Dáil Éireann debate -
Wednesday, 31 Oct 1962

Vol. 197 No. 2

Official Secrets Bill, 1962 —Report Stage.

Mr. McGilligan

I move:—

In page 3, line 28, to delete "or an appointment to,".

There are seven amendments in my name to this piece of legislation. The Bill is incapable of real amendment but I have put down these amendments in an effort to get rid of some of the worst features of the Bill. I want, first of all, to draw your attention to the phrase that is used in the description of "official information". In the definition section, Section 2, it says: "‘Official information' means . . . "; then there is a series of words which are something of substance, something that might possibly be regarded as proper to be protected by an official secrets code: "Secret official code word or password". However, then the definition widens out and there is included: "Any sketch, plan, model". Again this might be regarded as a type of document which should be protected but after that the definition becomes very general: "article, code, document or information . . . "

First of all, the information has to be secret and confidential and, if that were left for the adjudication of the court, nobody could object to it because there would have to be a case made by those who were prosecuting that the information communicated was secret and confidential. However, there is added to that that this information may be expressed to be either secret or confidential. In a later part of the section it says:

A certificate given by a Minister under his seal that any official code word or password or any sketch, plan, model, article, note, document or information specified or indicated in the certificate is secret or confidential shall be conclusive evidence of the fact so certified.

The safeguard that at one time seemed to be provided by the adjudication of the court is taken away. All that is to happen is that a Minister, a member of the Government, certifies that something is secret or confidential and the first obstacle in the way of getting a successful prosecution is gone. The second point is this: the material declared to be secret or confidential has to be in the possession, custody or control of a holder of a public office. So far as that refers to civil servants or the people who are servants of the State in different capacities, one again might not object to it but it goes on to say: "or to which he has or had access by virtue of his office . . . " The rest of it does not matter for the purpose of my amendment.

That directs attention immediately to the public office. All civil servants are bound by a declaration which they sign with regard to keeping secret any information which comes to them by virtue of their office and if public office merely meant the servants of the State that would not be so bad but the public office goes on further and is widened in its interpretation to mean "an office or employment which is remunerated out of the Central Fund or out of moneys provided by the Oireachtas." Stopping at that point, there immediately comes to one's mind the fact that civil servants are clearly people remunerated by moneys from the Oireachtas. So are the Guards and so are the teachers. When one thinks of the Central Fund that brings in the judges, so that "public office" here refers to the whole body of servants of the State whether they are in the Civil Service, the Guards, the Army or the judges.

The matter goes further still. Again, I feel that there might not be much trouble as long as there is a protective clause that the information was prejudicial to the safety or the interests of the State. There is no necessity, for the commission of an offence in connection with this matter, that there should be anything prejudicial. As long as what is official information is communicated to somebody else, then an offence has been committed. Again when one sees the end of this definition while hesitation would be greater with regard to, say, the ordinary servants of the State, one would not object to bringing in as the holders of public office anybody employed "under any commission committee or tribunal set up by the Government or a Minister for the purposes of any inquiry." Generally speaking, when an inquiry is established under the auspices of the Government one calls upon civil servants and local authority servants as being practised people in the taking of minutes and recording information.

Again, I think there should be some protective clause if the net was only cast wide enough to catch those employed under any commission, committee or tribunal set up by the Government or a Minister for the purpose of an inquiry, but the public office is made applicable too and groups anybody appointed to a commission, committee or tribunal set up by the Government or a Minister for the purpose of any inquiry. These people then, having become by definition the holders of public offices, are forbidden to communicate to anybody other than amongst themselves anything called official information. That means not things upon which the safety of the State depends and not things prejudicial to the safety of the State but anything that comes to that person to which he has access by virtue of his office having being appointed a member of a commission, committee or tribunal.

Further, it has to be noted that the reference to communicating includes not merely "communicating or receiving, whether in whole or in part" a particular document, but the information or the substance of it, or the effect of it or the description of it. If anybody communicates either the substance, or the effect, or the description of something to which he has had access because of having being appointed to a commission, committee or tribunal under the auspices of the Government, then by merely communicating that to somebody else he is guilty of an offence. The communication includes the transfer or transmission thereof. Not merely that, not merely the transfer of the document, but the communication of any information or the substance, the effect or the description of any information to which a person has had access because he has been made a member of a commission set up by the Government.

A number of examples occur to me. One commission established at the moment deals with higher education. The chairman is the Chief Justice and a very eminent member of the hierarchy is a member of that body. These two members become holders of a public office. If they desire to communicate, say by letter to the newspapers, something that has come into their possession, or the substance of something to which they have had access because of their position on such a commission, then the Chief Justice will have committed an offence and the Bishop to whom I referred will have committed an offence. The commission of the offence is clear.

The prosecution is a different matter. My memory picks up two occasions. It may be asked why would the Chief Justice or the Bishop who is a member of the commission want to communicate to the public or to anybody else the substance of some information to which they have had access because of their membership of the commission? The present Bishop of Galway was made chairman years ago of a commission which dealt with vocational organisation. I suppose it was one of the best manned commissions this State has ever had. They deliberated over many years and produced a tremendous volume which indicated a great deal of interested and devoted work and, many people thought, a number of very sound suggestions.

The report did not please the Government of the day. The present Taoiseach when questioned about delays in bringing in some of the recommendations characterised the document as a slovenly document. The Bishop was naturally moved to make some comment on that. The discussions were not really made public and a considerable amount of information was contained in minutes. There was a considerable inquiry into the way in which certain people took advantage of the tariff movement; the way in which they had worked particularly for their own benefit had been brought out in a number of pieces of evidence which were brought before the commission and published in minutes. All the documents that came before the commission were not published in the recorded minutes. Certain matters were regarded as being of a confidential nature in the sense that they were rather revealing with regard to say a business in such a way that it might be important to a competitor to get the information.

That was kept secret as far as the published minutes were concerned but they were recorded and there is no doubt that the proper defence against this attack of slovenliness, if the particular member of the hierarchy bothered his head about the remark, would have included a number of references to the type of documentary evidence he had before him.

In the case of a person who is of sufficient repute to be made a member of a commission to inquire into certain things, and more particularly if he is of such repute to be made chairman of such a commission, is it not the height of madness to declare that person has been guilty of an offence because he communicates to the public by means of letter the substance of something contained in a memorandum to which that person had access as a member of the commission? This definition brings him in because he has been appointed to a commission.

I want to refer to another matter which is historically well known. It was better known some years ago, but matters like this are dimmed by the passage of time. There was another commission set up to inquire into the work of the old national health insurance project. The then Bishop of Clonfert was made chairman of that commission. That commission reported in terms that were very adverse to the particular type of national health insurance being run at present. As might be expected, the present Minister for Health was a member of the Government whose administration was brought under critical scrutiny in this particular commission's report. As might be expected, he, of course, jumped into the fray right away. Quite a controversy developed over that, which led to the late Dr. Dignan publishing a pamphlet in which he set out his views on the national health insurance programme and his attitude toward an amendment of that. He undoubtedly made use of and communicated to the public the substance, if not the actual record, of certain information to which he had access because he was a member of that commission.

Again is it reasonable to seek, as is done in this proposed legislation, that the communication of such information, without any hint of its being prejudicial to the interests of the State— merely the fact that a person lets another person know, not by communicating the official document or information itself but by giving him the substance of it without question of what he has done being prejudicial to the interests of the State—is it reasonable to seek that that man can be found guilty of an offence? These are some of the reasons why I want at least to clear out that part of the Act. As far as one part of the proposed Act is concerned, where it deals with the safety and preservation of the State, nobody can make much objection to it.

There are a few points I want to attend to because I think they are pressed too far and too much power is being taken as against whatever emergency might be thought likely to occur. I am not thinking of information prejudicial to the safety or preservation of the State, but simply the communication of official information without its being information which would affect the interests of the State let alone the safety or preservation of it.

I think the Act goes too far. It could be called an administrator's dream. It certainly is a citizen's nightmare. The matter is pressed far too far in the circumstances which can be contemplated. I want to get rid of one excrescence. If you must, have it kept to civil servants, guards and teachers. They are definitely confined. They are public servants and they are all tied by certain declarations with regard to the non-communication of official information. Be it for good or ill, they are all tied. But this is extended to bring in employment under commissions or tribunals of inquiry. I have said already that so far as the people who generally officiate as secretaries, notetakers and so on at these commissions, members of the Civil Service are concerned, it is not such a big extension, although I hate to see its being done. But I think it is madness and I do not see any argument for putting the burden of this on people who are appointed to a commission of inquiry.

I take my example again and come back to the Chief Justice, who is chairman of the Commission on Higher Education. One of the members of the Hierarchy of the Catholic Church is a prominent member of that Commission. If they tell anybody anything to which they have had access because they were members of the Commission, these people are guilty of an offence. I said at an earlier stage of this legislation that it seems to be following the lines of matters that have been very seriously discussed in England with regard to those situations in which the State claims privilege as regards the production of evidence. In England, the judicial system has worked to this point: that where the claim is made that the bulk of the information would be prejudicial to the safety of the State or the preservation of the State, the courts accepted without demur— or at least they used to until the matter was pressed in an extravagant way—the statement of a responsible member of the Government that whatever was in issue was or might be harmful to the safety of the State.

That, of course, has gone to extremes. It started off with the case where a submarine was sunk and a lot of people lost their lives. An action was taken by the dependants of some of the officers that they should be remunerated, the claim being made that there had been negligence in the construction and operation of the submarine. Notice was served asking for the production of certain documents in regard to the building of the submarine. Particularly as the 1939 War was pending, the claim was made that the production of the documents would give away secrets of submarine construction, and that was something in which the safety of the State was concerned.

That was accepted without demur. That was pushed and pushed and pushed until in England the courts have occasionally said: "We feel bound by what has happened before but must have regard to the old canon with regard to the law that justice not merely be done but should be seen to be done." That certainly was not the case in these privilege questions when they were pressed to the extremes to which they have been in England.

There is quite a volume of opinion growing in England—there have been questions and debates in Parliament— and this division of thought has been shown: people will accept the preservation of the State and say "Do more or less what you like, but we think you have extended that on those grounds to many matters that should not come under it at all because what is involved is not the safety of the State but the secrecy of departmental records." While they have felt bound by precedent, they have kicked more frequently and more violently against this type of thing. This is the line of thought that will not accept a global statement by a Minister of the British Government that a whole mass of documents is privileged. They demand that he examines each one and is able to say with regard to each one: "I have had my attention directed to it and I think it is prejudicial."

In any event they at least—and this is from letters in English newspapers and debates in the House of Commons —keep the question clear that it is the Civil Service proper and the Army as well that are protected in this way by the plea of privilege. A member of the Civil Service in England sending up minutes, or minutes going up with various Civil Service signatures on them are also to be brought in because otherwise the civil servant would not write as freely or advise in such a valuable way if he thought at some time or other what he was advising might come into the public light. The distinction has been made, and it is a peculiar thing in England, that the nationalised boards have not that protection. A Minister in England dealing with anything like fuel or his civil servants are covered and the information sent him is confidential but the Chairman of the National Coal Board or his servants are not protected. If he comes into court, he cannot claim that sort of protection.

As well as extending over this matter, under this Bill not merely do people employed in various types of enterprises who might be described as people remunerated by moneys provided by the Oireachtas come in, but others who are appointed on the Boards are brought in. In the later stages we have dragged in contracts made, and the contracts are made either by an outsider and the Minister or between a State authority and the Minister. A "State authority" brings in the Attorney General, the Comptroller and Auditor General, the Revenue Commissioners, the Commissioners of Public Works and, of course, the Irish Land Commission.

I shall be dealing with that at a later stage but it is appropriate now to show the widening of the whole matter. People who enter into contracts, and there are many contracts that have to be entered into by the Board of Works, the employees of people who are in contractual relation with the Board of Works, all fall inside this scope of this piece of legislation and if they communicate any information they have got in such a way as is expressed to be confidential, whether the employee knows about that or not, they are guilty of an offence.

I should have thought one could recognise the necessity for carrying on the old official Secrets Act and dressing it up in modern form but to make this wide extension goes far beyond anything required either by the safety or the interests of the State.

I need not be reminded—because I know—of the old dilemma that faces everybody dealing with this type of legislation probably best expressed by Lincoln, President of the United States years ago, when he said that it was a grave question as to whether a Government not too strong for the liberties of the subject could be strong enough to preserve its existence in a great emergency. I do not mind, with few exceptions, what is done in a great emergency where the safety and preservation of the State are at stake but it is a different matter where it is a question of passing out some document or the substance or gist of a document and that is to be made into an offence because the Minister stamps it and says: "No matter what you say, that is secret and confidential and my certificate goes. The courts cannot inquire into it."

The people who serve on these commissions tell somebody something or publish a note about something and the Minister says: "That is secret and confidential. You should not have done it." That makes it an offence. Is there any justification for that? We have lived under the Official Secrets Acts since they were established and there was only one prosecution and that failed disgracefully, with the comment from the judge that the case should never have been brought. That is the background of all this. Yet, into something dealing with the security of the State, we dig in a whole lot of other things in regard to people who go on commissions so that they are theoretically guilty of an offence.

I suppose the answer will be made that no offence can be prosecuted without the consent of the Attorney General but in these latter days does anybody think that is a good safeguard? We have heard the Minister himself speak of the way prosecutions are brought. In certain cases, the police make the prosecution themselves. In other cases, they must go to the Attorney General but do not forget the position in which the Attorney General is in regard to dealing with State matters. It is a very weak position. The Attorney General is not a judge. He has not the fortifications the judges have. There is no question of his getting a term of office, even though it may be only for a number of years, which cannot be terminated except on grounds of incapacity or misbehaviour. The Attorney General is a creature of the Taoiseach who appoints him and the Taoiseach is entitled at any time to demand his resignation and take his office from him.

This proposed Act takes away all the protection of the courts which are ousted in many ways. The Minister certifies certain things and in the background then is the Attorney General who has to consent. The prosecution must be brought either by the Attorney General—which is quite a good safeguard—or with his consent. We give our judges a position and fortify them in many ways because we want them to be independent. We take the fortifications away from the Attorney General who is in an entirely different position. Yet that is the bulwark of safety for a person who goes on a commission and wants to tell the public of some information he got because he was chairman or a member of a commission of inquiry.

Mr. M.J. O'Higgins

I should like very briefly to support the remarks of Deputy McGilligan on this amendment. Even at this late stage, the Minister would be wise to withdraw this Bill and bring it in again in another form whereby he avoids mixing up questions of the safety and security of the State with what we might call more normal questions of information of a secret or confidential nature and which have nothing to do with the security and safety of the State.

This amendment deals with the position of people who are appointed to any commission, committees or tribunal set up by the Government or by a Minister and, under the terms of the definition of public office contained in Section 2 of the Bill of such appointees, their liability to incur the penalties which are provided in this Act for disclosure of what is regarded as official or secret information. The real objection to that rests on the fact that the Minister has steadfastly refused to consider changing subsection (3) of Section 2 which enables any member of the Government simply by certificate to decide and to enforce on the courts that decision as to what is or is not secret or official information. Under this legislation, all that is necessary is that a Minister gives a certificate that a particular matter is to be regarded as confidential and whether it is a factual decision or not, whether it is a right decision or not, under the Bill as it stands, it must be accepted as conclusive evidence by the courts. No argument, no disputes are allowed in the matter. The decision is taken out of the hands of the courts into the hands of the Minister.

That is the very serious aspect of this Bill and people who are good enough and civic-minded enough to serve on commissions set up by the Government will now be faced with the possibility that if they disclose any information, verbally or otherwise, that comes into their hands as members of a commission, they may face a fine of £100 or six months in jail, depending on whether the Minister gives a certificate that the information is to be regarded as confidential.

Deputy McGilligan referred to the fact that the only safeguard in the Bill—and that it was probably what the Minister would rely on—is the fact that the Bill states that proceedings cannot be commenced except by or with the consent of the Attorney General. I pointed out, as did other Deputies, when we were dealing with this section of the Bill, that that safeguard is a very weak one indeed because the next subsection in the Bill provides that even without the consent of the Attorney General, a person may be arrested and lodged in jail and kept in jail, and that all that can be done without the consent of the Attorney General. Under this Bill, a person could be kept in jail virtually indefinitely without any charge being preferred against him. So that I do not regard the consent of the Attorney General, whittled down as it is by the next following subsection in the Bill, to be any very great safeguard at all.

I think this is a very, very dangerous Bill. I will agree with the Minister and I will agree with any Deputy that so long as the Bill is properly operated it may work and it may work without unduly prejudicing the position of citizens but if this Bill is worked unfairly by this Government or by any other Government, it is going to be a very dangerous Bill which certainly will put in jeopardy the safety and security, not of the State, but of the citizens of the State.

General MacEoin

Might I appeal to the Minister to reconsider this whole question? Listening to the careful submissions made by Deputy McGilligan and other legal people in the Dáil, any reasonable layman would be convinced of the dangers inherent in this Bill. Let me be quite clear. I am not going to charge the Minister or the Fianna Fáil Government with doing anything wrong under this Bill but they are only human and, as sure as there are little apples, they will move out and another Government will move in and another Government will follow that. What then? What will be the position then if, for any reason, a Government are elected as a result of some slick operation? What could it not do with the ordinary citizen?

Let me remind you, Sir, that the thing that annoys me about this is that there are a large number of documents in the Irish Military History Bureau which are not to be opened for 50 years from the date of the setting up of the bureau and they are all marked "Secret and Confidential" but there are in the possession of the people who wrote them copies which are also marked "Secret and Confidential," and although, in theory, the writer is free to use them, if at any time an unscrupulous Minister or an unscrupulous Government thought something was going to be published which was detrimental to them, all they have to do is to certify that it is secret and confidential. The safety of the State does not arise at all. An embarrassment of a Government perhaps might arise or an embarrassment of a Minister. We are all human and everybody knows it is very embarrassing if something is published that we would prefer not to be published. The extent to which documents are stamped "Secret and Confidential" running through Government Departments is, in my opinion, completely unnecessary. In regard to a great number of the documents, it would not matter if they were put on the fairgreen and published. There is this phobia of stamping everything with a red stamp "Secret and Confidential." Somebody does not want anybody else to know about it, even in another Department, until it gets to the Government, or something like that.

In regard to this question of a person being appointed to a commission or anything like that, Deputy McGilligan has pointed out how wroth the Government of that day could be with such a prominent supporter of the then Government as Dr. Dignan was, that he was publicly dispossessed and, if the Minister of the day had had the power sought in this Bill, as sure as you are a foot high, he would have prosecuted him and it would have been God's charity because it would have shown how silly but now brutal the measure could be. But there was more than that. There was a civil servant involved and he was seriously warned and he had to get out of certain voluntary organisations that he was in where he was rendering service of an important nature in the interests of Catholic social work. He was ordered off by the then Minister and he had to retire and get out of every one of them because it was alleged by the then Minister that he had conveyed confidential information that he got in the discharge of his office.

I am not going to refer again to some of the matters that Deputy McGilligan has referred to but all I want to do is to say to the Minister that as a responsible person and charged with heavy responsibility, he should not take undue power for himself or for any future Government.

Mr. Haughey

I am afraid I cannot see my way to accepting this amendment. I feel that the three Deputies opposite who have spoken are exaggerating the whole matter out of all proportion. To me it seems quite clear that it is desirable to include within the ambit of the phrase "public office" a person who is appointed to a commission, committee or tribunal appointed by the Government or by a particular Minister. I want to point out that the inclusion is only in regard to secret or confidential information.

Mr. M.J. O'Higgins

But what is "secret or confidential information"? What is so declared to be by a Minister?

Mr. Haughey

That is a separate argument.

Mr. McGilligan

That is the argument.

Mr. Haughey

We will come to that later. We have already dealt with it fully on Committee but we can deal with it again, if necessary. The net point here is whether or not people who are appointed to these bodies should be in a position to disclose secret or confidential information. I think it is entirely desirable that they should not be permitted to disclose such information. They can disclose everything else.

Mr. M.J. O'Higgins

We would agree with you if you would leave it to the courts to decide what is secret and confidential.

Mr. Haughey

The courts are not in as good a position to take that decision as the Minister involved. I think this will actually help the work of these commissions and tribunals because all the persons who would be coming before such bodies to submit evidence or to help them with statistics, will be able to do so and will feel free to do so when they know that the secret or confidential information which they will be giving to these committees or tribunals will not subsequently be disclosed to anybody else.

Consider the position, for instance, of a Government Department, which is asked to give statistics, or information, to such a commission or tribunal. If that Department knows that there is no restriction on the individual members of that commission or tribunal subsequently disclosing to the world at large the most secret or confidential information, what position will such a Department be in? The officials would be very reluctant to disclose any information to such a body. So would an ordinary witness. I think, therefore, that this provision will actually facilitate the working of these various bodies. I think it is entirely unacceptable to suggest that a person who is appointed to one of these bodies should be at liberty to disclose confidential information which comes to him as a result of his appointment.

Deputy McGilligan asked why are we doing this. I think the provision is completely defensible. In the case of information which is at the disposal of a Government Department, or of a particular Minister, such information normally concerns other persons, private citizens or groups of private citizens. The Minister is merely the custodian of that information. He is a trustee. All of us private citizens are compelled by law from time to time to disclose to Government Departments all sorts of confidential information about ourselves and our affairs. We give that information to these Government Departments, and to particular Ministers, and we are then entitled to assume that that information will be protected. That is the issue here. The issue is whether or not information which a Government Department has about other citizens as trustee, or guardian, or custodian of the public good is to be published or distributed or broadcast to all sorts of people who are not entitled to get it. That is the principle on which I defend this particular provision.

Mr. McGilligan

That, of course, is not contained in any part of this Bill. The argument runs on two shockingly bad points. One, it is mainly information which will be in the possession of Government Departments which will be put before these commissions. That is not the case at all. Take a commission dealing with university education. I do not believe that more than a fiftieth part of the information going before that commission will come from Government Departments. If it does come from Government Departments, then it will come from the Department of Education or the Department of Finance, the former with regard to the way in which university education fits into the scheme of things, and the latter with regard to the moneys that will be spent from time to time. What confidential matter is there in that?

Mr. Haughey

If it is not official it is not relevant at all.

Mr. M.J. O'Higgins

How are we to know what is relevant?

Mr. McGilligan

What will be prohibited from communication is what the Minister says is secret and confidential. That is why I asked before to have that phrase taken out. If it is taken out, then it is all right. I am a member of a commission and I am assailed in public for something that occurred, or some report I read, and I want to defend myself; I try to do so by means of documents which seem to me to establish the point of view I have taken before the commission. The Minister says: "That information is secret and confidential" and I cannot produce it; that is the greatest nonsense. If I do produce it, I am committing an offence. If this whole point were confined to Government Departments, or to information given to Government Departments, I might agree with the argument, although I think it is again a handicap that a person on a commission cannot comment on information obtained from a Government Department. I can think of the Department of Industry and Commerce, which may be getting information about one concern in circumstances in which people are playing, one against the other, for some concession in regard to a tariff, or something like that. I can well imagine that in those circumstances information in the possession of the Minister might disclose the secrets of another firm to the public or to rivals. I do not mind that information being protected, but this provision does not make any limitation.

Mr. Haughey

It says "official".

Mr. McGilligan

Where is the "official"?

Mr. Haughey

You have "official document " and "official information".

Mr. McGilligan

But what is the "official information"? Any article, any document, or information which is secret or confidential. There is no question of the word "official" having any effect there at all as against the Minister's certificate. The Minister's own definition destroys that argument.

Mr. M.J. O'Higgins

Does the Minister say the word "official" governs everything in subsection (3) of Section 2?

Mr. Haughey

No.

Mr. McGilligan

The phrase used here is "an official document". "Official document" is referred to only twice in the remainder of this legislation. To get the contrast, an official document would include a passport, official pass, permit, document of identity, certificate, licence, or other similar document; it also includes an endorsement. I take it as accepted that, when the phrase "other similar document" is used, we are governed by the ordinary rule of interpretation.

Mr. Haughey

May I explain? The official information definition indicates that it must come to the person by virtue of his office.

Mr. McGilligan

And the "office" is to be a member of a commission. That is nonsense. Let me come back to the official document. One could stand over that with one reservation. It includes several things, and then one comes to the general words "or other similar document". As I understand the code of interpretation used in our courts, these general words would have to be related to the special, particular words that precede them. Therefore, it would have to be a document similar to a passport, official pass, permit, document of identity, certificate, licence.

In any event it is the court which would decide that, because the court is not ruled out in this. If any question, therefore, arises with regard to an "official document", then it is something similar to the document specified; you have a court adjudication and that is all right. But, by contrast, you get "official information". I am not sure that I am absolutely correct in this, but I can only find the words "official document" referred to once afterwards. That is in Section 6:

A person shall not retain any official document or anything which constitutes or contains official information . . . .

There, even though it is included in the section, the whole force of the particularity of "official document" is completely destroyed by the fact that immediately afterwards there is the phrase added "or official information".

The argument apparently is that this section is only intended to cover things that come, say, to the hands of Government Departments because they may have some repercussions on other people who are engaged in some way in traffic with Government Departments. That is nowhere in the definition. Nowhere at all. The Minister is young in office, but surely he knows enough about life to realise that when commissions of inquiry are set up there are many more people who come before these commissions other than Government Departments. Independent people come before them. The whole value of a commission of inquiry is to bring to bear upon the closed circuit of a Government Department what people outside are thinking. It is business people, commercial folk, people interested in some type of institution that may be the subject of inquiry, who give the outside view, and that outside view is then put in contrast with whatever information the Government Department has.

The Minister's whole argument is weakened by two things. They are the two great flaws in this legislation. One is that the courts are ousted as far as this legislation can bring that about. The question of regarding something as secret or confidential, if left to the courts, would take a great deal of the harm out of this legislation. If the courts were able to say: "Nobody could consider that secret or confidential, no matter what a Minister says about it" that would be perfectly all right. But we have got to the point here that the Minister's certificate is conclusive and that takes away the whole of the argument of the courts.

The second flaw is that, as far as the official information is concerned, it is simply that a person shall not communicate it. It is made one of those absolute crimes. There is no question of mentality of any type to be established with regard to it. There is something that a Minister thinks is secret and confidential. You have to communicate that, the substance of that, to somebody else. If you do, then there is an offence.

Amendment put and declared lost.

Mr. McGilligan

I move amendment No. 2:

In page 4, line 16, after "not" to insert "in any manner prejudicial to the interests or to the safety or preservation of the State".

May I take amendments Nos. 2 and 4 together? They are the same except that they are applicable to different sections. I have talked about this before. So far as Part III of this legislation is concerned, communication of information to the prejudice of the safety or preservation of the State, with minor exceptions, I do not mind what is done as long as somebody establishes what is prejudicial to the safety or preservation of the State. I tried to get that by one simple amendment.

Let me come back to Part II. Part II deals with official information and official information means whatever the Minister says. Anything ludicrous may be declared to be secret and confidential. That cannot be questioned. The fact has to be established whether somebody got what is called secret and confidential information by virtue of some office he held. In those circumstances, there are two things—a person has communicated and a person has received.

I should like to bring the courts into this matter. There is a special point regarding Section 5. It is only in relation to special circumstances. I want to bring in the courts to say there must be evidence that the person has in any manner prejudicial to the interests of the safety or preservation of the State communicated something. That means that there will have to be some proof given by the State, not as to the person's intentions but as to the fact whether or not the communication of the document was, in the opinion of a judge, prejudicial to the interests of the State. I think there should be an onus on the people who are going to prosecute to say: "There is the document. It is marked. The Minister has said it is secret and confidential. That finishes that."

It is communicated. Is it in any way prejudicial to the interests of the State? You have the opinion of an independent judge on that matter. I think that is a safeguard which should be put into this Bill.

I argue more strongly in connection with Section 5. Section 5 has a wider fling than Section 4. Let us take the case of a person entering into contractual relations, say, with the Board of Works. Then if a person who is employed by the contractor in association with the Board of Works passes out any bit of information relating to the contract which is expressed in the contract to be confidential, then it is confidential. I think more particularly in connection with that, that you should have the onus of establishing whatever has happened and say: "Very good; the court will decide whether there is anything prejudicial likely to occur to the interests of the State."

We were told that the object of this section is entirely new; that the object was to meet the situation which might arise if examination papers were disclosed to a master of a school and he made use of the disclosure to instruct a class taught by him as to the questions that were to be asked. The pupils would get a good result. We were told that there was one case where that had happened or was supposed to have happened. I think there was only one case mentioned. In my whole experience, I have only heard the suggestion made once that examination papers were disclosed, examination papers which could be regarded as in any way tied on to this.

I ask myself the question: what about the pupils in such a case? If people, who have got hold of an examination paper for the purpose of printing it, disclose that to a teacher in some school, I have no doubt there ought to be some punishment inflicted. A more serious offender would be the master who took advantage of the paper offered to him if he made use of that in order to instruct pupils very definitely on the points which were going to arise in an examination paper. I think that man is guilty of an offence.

What about the pupils? What about the parents of the pupils? The boys are called in and told that the master has certain tips for an examination. They do not know where he has got the tips but they go to an examination room a few days later and find themselves stared in the face with questions they have already been tutored in. They must then get suspicious. Let us suppose that in between they have been at home and have told their parents that they had a special class and were told to make up whatever information was available to them in certain texts on certain points. The parents should be more alert to what is happening than the youngsters themselves. Are the parents aiding and abetting in this whole matter? Are they to be guilty of an offence although they could prove they had no mens rea, to use the technical term in these matters? So far as I can see, the legislation even covers this.

Let us suppose that an examiner gives a series of questions he has intended to put to a certain group of pupils for a certain examination and the pupils get that information before the event. There is some complicity involved there. Let us suppose that the examination has passed and the examiner decides to publish the questions that he put. There are occasions when boards of examiners meet. Four or five may meet and one person wants to put questions on certain things. Is he entitled, if he publishes afterwards the questions he would have put, except that he was forbidden to do so by his colleagues, to say that seven questions were set and that they said to him that he could set only two, instead of any more, along his lines? Is it an offence to publish afterwards the documents about which he had entered into conflict with the Department of Education or whatever the Department might be? Can he say afterwards how he would adjudicate on the questions?

The whole thing could be resolved by getting a chance to go before a court and saying, in effect: "Whatever I did was in no way prejudicial to the interests of the State." If the court says it was prejudicial then he is for it. If the court agrees with him then I do not think the Government or the Department have any right to assert their right to say, in effect: "No matter what the court said, or would say, we think this is an offence and we want to get a man punished for it."

Mr. Haughey

I find myself in the position of being unable to accept either of these two amendments. Deputy McGilligan has explained clearly the purpose of the amendments. They differ very little from the amendment which he put down on Section 4 on Committee Stage, except that he has now incorporated the words "to the interests of the State" in addition to the words "the safety or preservation of the State". That does not really affect my basic thesis about this whole matter.

I think it is improper that civil servants or other public servants—the Army, Garda, and so on—should be able to disclose secret and confidential information which has come to them in the course of their duties as public servants. I think administrative chaos would result if we were to accept that proposition. As I have already explained on an earlier amendment, the basis of my position is that the State is the repository of a great deal of information about all of us. It is not right that State servants or anybody else should be enabled to disclose that information as they think fit.

The incorporation of the words "to the interests of the State" does not really affect the position at all, because the information which could be disclosed might not affect the interests or safety or preservation of the State but it might vitally affect the interests and welfare of a citizen or firm or group.

Mr. M.J. O'Higgins

Would the Minister consider putting that in, as well—the interests of the State or any citizen or the safety or preservation of the State?

Mr. Haughey

That is what I have achieved.

Mr. M.J. O'Higgins

You have made up a positive absolute declaration and if anything is done it is a breach of it and there is no modification at all.

Mr. Haughey

I agree—from the point of view of the ordinary citizen who fills in his income tax return——

Mr. M.J. O'Higgins

Take the position where it does not affect the interests, the safety or the preservation of the State or the interests of an individual. Does the Minister think it right that in those circumstances it should be an offence——

Mr. Haughey

If we could isolate such a circumstance I think we could leave it out. I do not think that we can isolate such a circumstance. As mentioned by Deputy McGilligan, I am concerned not alone that justice will be done but that justice will be seen to be done.

It is important that the individual citizen should know, and be secure in the knowledge, that any information he discloses to a Government Department about himself is safe in the Department, even though his vital interests might not be affected by its disclosure; that it will not be disclosed irresponsibly or recklessly by any public servant. I think it would vitiate the whole purpose of Sections 4 and 5 to incorporate in them the words suggested by the Deputy.

Mr. M.J. O'Higgins

The whole purpose of the Bill, which is the Official Secrets Bill, concerns the interests of the State.

Mr. McGilligan

The argument again is on the basis of Government Departments. There is no mention of them in this. There is no limitation on them. I would not mind limitation to a body of citizens but take a Government inquiry which they declare to be secret and confidential. One would immediately say, if a case were brought, that to disclose information prejudicial to another person is I think prejudicial to the interests of the State. That has nothing to do with Government Departments. A person shall not communicate confidential information. I want to take "a person". Consider the Chief Justice, who is Chairman of the Commission on Higher Education. He is forbidden to communicate to anybody anything to which he has access as a member of that Commission.

The three University Colleges, if they have not already done so, will come before that Commission and will give information. They want that information, I believe, disclosed. So far from thinking that the matter disclosed would prejudice them, they want their case made clear. Their case may be made clear by the Report of the Commission—but it may not.

Mr. Haughey

They could make it clear now.

Mr. McGilligan

How?

Mr. Haughey

The University could publish it.

Mr. McGilligan

Certainly, they could before the Commission. Say a member of the Commission feels that a member of the college has made a good case and that the Commission report adversely. He wants to make the case—say a minority report. He is not allowed to communicate anything which comes before him in that commission——

Mr. Haughey

——which is secret or confidential——

Mr. McGilligan

Secret or confidential is only what somebody says is secret or confidential. Once that certificate goes "confidential information" is there and the communication of that, without any prejudicial effect, might have a beneficial effect.

Mr. Haughey

The University can disclose it themselves.

Mr. McGilligan

How can they?

Mr. Haughey

The Deputy's suggestion is that they must submit it to the Commission and get an individual member of that Commission to disclose it.

Mr. McGilligan

No. Supposing a person signed a recommendation in favour of one of the colleges and it is turned down and he feels it is wrong and controversy in the Press starts about it. Is that man to be prohibited from saying, in effect: "I got the following information from a report of one of the University Colleges and I believe in it"? If he puts it out, he is guilty of an offence. Is that not right?

Mr. Haughey

No. If he has some secret or confidential information——

Mr. M.J. O'Higgins

Take the decisions of the Commission or why he went one way or another. Is he not at liberty to say, in effect: "I took my decision because of A, B, C, D, which I was told as a member of the Commission?"

Mr. Haughey

This only applies to secret or confidential information.

Mr. McGilligan

It is not what anybody on a jury would say but what the Minister says.

Mr. Haughey

The Minister is a pretty responsible institution.

Mr. McGilligan

Sometimes they are. We shall see about that at Question Time. We shall see about some of them in certain critical matters.

Mr. Haughey

I issue a cordial invitation to the Deputy to participate.

Mr. McGilligan

The Minister might set the dogs on me. I would rather not. This gets back to the old argument that you must trust the Minister to do everything. Parliament is for the purpose of putting questions to Ministers. The courts are for the purpose of correcting them.

This legislation provides simply for the Minister to say that something is secret and confidential. Say a man is a member of a commission and certain information comes to him in that way. He dare not publish it. From the Minister's argument I can realise the whole background to this. The type of administrator implied in this measure is mainly to be found in the Civil Service but some Ministers become enthused with the point of view I have mentioned. This first and foremost deals with administrators. Courts are ousted from deciding these matters and my simple request is that the courts be brought in.

Amendment declared lost.

Mr. Haughey

I move amendment No. 3:

In page 4, line 23, after "where" to insert "he is aware or has reasonable grounds for believing that".

This amendment has been put down by me partly as a result of the discussion on the Committee Stage and partly as a result of representations which have been made to me since then by the Council of the National Union of Journalists. That Council made the case that the holder of a public office might pass on to a journalist information which might be regarded as official information within the meaning of the Bill without being authorised to do so or without its being in the course of his ordinary official duties. They made the point that even where a journalist, and perhaps even the official concerned, was under the impression that the information was being communicated quite properly to the journalist, the journalist would be guilty of an offence under this subsection, in that it would be no defence for him to show that he did not know that he had obtained the information irregularly. The Council said there would appear to be no great difficulty about information circulated by the Government Information Bureau. Clearly, officials in the Government Information Bureau are duly authorised to pass on official information and they do so in accordance with their duties.

For my own part, I think the possibility envisaged by the Council of the National Union of Journalists is extremely remote. First of all, as I mentioned on Committee Stage, the prosecution would have to prove that the information was communicated in contravention of subsection (1). Secondly, civil servants have specific instructions not to make unauthorised communications directly or indirectly on matters which come within their knowledge in the course of their official work. They know that the Government Information Bureau is the recognised channel for the dissemination of all authorised information to the Press. However, in deference to the views of the Council, I am moving this amendment. Deputies will see that it is proposed to make subsection (3) of Section 4 apply only where the person obtaining the information is aware, or has reasonable grounds for believing, that the communication of such information would be in contravention of subsection (1).

Mr. M.J. O'Higgins

The Minister's amendment shows that he is beginning to realise the weakness of having this section worded in the absolute and categorical manner in which it has been worded. The amendment as moved is an improvement but it also should establish the arguments the Minister made and should establish also the necessity for an amendment of subsection (1) of Section 4 on the same lines—that a person shall not communicate any information which he knows, or has reasonable grounds for believing, is confidential. For the sake of conformity if nothing else, the Minister should provide in this amendment a somewhat similar provision in subsection (1).

Amendment agreed to.

Amendment No. 4 not moved.

Mr. Haughey

I move amendment No. 5:

In page 5, line 5, after "control" to insert "and is specified or indicated in such directions".

I think we can take amendments Nos. 5 and 6 together. The purpose of these two amendments is to remove any doubts there may be as to whether the directions which are given for the return of official documents should specifically refer to the documents concerned. I have examined subsections (2) and (3) of Section 6 again and I believe that it would not be possible to sustain a prosecution for failure to return these documents in accordance with the directions given under these subsections unless the documents were specified or indicated or otherwise sufficiently identified. However, it is desirable to remove any doubts there may be about the matter by amending the two subsections along the lines indicated so as to make it clear that the direction should specify or indicate——

Mr. McGilligan

Why indicate?

Mr. Haughey

"Indicate" incorporates a notion of a more general description.

Mr. McGilligan

So general that it ignores the whole effect of "specifying".

Mr. M.J. O'Higgins

Will it be left to the courts to decide whether an indication is given or not?

Mr. Haughey

Yes.

Amendment agreed to.

Mr. Haughey

I move amendment No. 6 :—

In page 5, line 7, after "documents" to insert "specified or indicated in such directions".

Amendment agreed to.

Mr. Haughey

I move amendment No. 7 :—

In page 5, lines 15 and 16, to delete "without lawful authority" and insert "without lawful authority or excuse".

Amendment agreed to.

Mr. Haughey

I move amendment No. 8 :—

In page 6, line 20, after "control" to insert "without lawful authority or excuse,".

Amendment agreed to.

Mr. Haughey

I move amendment No. 9 :—

In page 5, lines 22 and 23, to delete "without lawful authority" and insert "without lawful authority or excuse".

Amendment agreed to.

Mr. Haughey

I move amendment No. 10:—

In page 5, line 30, to delete "unlawfully" and insert "without lawful authority or excuse".

Amendment agreed to.

Mr. Haughey

I move amendment No. 11:—

In page 5, line 32, to delete "without lawful authority or excuse" and, in line 33, after "control" to insert "without lawful authority or excuse".

Amendment agreed to.

Mr. McGilligan

I move amendment No. 12:—

In page 6, line 7, after "which" to insert "in the opinion of the Court".

This is an important matter. I have said already I do not mind very much what is being done in this part of the legislation in respect to the safety of the State and public order. My amendment is rather a probing one. It sets out that the prejudice involved here has to be against the interest of the safety and preservation of the State. This would have to be established. There are certain exemptions to that. Information in relation to a variety of things is specified. One could not object, for instance, to matters in regard to the numbers in the Army or to certain things in relation to the operations of the Defence Forces. Then we come to the subsection which says:

Any other matter whatsoever information as to which would or might be prejudicial to the safety or preservation of the State.

Who is going to decide that?

Mr. Haughey

The courts.

Mr. McGilligan

I want to put in here the words "in the opinion of the Court".

Mr. Haughey

Not necessary.

Mr. McGilligan

We want the thing established. I want to get the phrase in the Bill. It is only right it should be a court decision. If the courts are to decide, I want to have it put in the Bill. It is no use our saying the interpretation was implied here in this debate. It must be written into the Bill in order to have full effect.

Mr. M.J. O'Higgins

Will the Dáil rise immediately after Questions or will we have an opportunity later to-day to continue the debate on this measure?

The Taoiseach

It is proposed to rise immediately after Questions and to resume this debate on Tuesday next, November 6th, 1962.

Debate adjourned.