Seanad Éireann debate -
Wednesday, 14 Nov 1962

Vol. 55 No. 16

Official Secrets Bill, 1962—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (Mr. Haughey)

The object of this Bill is to provide comprehensively for safeguarding official information, that is, of course, in so far as it is possible to do so by the provision of adequate penalties for unauthorised disclosure. The Bill will replace the Official Secrets Acts, 1911 and 1920, which, although adapted by an Adaptation Order made in 1928, are largely inappropriate in our present circumstances.

The deficiencies in the Acts were recognised during the emergency, when the necessary provisions were made by way of emergency powers orders. Since then, by the Defence Act, 1954, certain other provisions of the Acts have been replaced, such as those relating to trespassing on or photographing military installations. Obviously a major overhaul and re-enactment in modern form of the remaining provisions is long overdue. The present Bill is put forward therefore as containing the provisions which are necessary and appropriate for safeguarding, on the one hand, the ordinary type of confidential information which circulates among Government Departments and Government commissions and, on the other hand, information whose disclosure would be serious enough to be prejudicial to the safety or preservation of the State.

Part II of the Bill deals with the first class of information, that is, ordinary departmental information and confidential information in the possession of State contractors, where normally the safety of the State would not be involved. It also deals with certain offences relating to official dies, seals and stamps and the forgery of official documents.

Section 6, which is also in Part II, deals with the retention of official documents and articles and empowers a Minister or authorised officer to give directions for the return or disposal of official documents in cases where the persons in whose possession they are have no longer any right to retain them. Special provision is made for secret or confidential official documents retained by persons who formerly held office as Ministers or Parliamentary Secretaries. Subsection (3) of the section gives power to direct that these documents be returned but the power is limited to original documents and the power of giving directions may be exercised only by the Taoiseach.

Part III is concerned with the communication of information to the prejudice of the safety or preservation of the State. The main provision is contained in Section 9, which makes it an offence to obtain, record, communicate, publish or possess certain information relating to security matters in any manner prejudicial to the safety or preservation of the State. Senators will appreciate that it would be difficult in many cases to prove positively that a person accused of communicating information did so in this prejudicial manner. For this reason the provisions of Section 10, which are complementary to Section 9, make it prima facie evidence that a person charged under Section 9 has done the act in respect of which he is charged in a manner prejudicial to the safety or preservation of the State if he has been in communication with or has attempted to communicate with a foreign agent or with a member of an unlawful organisation.

I want to emphasise that Section 10 does not create an offence of itself and it allows the person accused an opportunity of proving that the communication he has had or is presumed to have had with a foreign agent or a member of an unlawful organisation is quite innocent. The prosecution will have to establish, first of all, that the act of communicating or obtaining or any other act mentioned in Section 9 was in fact done by the accused: Section 10 merely raises a presumption, in certain circumstances, that the accused, when he did the act, had a particular object in mind.

Section 12, which was amended as a result of representations made in the Dáil, enables proceedings for an offence under Section 9, or for an offence under Part II committed in a manner prejudicial to the safety or preservation of the State, to be held in camera. In its original form the section enabled the prosecution, on application, to have the entire proceedings—other than the verdict and sentence—heard in camera. The provision as it is now stands in the Bill limits the power to have an in camera hearing in two respects. First, it requires the prosecution to specify that the publication of any particular evidence to be given or any particular statement to be made would be prejudicial to the safety or preservation of the State; and secondly the section now provides that only the part of the hearing which is concerned with that particular evidence or statement must be in camera.

I did not find it possible to accede to a further request that the court should have power to direct that a hearing should be held in public not-withstanding the prosecution's contention that particular evidence, if disclosed, would be prejudicial to the safety of the State. I am firmly of opinion that the responsibility for deciding what evidence is or is not prejudicial to the safety of the State should be a matter for the Executive and not for the courts. It is the Executive, and not the courts, who are responsible for the national safety and it would be undesirable that such matters should be the subject of a public hearing. Moreover, the Executive very often have information which would make it clear that an innocent-looking document held an entirely different meaning for other persons.

Part IV of the Bill contains provisions about legal proceedings and other supplementary provisions. Senators will see that Section 13 distinguishes between ordinary offences under Part II and offences under Section 9 or any offence under Part II committed in a manner prejudicial to the safety or preservation of the State. In the ordinary Part II case, the accused person must be tried summarily and the maximum penalty on conviction is a fine not exceeding £100 or imprisonment for a term not exceeding six months or both fine and imprisonment. In the second case, the accused is triable on indictment and the maximum penalty is a term of penal servitude not exceeding seven years. This section emphasises the fundamental difference in character and in seriousness between the two types of offences.

I think the maximum punishments provided for in each case fairly reflect the views of most people as to what should be the punishment for the most serious offence that might be committed under the two different provisions. I was surprised to find it suggested that a civil servant, who disclosed confidential official information in breach of trust, should not be liable to any criminal sanction whatever and that the disciplinary penalty of dismissal would be adequate punishment for his action. I cannot accept this at all. It has long been the law that disclosure of ordinary confidential departmental information is a criminal offence, quite irrespective of whether the security of the State is involved in the disclosure. Civil servants are entrusted with a great deal of information about people's private affairs and considerable damage could be caused by unauthorised disclosure. Leakage of official reports and other confidential information might result in considerable financial gain to some persons.

Moreover, if citizens felt that the only sanction against disclosure of information entrusted by them in confidence to Government Departments or commissions was the penalty of dismissal, they would be likely to be reluctant to come forward and produce the information at all. There is no proper analogy between information voluntarily entrusted to private firms and that entrusted to Government Departments, usually in response to a specific requirement and with the threat of penalty for failure to make a full disclosure.

Section 14 provides that proceedings may not be taken for any offence under the Act without the prior consent of the Attorney General. The only exception relates to Section 9 offences, that is, where the safety of the State is involved. In these cases Section 14 allows arrest and remand in custody or on bail before the Attorney General's consent is obtained but it provides that no further proceedings shall be taken until that consent is given.

Turning to Sections 15 to 17, Senators will observe that these provisions are concerned with offences under Section 9. As might be expected in such circumstances, powers are given of arrest without warrant and for obtaining search warrants and information about suspected offences under Section 9, all of which partake of an emergency character. It is always difficult in peace time conditions to regard with equanimity any provisions of this kind and, indeed, it is to be hoped that the necessity for operating them will not arise. But it is unfortunately necessary to have these provisions available in case they are required and to take care that, in the event, they will prove to be adequate for bringing to justice any persons who may put the lives of our citizens in jeopardy. I do not think that, from this point of view, the provisions of Sections 15, 16 and 17 are anything other than a reasonable balance between the legitimate rights of ordinary citizens and the vital necessity for taking prompt and effective action either in an emergency situation or in the circumstances obtaining before an emergency is formally declared.

Before concluding I should like to say a word about the provisions of subsection (3) of Section 2, which was the subject of detailed consideration, and indeed criticism, while the Bill was passing through the Dáil. This subsection provides that a certificate given by a Minister under his seal that specified information is secret or confidential is to be conclusive evidence of that fact. I can appreciate that there is a reluctance to concede the principle of obliging courts to accept certificates of particular facts to be conclusive evidence. But I was satisfied, after a very full debate on all the various aspects of this provision, that it is a reasonable and practical one. I want to emphasise that the certificate must be given by the Minister personally under seal and not departmentally by one of his authorised officers. This is, in effect, a continuation of a tradition in accordance with which the courts have always accepted the word of a Minister of State that it would be contrary to the public interest to disclose particular information.

Professor Hayes

May the provision be retrospective? Is the certificate retrospective?

Mr. Haughey

We will deal fully with that on the section. That is a discipline which the courts have imposed voluntarily on themselves. It is the Minister and the Minister alone who, as the person responsible for the administration of the particular Department or office, can say whether or not particular information circulating in his office is or is not secret or confidential. Moreover, when this provision is taken in conjunction with the definition of official information, and the penal provisions of Sections 4 and 5, the overall change in the law is not in my opinion substantial so far as public servants are concerned. At present they may be prosecuted for the disclosure of information and the prosecution does not have to prove that it is secret or confidential. It is only necessary to show that they had the information by virtue of their office. The Bill makes it necessary for the information to be secret or confidential before any offence of disclosure can arise.

From the practical point of view, the accused person will have open to him what I consider to be the real and substantial defences in proceedings of this sort, that is, establishing either that he did not disclose the information in question at all or that he did disclose it but was authorised to disclose it, or disclosed it in the course of his official duties or when it was his duty in the interest of the State to do so. Once a person is a public official at all, a person entrusted with confidential information, and he discloses it without being authorised, he is, to my mind, prima facie guilty of an offence.

May I conclude by saying that I hope that it will not be necessary to invoke the provisions of this Bill at all, either what I might call the non-emergency provisions in Part II or the clauses elsewhere in the Bill which would not normally arise except in emergency or pre-emergency conditions. Certainly our experience since the establishment of the State gives cause for hoping that the Bill, when enacted, will not have to be availed of frequently. But it is necessary to have an Act such as this on the statute book, not only as a measure to deal effectively with future leakages of official information but also for the sake of the deterrent effect it will undoubtedly exercise. If only for that reason alone I think it will be agreed that the Bill will be a worthwhile addition to the increasing number of our consolidation statutes.

May I add that I shall welcome any suggestions which Senators may have for the improvement of the Bill and will give careful consideration to them. I trust the Seanad will agree to give the Bill a Second Reading.

Professor Hayes

The Minister said this is a measure to deal comprehensively with the matter of official secrets. Before I heard the Minister's explanation it seemed to me that the word "comprehensively" was a very adequate and proper word in the circumstances. The Minister dealt with the Bill in his Second Reading speech as if it were an ordinary thing, as if there were nothing peculiar about it, or nothing strange about it. In fact, he said it is in our tradition. I wonder. This is the first Irish Bill dealing with Official Secrets in the past 40 years, in the whole existence of the State. Up to now, we have been working on a British Act of 1920 which amended an Act of 1911.

There are two parts in this Bill, one dealing with the preservation of the safety of the State and the security of its citizens. With regard to that matter, so far as we on these benches are concerned, and I think so far as everyone is concerned, we would be prepared to give the Minister very substantial powers, and to listen to any suggestion of this Minister or any other Minister in regard to the powers which he desired to have for the safety of the State.

The Bill as we have it here seems to me, and to everyone I think, to go a great deal further. We have been satisfied with the British Act for the past 40 years. The British Act was passed in 1911 when Britain was only two years from a great war and yet it does not contain so far as my researches go anything at all corresponding to subsection (3) of Section 2. We got along with the British Act in circumstances in which we had a civil war, and we had the greatest war in history, and apparently we were not too hampered by the absence of the powers which the Minister is now claiming for himself and his successors.

I see little change in the provisions dealing with civil servants. We once had a situation in which the Minister's Party were working very hard to pervert and seduce civil servants and had a few successes which they rewarded with substantially high office at the cost of the State. Presumably their long periods of office have cured them of those practices but they do not seem to have cured them of the idea of getting more and more power. Although the Minister plays down Section 2, I should like to state what seems to me to be the meaning of it, as I read it. First and foremost, the words "official information" are certainly very comprehensively defined. In line 19 of Section 2 it is stated that:

"official information" means any secret official code word or password, and any sketch, plan, model, article, note, document or information which is secret or confidential or is expressed to be either...

When you come to find how the expression is given you go to subsection (3) which provides that:

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.

In other words, anything the Minister certifies as secret or confidential is secret or confidential and the courts have no power to make any inquiries about it. I take issue with the Minister on that. I deny that he is right. I assert that he is not right in saying that the courts have always accepted the Minister as the judge of what is secret and confidential and have imposed penalties upon persons in accordance with that certificate. That, I think, is not so. There is the question of privilege but that is a different question.

I asked the Minister, when he was speaking, under what circumstances the certificate could be given and if it can be given retrospectively. Would the Minister answer that? Is it possible to certify now in 1962 that a document of 1922 or 1932 is secret and confidential? I wonder would the Minister tell us.

Mr. Haughey

I shall deal with it later.

Professor Hayes

The Minister says he will deal with it later but it seems to me at any rate to give him power on which there is no limit. I shall read it again:—

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.

This certificate under subsection (3) of Section 2 is completely without limit. It has no limit, no proviso, no restraint, no time limit, and no court can inquire into it. I wonder is that necessary? Why is it necessary? How is it that we have got on so far without any such provision? The Minister provides later under another section that cases may be heard in camera and, indeed, he purports to compel the courts to hear them in camera. If that is so, why should the Minister have any more power than that the certificate is prima facie evidence of the facts certified?

I do not understand at all why this power should be inserted and I do not know whether the Minister can give us any more information. In his Second Reading speech he gave us certain details about the Bill but evaded telling us what precisely subsection (3) means. Perhaps we will hear more about it, but it seems to me that the Minister is taking power which no Minister before him took and which British Ministers have not got. After all they must have much bigger problems than we have.

I must say that when you accept the definition of "official information" and give powers to the Minister to certify anything he pleases as secret and confidential, you are arriving at a situation in which unscrupulous Ministers—and we may have such people—would be able to impose their wills upon citizens in a most extraordinary manner.

I also wonder how far the powers go that are taken in Section 6. I happen to be a former Minister and there are a number of others. Section 6 provides that in the case of officials who have not been Ministers or Parliamentary Secretaries the Minister or the Secretary of a Department can compel them to return documents in their possession, but in regard to Ministers and Parliamentary Secretaries a special Order must be made by the Taoiseach.

Sub-section (3) of Section 6 provides:

The Taoiseach may give directions as to the return or disposal of any original documents specified or indicated in such directions which constitute or contain official information and which are in the possession or under the control of any person who formerly held office as a Minister or Parliamentary Secretary and any such person shall comply with all such directions.

I wonder what is the meaning of "original documents". I have a number of documents that were circulated to me as a member of the Cabinet in 1922. Of course, they must be copies because every member got the document. If I got an original document is it possible to compel me to return a document which I received in the course of holding ministerial office long ago? Is it possible to exercise that power, for example, for the purpose of preventing me or anybody like me from disclosing certain facts about certain controversial events, and does that apply not only to me but to other persons at later periods? I wonder how it is proposed to work this or what the words "original document" mean and whether a direction can be given in regard to documents over any period of time. How far back can the Taoiseach go? Is it 5, 10, 15 or 40 years? There is nothing here to indicate that.

The Minister was right in using the word "comprehensive". It is an extremely comprehensive Bill. There was power, it seems to me at any rate, to prevent the writing of history and the Minister knows, of course, young and all as he is, that history has been persistently perverted by newspapers under the control of his Party and by the use of the Government Information Bureau for the same purpose.

Mr. Haughey

I wish we did control it.

Professor Hayes

We all know it. Is there additional power in this Bill to prevent the disclosure of documents which might be detrimental to that spurious and perverted case they have made? Perhaps the Minister in his own particularly calm way will be able to give us some comprehensive statement when he comes to discuss these matters in committee.

I do not want to go into this matter in great detail now. I conclude by saying that where the preservation of the State is concerned, I have no objection to the powers being taken by the Minister and it is possible to argue that the penalty imposed, a maximum of seven years, is too small a penalty but that is another question. We have no objection to that but with regard to the other matters contained in the Bill and to the extraordinary powers taken in subsection (3) of Section 2, I certainly intend to combat those and if possible to amend them.

Professor Stanford

I entirely agree with Senator Hayes that this Bill is far too drastic for the purpose of dealing with matters which are in the national interest as distinct from matters which concern national security. There is no need, I think, to define the difference there. It is clear to all of us.

I think we would agree very largely with what the Minister said on vital matters of national defence, military secrets and that kind of thing. That has been said very fully in the Dáil and I do not intend to repeat the arguments. But when it comes to matters like the divulging, possibly, of examination papers, or of what may be said on commissions or something of that kind, to tie those up with espionage and betrayal of one's country is far too drastic. There is also the risk, as Senator Hayes said, that these very drastic powers could be used to conceal matters prejudicial to the Government in power. There is the risk that if some information would do damage to the Government Party or to members of that Party these drastic powers could be turned on with their fullest force to prevent something being stated which it was definitely in the national interest to reveal.

At Column 632, Volume 194 of the Dáil Debates of 27th March, 1962, Deputy Dillon expressed this matter better than I could. I should like to repeat it:

We all agree that there are certain confidential documents which no public servant ought to discuss and there are certain documents, such as examination papers, which are in the hands of a contractor and which must be kept secret, but it seems, other than that, to seek to provide in the same piece of legislation for offences of that character and offences of espionage and sending out information on the confidential affairs of the State to a foreign power is not the proper procedure.

A fundamental fault in this Bill is combining these two aspects of breaches of confidence if they may be called that. I am afraid the rigours that we perhaps would agree should be applied to betrayal of one's country's interests might also be applied under a different Government, under a more angry Government, under a more malevolent Government than the present one, to matters of that kind. I do think we need to go over this Bill very carefully in this House, and I hope the Minister will on further reflection accept amendments in committee that he was not prepared to accept in the Dáil. I think he also ought to tell us at this stage whether, as Senator Hayes inquired, some of these enactments will be retrospective or not. Is it the Minister's intention to tell us at this stage?

Mr. Haughey

Yes.

Professor Stanford

After all, we must vote on this stage fairly soon and it is no use to be told that if we pass the Second Stage we shall have enlightenment later. I am grateful to the Minister for that assurance.

There are one or two matters of detail in the Bill that perhaps I might mention but which will come up more specifically on the Committee Stage. In relation to Section 9 (3), can a Minister authorise himself to betray his country? It is worth considering. I shall quote Section 9 (3):

It shall be a good defence to a prosecution for a contravention of this section to prove that the communication was authorised in writing by the Minister or State authority or by the party contracting on behalf of the Minister or State authority.

In other words if the Minister is going to betray his country—and that could happen—can he authorise himself to give away information which no one else would authorise him to do? That brings us to a basic point in the Bill. If the Minister is in some way to be the final authority in deciding what is confidential and what is not, if that Minister intends some betrayal who can deal with him? He is above the courts in this. There may be other ways of dealing with him but I should like the Minister to tell us how under the Bill such circumstances would be dealt with. That brings me to the last general objection that I have. Setting aside the wisdom, the experience and the impartiality of the courts, as to some extent is done in this Bill, is always dangerous to the national welfare. I should like him to consider very carefully again whether some of the amendments that were suggested to him in the Dáil to preserve the final authority of the courts of the land should not be incorporated in this Bill.

Mr. Fitzpatrick

I submit that in approaching this Bill we should bear in mind that it is a peace time and permanent piece of legislation. At first sight we might be inclined to regard it as a measure which was being put on the Statute Book to deal with an emergency situation or a state of war or something like that. It is nothing of the kind. It is a normal piece of legislation being introduced here with an invitation that it be passed and that it become part of our statute law; and we should view it in that light.

As the Minister told us, the Bill might be divided into two sections, one which deals with the disclosure of confidential information calculated to endanger or prejudice the safety of the State. That section of the Bill deals with a very serious breach of the law and is one which, as Senator Hayes has said, this Party agrees with. In fact, I think the penalties provided in this Bill for, say, the selling of confidential information about our defences to an enemy are inadequate. For some reason or another, the Minister has reduced the maximum penalty for spying or selling information to the enemy from 14 years' penal servitude to seven years' penal servitude.

The second section of the Bill deals with the disclosure of confidential information by civil servants or others who have acquired such information— confidential information of a kind which does not endanger the safety or the interests of the State. Why that was included in this Bill, I do not know. It confuses the issue and mixes up unlike with like, if I may say so.

The first time I read the Bill I came to a full stop at subsection (3) of Section 2 and I said to myself: "That is an extraordinary provision to put into this Bill". The effect of that subsection is to enable the Minister to certify whether a particular piece of information is secret or confidential or not and once the Minister has issued a certificate that a certain piece of information is secret and confidential, that is the end of it and the person who is charged under the Bill cannot put up the defence in court that it is not secret and confidential.

In my considered opinion, a person might have in his possession today a piece of information which he thought, and honestly thought, was harmless and was not either secret or confidential and tomorrow he might find himself charged with an offence under Section 9 and he might go into court to answer that charge, to be met with the certificate of the Minister certifying that the information was secret and confidential and depriving the court of the right to inquire into the matter.

That is a very serious departure from normal procedure and I should like to say here that I see nothing in this subsection to prevent its being used retrospectively. I have read the Dáil debates and I have seen there where practitioners of much longer experience than I hold the same view. I will read the subsection and I think, with all respect, it is relevant on the Second Stage because it goes to the root of the Bill; it is fundamental. The subsection 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.

Mark this and mark it well. That subsection does not create the offence. That provides the evidence for securing a conviction on the offence charged. The other sections of the Bill create the offence. That subsection provides the conclusive evidence beyond which an accused person cannot go and beyond which the court cannot inquire into.

As I have said, people of great experience believe that it can be used retrospectively. People with the same legal training as the judges who will be trying cases under the section believe that it can be used retrospectively. I know that the Minister has stated in the Dáil that in his opinion this section is not retrospective and is not intended to be retrospective. I will ask the Minister to indicate to the House in his reply to this debate that, if he is not prepared to remove this objectionable subsection from the Bill, at least he is prepared to put the question of it being retrospective beyond doubt, once and for all. If he and the Government insist on this very objectionable subsection standing, the question of its being retrospective can be put beyond doubt by the addition of half a dozen words to the subsection.

As I have said, I was surprised when I read the subsection in the Bill because I regarded it as an extraordinary departure from the normal procedure in the court. Then some time later I read the debates in the Dáil and I was even more surprised that the Minister in his reply to the Second Stage debate in that House was surprised that any exception should be taken to this objectionable subsection on the grounds that he regarded it as normal.

I shall take the liberty of quoting from the Minister's speech. At volume 194, No. 5, column 690 of the Official Report for 28th March, 1962, the Minister said:

I must apologise to the House and to Deputy Dillon in particular for the fact that the explanatory memorandum did not refer specifically to subsection (3) of Section 2. One of the most endearing characteristics of this House is its unexpectedness. There is no reason why this particular provision should excite a great deal of argument or comment. It seemed to me in putting it into the Bill to be a perfectly normal piece of machinery which was necessary to facilitate the working of the Act.

I do not say this in any offensive way but, if that represents the approach of the Minister and his Department to criminal legislation in his country, it discloses a very dangerous trend; it discloses a very dangerous mentality; it discloses a mind that is prepared to put exceedingly dangerous weapons into the hands of himself and his successors.

This subsection takes away drastically from the right of the citizen to defend himself in open court. It takes away drastically from the right of the courts to inquire into the case for the prosecution and the case for the defence. Here a man is held to have proved against him one of the most serious ingredients of the crime with which he is charged. He cannot offer evidence to prove he is innocent and the court cannot inquire into his innocence or otherwise. I should like to appeal to the House to look upon this subsection very seriously, not alone because of its presence in this Bill but because of the trend in criminal legislation which it discloses.

It is very unfortunate that Section 2, which deals with the disclosure of what I would call harmless information, is inserted in the Bill at all. I cannot see why a civil servant should be liable to conviction and two years' imprisonment for disclosing some harmless piece of private or confidential information any more than an employee of a county council, a clerk employed by a solicitor or a receptionist employed by a doctor. I cannot see the difference. If the information does not prejudice or endanger the safety of the State, the person concerned could very well be dealt with under the ordinary rules and regulations applying to civil servants.

The provision in the Bill which reduces the term of penal servitude from 14 years to seven years for a serious disclosure of confidential information which would endanger the State is a retrograde step. Sections 9 and 10 deal with the disclosure of information prejudicial to the State to foreign agents or members of an unlawful organisation. It is unfortunate that members of an unlawful organisation have been dealt with in these sections, especially Section 10. Section 10 says that if a person in possession of information mentioned in Section 9 does certain things, he shall be presumed to be guilty of an offence until he proves the contrary. For example, it says that if an individual in possession of information mentioned in Section 9 goes to the address of a member of an illegal organisation, it shall be prima facie evidence he is acting in a way prejudicial to the State. The State need not prove he has disclosed the information to that person. It has occurred to me that if a member of an unlawful organisation was the owner of a small hotel, or indeed a big hotel, and if a person in possession of the information mentioned in Section 9 went to that hotel on some other business, he might then have to go into the court and defend himself on a serious charge under this Bill.

There are several matters which I agree might be dealt with more appropriately on the Committee Stage. I think my objection to subsection (3) of Section 2 goes to the root of this Bill and if the Minister insists on retaining that section as it stands at present, the House should refuse to give the Bill a Second Reading.

Mr. Murphy

There are just two points I want to make on this Bill, both of which have been touched on already. The first matter that struck me reading the Bill was the maximum penalty of seven years' penal servitude for spying. It struck me that was a very small penalty. I did not know until the debate this afternoon that the corresponding penalty in Britain was 14 years. If the present Government lead us into some defence alliance with continental countries or with Britain, it seems to me it would be very much easier for people to engage in spying here with a lower penalty than across the water. Spying, I believe from newspaper reports, is a very remunerative profession. If we are now going to have a maximum penalty of seven years as against 14 in Britain, we possibly will provide some employment for such people here. I am sure the Minister in his reply will explain to us why seven years is regarded as an adequate sentence for what could be a very, very serious offence.

The other point I wish to deal with concerns the poor civil servants. It seems to me they can in the future find themselves in a very difficult situation. I know in some Departments already if a civil servant expresses a viewpoint in a speech and is reported in any way in the newspapers, what he said is very carefully scanned in the Department and in many instances he is called before his boss to explain why he expressed any viewpoint at all. Now it seems his opinions might be formed on documents he had read in the course of his work, which is very natural, and he might be told he has disclosed official information.

The point is dealt with in Section 2, which has been mentioned by nearly all the previous speakers. In reading it, it struck me it would be a better section altogether if, in line 22, instead of saying "which is secret or confidential or is expressed to be either," we said "which is secret or confidential and is expressed to be either." What I have in mind there is that, of necessity, some documents—a limited number—being dealt with by civil servants would be secret and confidential. What is to prevent their being marked as secret and confidential? If then they are so marked as "secret and confidential", it would be an offence for a civil servant to disclose subsequently either any information he had got from these documents or the contents of the documents themselves. I am not a lawyer and I cannot attempt to construe this, but it does seem to me as a layman that if this section goes through in its present form, a document need not now be marked. It need not be marked "secret" or "confidential" but, nevertheless, disclosing information got from that document can be an offence. If the Minister accepts my suggestion in regard to this that will meet my point. It will certainly do something to safeguard the position of civil servants who, in the course of their duties, do come across information. If a document is clearly marked "secret and confidential" they will know then what they are dealing with and, if they subsequently disclose that information, they will know the consequences they will be facing. Would the Minister in his reply kindly deal with that point because it will certainly affect my approach as to whether or not I should put down an amendment in line with the view I have expressed on this Section?

Mr. Cole

With regard to this subsection, I should like the Minister to explain how he envisages the certificate being used. It seems to me that, if I were accused under this section of the Bill and I arrived in court, and the Minister's certificate is there saying that the information I had disclosed, or had in my possession, was confidential, then as far as the court is concerned I have committed an offence. But how is the court to know what penalty to impose? There is a stage, it seems to me, at which there must be disclosed in some way to the court the enormity of the offence I have committed and therein is, I think, the safety valve as it were for the citizen. That is how I envisage the subsection working. The court itself would have to decide the enormity of the offence and the appropriate penalty. I do not know if that is the Minister's view. I should like a little further information on the point.

With regard to Part III, I wonder should we not go further in Section 9 and say that, if a person discloses information communicated to this State by other States, not necessarily prejudicial to the safety of this State, but possibly prejudicial to the safety of other States, certain appropriate action will be taken? I can envisage other States giving us information on defensive, or other matters, out of international courtesy. That might be disclosed by a civil servant of this State. If we do not take on ourselves the punishment of such people, what other body can? I should like to see something more in Section 9. Each subsection finishes with a reference to this State. I should like to see the position safeguarded in relation to any information given to this State by other States.

Mr. Lindsay

There are just a few matters I want to put simply by way of question and not by way of argument. I should like to know what the actual or apparent necessity is for this Bill at this time. Secondly, I should like to know what were the shortcomings or inadequacies that had to be dealt with by the emergency regulations to which the Minister referred in his opening speech. Thirdly, I should like to know what, in reference to civil servants under this Bill or under regulations, is not adequately covered already and, if that is so, how they fail or are defective in relation to ordinary Civil Service regulations. What is the purpose, if any, in combining the Civil Service within the State, foreign agents—I take it both in times of war and in times of peace —and illegal organisations within the State at all times in one Bill of this kind?

Lastly, I should like to know whether the Minister is prepared to state categorically that the certifying of a document by him as secret and confidential will date the secrecy and confidential nature of that document simply from the date of certification and that there will be nothing retrospective in relation to it?

Mr. Haughey

As most Senators have remarked, this is really a Committee Stage Bill and the arguments or discussion to be made on it can be made far more effectively on the Committee Stage. A few specific questions have, however, been addressed to me and it would be more advantageous to reply to them now.

First of all, I should like to deal with subsection (3) of Section 2 which has caused so much excitement and perturbation. I disagree fundamentally with what Senator Fitzpatrick says. He was at some pains to emphasise that this is a dangerous trend and that we are taking away drastically from the capacity of a person to defend himself. We are not doing anything of the kind. The simple unadorned truth is that we are not making any change of substance in the law. There is no new trend. This has been the law here and in Great Britain down through the centuries.

Mr. Fitzpatrick

The Minister is dealing with privilege.

Mr. Haughey

Both the British courts and our courts have always recognised and immediately accepted the statement of any Minister that a document is secret or confidential and that it would be against the public interest to disclose it, and the courts will not inquire behind that assurance of the Minister. That has been the accepted legal principle governing these matters. It is the law at the moment, without this Bill at all.

Mr. Fitzpatrick

I do not wish to interrupt the Minister but I suggest that what he is dealing with now is the position when a Minister is asked to produce a document as evidence. He can refuse to produce it on the ground that it is confidential. The position is different in the case of a man being charged; whether or not a document is secret or confidential in the latter case is the very essence of the crime.

Mr. Haughey

I have the utmost respect for the Senator as a member of this House but I claim that in this matter I am as competently advised as he is. I am told by my advisers and I accept—and I think it is beyond contradiction—that the courts, both in Britain and here, have Ministers without question. They have never inquired behind the Minister's certificate. They may from time to time have grumbled at the reluctance of Ministers to disclose information, but they never suggested that the privilege attaching to the State in this regard should be interfered with. Therefore, I deny emphatically that there is any new trend evident in the Bill which is not there already.

Senator Hayes adverted to this point and asked why was it necessary to do this now, and why it was not necessary before. He asked why it was not in the 1911 Act or the 1920 Act. The simple reason is that it was not necessary in either of those Acts for the authorities to seek this power because it was not necessary under these Acts for them to prove that information was secret or confidential in order to constitute an offence. It was a basic principle of the law in England that this situation prevailed and that the statement of the Minister was unhesitatingly accepted by the courts.

Mr. Lindsay

Does the Minister not trust the courts now to allow that situation to continue?

Mr. Haughey

That is not the point. This is a consolidation measure in which we are endeavouring to codify the law——

Mr. Lindsay

This is new. There is no consolidation or codification in this.

Mr. Haughey

It is not new. It is codifying——

Mr. Lindsay

This particular subsection?

Mr. Haughey

This particular subsection is codifying the law in the sense that it now incorporates into a statute what has up to now been a principle in law and accepted as such a principle by the courts.

Mr. Lindsay

Will the Minister give us at some later time—I shall not ask for it now—the authority that this was a legal principle?

Mr. Haughey

I shall deal with it more fully when we come to the section. I am asked specifically by Senators about this question of retrospection and I feel there may be some little confusion which I shall endeavour, if I may, to clear up. Two different things are involved. First of all there is certification under subsection (3) of Section 2 by the Minister as to the fact that a document is secret or confidential, and there is in the definition section, Section 2, a definition of "official information". This point was also adverted to by Senator Murphy. The definition is that:

"official information" means any secret official code word or password, and any sketch, plan, model, article, note, document or information which is secret or confidential or is expressed to be either...

I want to deal for a moment with that aspect. It is quite clear that the expression of a document or a piece of information to be secret or confidential must be done at the time the person either has it in his possession or discloses it. There can be no element of retrospection with regard to stamping or expressing the information to be secret or confidential.

Professor Hayes

It must be on the face of the document?

Mr. Haughey

At the time.

Mr. Murphy

It should be "and" so.

Mr. Haughey

There could be two types of cases involved. The first type would be that the document was stamped secret or confidential. It is clear—and I assure the House that what is intended is—that the stamping or noting on the face of the document as being secret or confidential cannot be retrospective in any way. It must be on the face of the document at the time the official had it in his possession or was disclosing it.

Professor Stanford

As this is so important would the Minister not put it into the Bill? What he is saying will never be the law; what is in the Bill will be the law.

Mr. Haughey

We must go on from there. There is the information which is inherently secret or confidential but cannot be stamped as such, for instance, information which can be disclosed by the Minister or someone else to an official by word of mouth. There could be no question of stamping it or having any written indication that it is secret or confidential.

Mr. Murphy

That is not a sketch, plan, model, article, note, or document.

Mr. Haughey

It is information.

Mr. Fitzpatrick

Am I right in thinking that there are three sorts of information: information which is obviously secret and confidential; information which is stamped secret and confidential; and information which is certified secret and confidential?

Mr. Haughey

We will come to that.

Mr. Lindsay

There is a fourth now, information which is inherently confidential.

Mr. Haughey

That is the same as what Senator Fitzpatrick means. We are dealing now with official information and its definition and it is defined as information which is stamped as such or information which is in itself official information. In regard to the latter one, what I am concerned about at this stage is to indicate that stamping of statements and documents cannot be done afterwards.

Professor Stanford

Would the Minister not put that in the Bill? A good many of us would be more satisfied if he would.

Mr. Haughey

I think it is clear from the wording of the definition of "official information." If it is not, and if some Senator can suggest a better form of words which would show that what I say is not the literal interpretation of the definition, I will reconsider it.

We come now to the other aspect of subsection (3) of Section 2. I want to admit that there must be some element of retrospection here, but again I think confusion may arise in the minds of the House. Obviously certification by the Minister in accordance with Section 2 (3) will only happen when a case goes to court or is about to be brought to court. Therefore, as presumably disclosure will have taken place some time before the case goes to the courts this particular certification will be done in the courts or immediately before the proceedings.

Mr. Fitzpatrick

He will be judge, jury, prosecutor and defence counsel.

Mr. Haughey

At the present moment any Minister can go to the courts and say: "It is not in the public interest to disclose a certain piece of information and I refuse to disclose it," and the courts will unhesitatingly accept that.

Mr. Fitzpatrick

But would not convict the man on it.

Mr. Haughey

I do not think we should get involved in a detailed argument at this stage. I am asked for certain specific explanations and I am endeavouring to give them to the best of my ability. In regard to subsection (3) of Section 2 there is necessarily that element of retrospection. I want to differentiate between that technical retrospection or mechanical retrospection and what I think is in Senator Stanford's mind. I think he is here really concerned that no one would be capable of being prosecuted for a crime which was made a crime by retrospective legislation. There will be no question of that. When this Bill becomes an Act it will operate only from the date it becomes law, and there will be no question of its provisions applying retrospectively to anything that was done before it became law. The certification referred to in subsection (3) can only be, as I say, as a mechanic of evidence when the case is being conducted in court.

Professor Stanford

What about the example quoted by Deputy Sweetman in the Dáil about his secret document?

An Cathaoirleach

I am afraid we cannot have an across-the-floor debate while the Minister is concluding.

Professor Stanford

It is a question.

Mr. Haughey

A lot of these questions will come up again. I think Senator Hayes adverted to the point which Senator Stanford is now raising, namely, whether or not a document which came into his possession when he was a Minister 40 years ago could now be demanded by a Taoiseach.

Professor Hayes

Could now be certified under subsection (3) of Section 2.

Mr. Haughey

I thought the Senator's point was in relation to subsection (3) of Section 6.

Professor Hayes

I thought the Minister was still on subsection (3) of Section 2.

Mr. Haughey

No. I dealt with the element of retrospection in subsection (3) of that section.

Professor Hayes

The question I put was on subsection (3): Could a document in my possession now be certified by the Minister as secret and confidential?

Mr. Haughey

I took it Senator Hayes's question arose out of Section 6. I shall answer it as if it did, because I think it is worth clearing up this point. I understood the gist of Senator Hayes's question was whether or not the document which came into his possession 40 years ago could now be demanded by a Taoiseach and whether he could be asked to hand up such a document. The first thing I want to emphasise is that it must be an original document. In that regard I would not like to be too explicit but it would seem to me that a document of which there were a number of copies could not be regarded as being an original document.

Professor Hayes

Then no Minister has an original document because he always gets a copy.

Mr. Haughey

Senator Hayes also asked whether he could be prosecuted now for disclosing, as he puts it, the truth about this period. Of course, he could at any stage over the past 40 years have been prosecuted for the disclosure of official information which came into his possession as such. That is the law at the moment. We are not changing anything in that regard.

Mr. Fitzpatrick

But the documents could be certified.

Mr. Haughey

At any time over the past 40 years the law governing this matter has been the same, namely, that anybody who discloses official information could be prosecuted. The significant change we are making now is that it must be secret or confidential. Up to now it did not have to be secret or confidential. The disclosure by Senator Hayes, or by any other Minister or ex-Minister, of official information which came into his possession by virtue of his position was and is a criminal offence.

Professor Hayes

The country is reeking with criminals.

Mr. Haughey

With regard to all this, we should keep our sense of balance.

Professor Hayes

And our sense of humour.

Mr. Lindsay

And our information.

Mr. Haughey

And, of course, our sense of historical perspective. What is dealt with in this Bill has been the law for 40 years. We are not suddenly going to go haywire in prosecuting people for offences against this code. There is practically nothing new in this measure. It is to a large extent consolidation. We are merely putting down in a modern statute what has been the law and what has been contained either in the principles of common law or in the two Acts of 1911 and 1920. I think the fears that were expressed are unreal and unwarranted. I do not think there are any other points with which I have been asked to deal specifically at this stage.

Mr. Murphy

The seven years.

Mr. Haughey

Yes. That is something I am prepared to discuss. Generally speaking in these matters there has been a tendency over the past number of decades and I think throughout the past century for the courts to reduce prison sentences and sentences of penal servitude well below the maximum terms provided by law. It was in conformity with that trend that we put the period of seven years into the Bill. However, if there is a feeling in this House that the period should be longer and if an amendment to this effect is put down I shall certainly be prepared to listen to any arguments advanced in favour of it. I would point out that very rarely does anybody serve more than 10 or 12 years of a life sentence. In murder cases where sentences of execution have been commuted to life imprisonment the average length of the sentence served has been fairly short. I do not think the average number of years served in these cases would be greater than seven years. Therefore the seven years' maximum in the Bill must be considered in that light. However, I shall certainly be prepared to listen to arguments put by Senators here.

With regard to Senator Lindsay's question as to what was the need for this Bill, that is a relevant question to be addressed to me at this stage. The only answer I can give is that there is no real specific need at this stage except that it is part of the general programme of legal reform on which we are embarking. It is my idea and objective—and I think the Seanad generally would agree with this—that all our statute law should be contained in Acts of this Oireachtas and that we should as rapidly as we can get away from the position where we have to rely in any field on British statutes applying to this country by the Adaptation of Enactments Act.

That is the main reason for the repeal of the 1911 and the 1920 Acts and for the introduction of this measure. In addition there is the necessity to make some amendments and to bring the law up to date and that is what is proposed in the Bill.

Senator Lindsay also asked a question about the position of civil servants and whether this whole matter could not be simply left to the regulations governing civil servants. I thought I had dealt with that in my opening remarks. It is my view that despite any disciplinary regulations which may exist in the Civil Service it should still be a criminal offence if a public servant entrusted with confidential official information discloses it in an unauthorised fashion. That is necessary for the common good. People have to disclose all sorts of information to Government Departments whether they like it or not from time to time and they are entitled to this security, to know that if that information is disclosed it will be a criminal offence for the official who discloses it and that it will be something more than just a breach of regulations to be dealt with as a matter of internal discipline in the Civil Service.

Subject to the arguments on particular provisions which I realise from this debate a number of Senators will put forward on the Committee Stage, I feel that this Bill should be acceptable in principle to the House. As I have said, I am prepared to consider any amendments or suggestions that can be put forward for the improvement of the Bill. Indeed, if somebody can suggest a manner in which I can achieve the object of the Bill and still make subsection (3) of Section 2 more acceptable, then I will be prepared to consider that position. I think that in principle, at this stage anyway, the Bill can be accepted and that the House could agree to give it a Second Reading.

Professor Hayes

Yes. The House can give a Second Reading to a Bill, in our case, without accepting the principle, and I do not accept the principle in part of this Bill at all.

Mr. Haughey

As long as you give me a Second Reading, Senator.

Professor Hayes

I will give the Minister the Second Reading because I want him to explain the evasiveness of his Second Reading speech now.

Question put and agreed to.

Committee Stage ordered for Wednesday, 28th November, 1962.