asked the Minister for Justice if it is his intention to introduce legislation to bring the Official Secrets Act, 1963 into line with developments and practices in most other European countries.
2.
Ceisteanna—Questions. Oral Answers. - Official Secrets Act, 1963.
1.
asked the Minister for Justice if he is satisfied as to the adequacy of the Official Secrets Act, 1963, in particular section 4 subsection (1); and whether the Government consider that an urgent review of this clause is now necessary.
3.
asked the Minister for Justice whether in view of the recent English court decision in the case against Mr. Clive Ponting, he considers that a review of the Official Secrets Act, 1963, is warranted; and if he will make a statement on the matter.
Limerick-East): I propose to take Questions Nos. 1 to 3, inclusive, together.
For reasons which have been explained in this House on a number of occasions already I could not undertake to indicate, by way of reply to parliamentary questions, what legislative proposals I might have in a particular area. Any proposals that I may have in relation to the subject matter of these questions will be announced in the ordinary way in due course.
Will the Minister accept that the Act, as it operates at present, is excessively vague and does not adequately differentiate between matters which are genuine official secrets and matters where there is no need whatever for secrecy? Will he agree that the overall effect of the Act is to inhibit officials from releasing information very often for which there is no need for secrecy and that it can also prevent access by the public to information? In view of this, and of the general liberalisation of these laws in many European countries in recent years, will the Minister undertake to look at the matter in the near future?
(Limerick East): The law is contained in the Official Secrets Act, 1963. That Act in the main was a consolidation of efforts; in effect, restating the then existing law contained in the Official Secrets Acts of 1911 and 1920. The Act creates certain offences in relation to two principal matters: (a) the acts prejudicial to the safety and preservation of the State and (b) offences against official secrecy. I am sure that the questions have been prompted by a number of incidents but probably in particular by the trial in February, 1985 of Mr. Clive Ponting, the British civil servant who was acquitted by a jury of breaching section 2 of the British Official Secrets Act, 1911 by leaking documents about the sinking of the General Belgrano to an Opposition MP. Section 2 of the British Official Secrets Act, 1911 is similar in substance to section 4(1) of our Official Secrets Act, 1963. I am sure Deputies are aware that there have been calls for the repeal of section 2 of the British Act on the grounds that the scope is too wide, the point Deputy Manning has made about section 4(1) of our Official Secrets Act which is, in effect, the same thing. The demand has been made in Britain because the section catches all official documents and information whatever their importance or the original source. It is also argued and debated that it promotes excessive secrecy in central and local government. There have been calls to amend the law to give an accused person a defence to a prosecution under the Act if he could establish that he acted in good faith and the conduct of which he is accused was in the public interest. Public pressure for the repeal of section 2 of the British Act has increased as a result of the Ponting case and I presume there is a carry-over effect in regard to section 4(1) of our Official Secrets Act. The Deputy will be aware from what I have said that the matter has been given consideration in my Department but I am not prepared, during Question Time, to give commitments to forthcoming legislation.
Is the Minister serious in telling the House that he is not prepared to tell us whether he is proposing to make a change in the legislation? Is he aware that section 4 of our Act, as he stated, is identical to the British 1911 Act? Is the Minister aware that the central point in the Ponting case was that despite a direction from the judge the jury acquitted Mr. Ponting because he drew a distinction between his duty and loyalty to the State and his duty and loyalty to the Government of the day? Will the Minister consider amending section 4 of our 1963 Act to make it clear that one's duty is to the State and not necessarily to the Government of the day? That was the central point in the Ponting case but, so far, the Minister has not dealt with it.
(Limerick East): My position is the general one adopted by Ministers, that one does not give commitments to legislation during parliamentary questions. One does not indicate by way of reply to a parliamentary question what legislative proposals a Minister has and I am sticking to that precedent. Having said that, I am quite prepared to discuss the issues that have been raised.
Not at Question Time, I hope.
(Limerick East): In reply to the points raised and within the context of the overall answer I gave initially. There is a lot of merit and accuracy in what Deputy Brennan has said. An important legal aspect of a matter that arose in the Ponting case related to the correct interpretation of the phrase, “in the interests of the State”.
That is also in our Act.
(Limerick East): It is exactly the same. Our 1963 Act is a consolidation of Acts which existed before the foundation of the State. In effect, it is the same legislation that was brought in and consolidated. Section 4(1) of our Act is the same as section 2 of their Act. The provision which is common to the two Acts except from being an offence the disclosure of official information when there is a duty to communicate in the interests of the State. As the Deputy has pointed out, the judge in the Ponting case implied that the phrase should be construed as meaning the interests of the Government of the day whereas the contrary legal argument was to the effect that it should be construed as meaning in the interests of the Crown and Parliament or, as we would say, in the national interest rather than in the interest of the Government. It is clear from the answers I have given that officials in my Department have seriously noted the Ponting case and know that the jury found differently from the advice of the judge. I am not prepared during parliamentary questions to give a commitment that we are going to change legislation but if I am going to bring in an amendment it will be announced in the usual way.
Will the Minister, in his review of the legislation, give attention to making a distinction between the State and the Government? I accept that the Minister has said he will not give that commitment today but I should like to know if he will give attention to altering the words "State" and "Government" and making it quite clear that there is a distinction?
(Limerick East): It is clear from what I have been saying that that point already got attention in my Department. It is also worth remarking that an official examination in Britain by the Franks Committee in 1972 recommended the replacement of section 2 of the Official Secrets Act, 1911 with a new official information Act which would provide criminal sanctions for protection of that official information which is most important to protect, was the phrase they used.
Will the Minister explain what he means by saying that the matter is being seriously noted by his Department and is under examination? Am I to understand from what the Minister has said that the examination of the matter by Department officials has been completed?
(Limerick East): No, it is not complete. A case was taken here under the Official Secrets Act of which Deputies are aware and later there was the Ponting case and, obviously, officials in my Department kept in close touch with developments in those cases. They did the necessary research but that work is not complete. I am not prepared to announce an intention of legislating at Question Time.
May I put a final supplementary?
It would not be unreasonable to say that we have dealt reasonably well with these questions and there is no point in pursuing the matter further.
Will the Chair permit me to ask one supplementary question?
Yes.
The Minister has given a comprehensive reply but I should like to know if it is right to assume that at some stage he will be bringing before the House legislative proposals in relation to the subject matter of the questions? Is the Minister in a position to give a timescale in regard to this? Many people share the views expressed by the Deputies who asked supplementaries here today, and the country would like to know if the Minister has any intention of bringing these proposals before the House at an early date.
This could be a help. The Act allows the Minister to give a certificate of confidentiality and by virtue of the fact that the Minister declares something to be secret it is in fact secret. That is outdated and outmoded and protects the Government as opposed to the——
The Deputy is giving information as opposed to asking a question.
(Limerick East): Thank you, Deputy. In reply to Deputy Hyland, I am not prepared to give a commitment. All legislation falls under two heads: first is it necessary and, second where does it rank on the priority list? Since separate statistics for such offences were first registered and published in the Garda Commissioner's Report on Crime starting in 1976, there has only been one prosecution in 1984 under the Official Secrets Act. I am keeping this matter in mind and, if I intend legislating, I will announce it in the normal way.