nos. 11 and 12 together.
Amendment No. 13 is a minor one. I do not know what the "State authority" means. First of all, as the section stands, it creates one of these offences known as "absolutely prohibited matters," that is to say, that, generally speaking in the criminal code which we have inherited and built up, there is something of the nature of a guilty intention. A number of statutes have been brought in, increasingly in recent years, where a thing is prohibited completely. It does not matter whether the person had the best intentions in the world, something has been done which should not have been done and that finishes the whole matter. As this section stands, it is of that type:
A person shall not communicate any official information to any other person unless he is duly authorised to do so or does so in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the State to communicate it.
I want to import a mens rea into this, that there should be a special intention of a guilty type before an offence would be committed and therefore I am moving to put in “a person shall not in any manner prejudicial to the safety of the State communicate” certain of these documents.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
The amendment is to insert a particular phrase which imports a special mens rea that a person shall not in any manner prejudicial to the safety of the State communicate certain information, with the usual reservations, unless he is duly authorised or does so in the course of his duties or in the interest of the State. I want to add on certain other points to which I shall come later. As the matter stands, the mere communication of what is called “official information” constitutes an offence. One has to turn then to the definition section to see what is official information. “Official information” means any secret official code word or password, and any sketch, and a whole lot of other things, “which is secret or confidential or is expressed to be either,” and for the purpose of manufacturing a new offence the Minister has given power to say, by a certificate, that something is secret and confidential and that ends that matter.
There is a second leg to it that the information "which is or has been in the possession, custody or control of a holder of a public office by virtue of his office or to which he has or had access, and includes information recorded" by a tape recording device or any matter of that kind. We then turn to "public office" to find the limits of this. The phrase "public office" means :
an office or employment which is remunerated out of the Central Fund or out of moneys provided by the Oireachtas, or an appointment to, or employment under, any commission, committee or tribunal set up by the Government or a Minister for the purpose of any enquiry.
I do not think I am doing any wrong to the section by paraphrasing in this way, that a person in any office paid for out of the moneys voted by the Oireachtas or out of the Central Fund, is a person who may get information and if he communicates that, no matter what his intention is, or how good his wishes are, it becomes an offence. I regard myself as a person who is in that category. I have been, and still am to some extent, remunerated from moneys voted by the Oireachtas. Judges, too, are remunerated from the Central Fund. The whole section goes wider and says "any commission, committee or tribunal" which we appoint from time to time and if people are appointed to serve on tribunals or commissions set up by the Minister, they are also brought into the categories covered by the section. If any of these people, say, an ex-member of the Government, or an ex-Parliamentary Secretary, an ex-Deputy, an ex-Senator, or a sitting member of the Seanad or Dáil, or a person serving on any committee or commission established by the Government, gets information and communicates that to anyone else, then unless he gets inside the scope of the reservations, he commits an offence. Whether the matter is secret or confidential will be declared by the Minister.
When this matter was discussed on Second Reading, Deputy Dillon drew attention to the fact that the explanatory memorandum circulated with the Bill was guilty of an error by omission certainly, if it were not deliberate, and that the various things we discussed in subsection (3) of Section 2 were regarded as something that were always there. Deputy Dillon drew attention to the fact that the White Paper simply referred to that part of the Bill which contained the following words:
Part I contains the definitions and provides for the repeal of the 1911 and 1920 Acts
and that this was definitely new and was not put into the explanatory memorandum as being new. When replying, the Minister, at column 690 of the Official Report for 28th March this year, and dealing with this matter of the certificate, said:
The public interest would be prejudiced if the information were disclosed but, if the accused denied that the information was confidential, the prosecution would have to disclose it in court.
He went on to say:
That would be an impossible situation, especially where the safety of the State would be involved, and this provision is in the Bill to meet such an eventuality.
I took that to mean, as I read it, that the Minister agreed that this idea of certifying a matter to be secret and confidential, in a conclusive way, would be used only if the safety of the State were concerned. Because of that, I put down this amendment to say that if the communication was made, it was an essential part of the proof that the communication had to be made in any matter prejudicial to the safety of the State. I think the House would be agreeable that where information in documents, plans or maps with regard say, to secret weapons, or even ordinary warlike materials, was of a secret or confidential nature, and where the disclosure might be prejudicial to the safety of the State, it should be certified as secret and confidential. There is no such limitation in the section.
That will be a matter of fact. There will be a certificate from the Minister to say whether a matter is secret and confidential or not. Another question is added to that—whether a person, because he was in an office described in the definition section, did communicate with somebody without getting authorisation. That includes absolutely prohibited matters which, of course, are growing under modern legislation, but this is the creation of a criminal offence which, under Section 13, can be marked on summary prosecution——
With £100 or six months' imprisonment.
Or both. These penalties may be imposed under that section for the simple passage of a document, declared conclusively to be secret and confidential by a Minister, to somebody who does not come within the meaning of the section. My simple request is to add to the end of the section the words "or when such communication is required in the interest of justice or in connection with court proceedings". As far as my memory goes, I have taken that phrase from what one of the judges said in the Rose Tattoo case where they called attention to the fact that they took a serious view of the situation where a man might be charged with an offence and that it might be in the interests of justice that certain documents could be disclosed.
No matter what the Minister may decide by certificate, supposing I am in possession of a document to which I have had access because I held an office which was remunerated by moneys provided by the Oireachtas, and somebody is charged under the third part of that section with obtaining information from me, I think I should be entitled to go into court and tell how I got the information. A person might say it was got accidentally. Supposing he was discussing a matter with, say, a Deputy and the Deputy gave him certain information which was retrospectively declared by a Minister to be secret and confidential, I think that person should be entitled to parade himself as a witness, to go into court and say to the court: "Here is a record of the document of which I took a note." I think it is in the interest of justice that such a person should be able to say to the court : "I gave that man certain information and I documented it from certain information, certain papers I have."
There is a good deal of falsification of history in this country from the period 1916, and certainly from 1918, and the only way that can be corrected is by the other side being put. I know there are certain people engaged in the preparation of papers to have memories written. These may be worth something in the minds of the authors but they will not be of any public value unless they are documented. That, in terms of this Bill, is a definite communication and perhaps it is contemplated that the Minister could stop it. I do not say a Minister will stop it, but if one communicates this to anybody one is guilty under Sections 1 and 2 of the Bill and the person to whom he gave the information, say a person who was preparing his memoirs, will be guilty of obtaining the information. Surely the public and the judges should be able to say whether there was anything prejudicial to anything in the country in that. I shall refer again to the Minister's statement last March about disclosing the information. He said:
That would be an impossible situation, especially where the safety of the State would be involved, and this provision is in the Bill in order to meet such an eventuality.
I read this and conclude that it refers to cases where the safety of the State is involved As far as the safety of the State is concerned, we had the old British Act which defined such places as dockyards, places where submarines were made or where airships were made. The provision here goes far wide of that. There is no limitation with regard to "prohibited places" or with regard to anything that is prejudicial to the safety of the State. The thing would lose its dangers if the judges were able to investigate the nature of the documents, but more particularly if they were able to investigate whether what was being complained about was in any way prejudicial to the safety of the State.
The provision here goes far beyond that and I think it should be limited in the way I suggest in my amendments. I am quite aware that under the 1911 Act, where a breach of the ordinary run of the law was made, a person's known character as shown from his movements could be brought in to aid the court in deciding whether a particular activity was or was not prejudicial to the safety of the State—one could go back on a man's record in order to give the court an easy way of determining whether a particular activity was prejudicial to the safety of the State. It is therefore administrative law gone to the highest point of excess that we should say it does not matter what the document or what the intention was. The result, so long as there has been communication of certain information, is that an offence has been committed and under subsection (2) of Section 13 this may involve a fine of £100 or imprisonment of six months or both such fine and such imprisonment. There should be some limitation on this.
I agree with Deputy McGilligan that it is highly important. There should be some limitation of that nature inserted somewhere in this section. The Minister seems determined to take as much power as he can so that he, or some successor, can use it. I do not say the Minister would do that, but there is always the question of his successor. He seems determined to push administrative law to its furthest limit. I do ask him to undo the harm he has already done, despite the most solemn warnings from this side of the House, in pushing the obnoxious and outrageous sections of this Bill through the House. I would ask the Minister to do something of the nature suggested by Deputy McGilligan.
I am afraid I cannot accept either of Deputy McGilligan's amendments, not just because they were put down by Deputy McGilligan. The effect of the first amendment would be this. A disclosure of information by a civil servant could only be an offence if it were done in a manner prejudicial to the interests of the State. Surely that is not what we want? Civil servants are persons in responsible positions who have access to all sorts of information. Would there not be chaos if they were free to disclose that information at will? It is their solemn duty to respect the information which comes to them in the course of their official duties and not to disclose it in any unauthorised fashion. Do not forget it must be secret and confidential information.
The Minister is the only person who says so.
No; it can be secret and confidential on its face.
No; it is expressed to be.
It can be on its face.
As found by the Minister.
There are all sorts of information the Minister would not have to certify as secret or confidential because, of its very nature, everybody would know it was so.
The Minister can say anything is secret and confidential.
Any official information. Who else should be entitled to but the Minister? It is information in his Department; it is his Department.
Why should the Minister for Finance be entitled to certify something I did as official?
A Minister is in charge of a Government Department, and a Government Department is a public institution. In fact, it belongs to the people, and the Minister is there as their custodian. Everything in that Department is entrusted to the Minister for the people.
Under this section, the Minister for Agriculture could certify for the Minister for Justice.
If Deputy Collins is going to interrupt in that fashion, I shall not continue.
The poor, innocent baby!
The Minister is entrusted with the care and management of his Department. All information inside that Department is under his jurisdiction and care. The people who work in that Department are responsible to the Minister. They have a bounden duty to respect the confidence placed in them. The Minister is the person to decide whether it is perfectly all right to disclose a document or not. That is a reasonable and valid approach.
I want again to make the point that in this respect under the present law, both here and in Britain, there is absolutely no necessity to have a mens rea, as suggested by Deputy McGilligan, or that information should be confidential or secret. The very fact of communicating official information is, in itself, an offence at present.
The second amendment proposed by Deputy McGilligan suffers from this defect. If we were to adopt it as it is put down, it would certainly mean that a civil servant could go along to any court of law and at his own discretion, disclose any information he wishes. Surely that is not what is required? The situation that now prevails is perfectly satisfactory. If the court requires the production of any official documents or evidence as to some official business, then the appropriate head of a Department authorises a particular officer to attend the court and give whatever information or evidence the court requires. If Deputy McGilligan's amendment were adopted here as such, it would mean that such a person who had special information would not have to seek the permission of his Departmental head to give it in court and that he would be freed from all obligation in that regard. I suggest that would be ridiculous. The question of the Minister's certificate as to the secret and confidential aspect of the document being conclusive has nothing to do with the particular subsection with which we are concerned here.
Surely it has? Because there are no limits on that, we must put limits somewhere else. The Minister's argument is puerile foppery, and he knows it. He has deliberately taken unto himself an unlimited power. Now that some limit is proposed to what is suggested, he is afraid the child he is trying to christen will be spoiled. The purpose of these amendments is very simple. There is no use in the Minister complaining in an airy-fairy manner that he is being rudely interrupted by me and making verbose utterances without coming down to the basic principle. The basic principle as put forward by Deputy McGilligan is very simple. He wants a limitation on what the nature of the communication must be. It must be inimical to the safety of the State before a charge will lie on the basis of an arbitrary decision by the Minister as to whether he thinks it secret and confidential or not.
I have had the privilege of serving on Government commissions. I have had the privilege of being born into a family where you have a lot of documentation that will put right the falsification of history. I might be in the position tomorrow that, if I communicate that to somebody who wants to do an historical analysis of the situation, some Minister — I am not suggesting it will be the present Minister—who might find the revelations hurtful to his political background may declare these to be secret and confidential documents because they were obtained by a forbear of mine when he was in the position of negotiating with a foreign power. That is the kind of thing that can be done. I am not going to say this behind doors. I shall say without any hesitation that Fianna Fáil have whitewashed history and distorted history to try to justify themselves.
That does not arise.
With respect, I submit it does arise.
Will the Deputy please resume his seat? The Deputy should not address the Chair in that fashion. He cannot brush aside the Chair lightly. I am informing the Deputy that what he has just said does not arise on this amendment.
I submit to the Chair that it does, for the simple reason that the information I am discussing now could be declared retrospectively under this Act to be confidential. As such, it must arise. I make that submission with respect. Once anything obtained in an official capacity is in the possession of somebody, under this Bill it is quite at the option of the Minister to declare it to be confidential and secret, even though the event may have occurred years ago.
That must be relevant to this Bill because this Bill fundamentally deals with the freedom of the individual in that respect. The Minister is deliberately trying to shed words over a basic principle as simple as this: that it is not right that an executive authority should try to obtain a global freedom in relation to what will constitute an offence, particularly when he has already taken to himself powers without reference to anybody and has given himself the right to declare conclusively that something is secret and confidential.
