We shall take amendments No. 1, 2 and 6 together.
Official Secrets Bill, 1962— Committee Stage.
I move amendment No. 1:
In subsection (1), page 3, to delete all words from and including "secret" in line 21 down to and including "either" in line 22, and substitute: "expressed on its face to be secret or confidential".
The Minister, in the Second Stage proceedings, gave the opinion that this was in the main a Committee Bill and that he would explain certain things in Committee. He certainly did not explain them when he was concluding on the Second Stage and I put down this amendment for the purpose of making certain things clear.
Is it the case that something, a document or anything else, cannot be made secret and confidential for the purposes of a prosecution? If, for example, the Minister were to accept amendment No. 2 that would satisfy me. I know amendment No. 1, in its present form, is defective because in the case of a particular piece of oral information, you could not express on its face that it was secret and confidential. But if the position is, and if the Minister can make it plain to us that the position is, that official information must be known to be secret and confidential from the beginning, then I think I shall be satisfied. Otherwise, we must put something into the Bill to indicate that is so, either something like amendment No. 1 or something in the form of amendment No. 2 in the names of Senators Murphy, Stanford and Miss Davidson.
My reaction to reading Section 2 of the Bill was that if you wanted to understand the word "expressed" in line 21, you go to subsection (3) which provides for the giving of a certificate by the Minister which is to be conclusive evidence. If the word "expressed" in that particular context, means expressed at the time of the issue of the document, then the situation is different. Therefore I put down the amendment knowing it was not perfect in itself for the purpose of having this matter debated.
May I come in after the Minister?
It would be better if we took the Senator now.
The object of our amendment, No. 2, is, I think, clear enough. The Government is taking very strong powers in this Bill. This kind of Bill is the greatest temptation of all for Governments, and I hope the Minister, in considering our deliberations this afternoon will keep in mind that he is being subjected in this Bill to the strongest temptation that any Minister of State can be subjected to. Also I should like him to realise that when we put a case against the views expressed in the Bill, it is not against any particular Government, not against his Government, but in the interests of the citizens in general as we see it. We have to keep a balance between the need for the State to protect itself and the need for the citizens of having the right of self-expression, the right sometimes to reveal information which may seem to be a boundary line case between confidential and non-confidential. We must also keep in mind that the area of meaning which is being given to the word "confidential" here is very wide. We come across that in later amendments—the question of information given to boards and councils that may come under this Bill. So, I think we have to take the very greatest care at the beginning of the Bill to make sure at least one thing, that is, that when a person is being given secret or confidential information it should be made absolutely clear to him there and then that if he divulges that information he is liable for penalties under this Bill.
Perhaps we are misled in this but, as I see it, a situation like this might arise: The Minister or someone in the Department gives certain information to someone else in the Department and then circumstances arise in which that person who has received the information may in the interests of the welfare of the State, as he sees it, feel that he must divulge it. If he has not been warned when he received that information, that it is under the terms of this Bill secret and confidential, then I believe he has a right to divulge it, and it would be a more than lamentable thing that a Government could come after him later on and say, "You should have been aware of the fact that this information was secret and confidential. As far as we are concerned, it was secret and confidential. I, as Minister, am signing a certificate to the effect that it was secret and confidential", and then the whole course of this Bill is put into operation against him.
This is a complicated Bill, a very closely drafted Bill. If the Minister can assure me that this cannot arise, I will be satisfied. If he can even persuade me that it is not desirable to put down this amendment, I personally will be satisfied. But I should like him to meet it with the feeling that there is very serious misgiving in our mind about the Bill as it stands at the moment in this section.
I should like to support all that Senator Professor Stanford has said. It is very essential that, as this amendment seeks to do, such information should be expressed at the time of the communication to be confidential. That is very important. As Senator Murphy said here, civil sevants in the course of their employment might get documents and might discuss with others in the course of their employment documents which were not marked secret but which afterwards they are liable to be told they should have known were secret. For that reason I would support the amendment.
I should like also to add why it seems to me important that such information should be at the time of the communication expressed to be secret or confidential. The type of information that might be given might be useful to other powers, which might be very dangerous, and it is wiser to lock the stable door before the horse gets out.
Nach féidir go mbeadh eolas rúnda ann ná beadh scríobhtha in aon chor agus cé an cosaint atá ag an Rialtas air san? Ná ceapfadh aoinne, is cuma go bhfuil teideal rúnda air nó nach bhfuil, nár cheart dó é d'fhuascailt? Tá go leor rudaí ann agus bíonn siad rúnda ach ní bhíonn siad ar páipéir. Sin rud atá ag déanamh buartha dom.
I should very much like to reassure the House on this matter because I think Senators are seeing difficulties which do not really exist. I am talking exclusively now about Section 2, subsection (1) and the definition of official information. I feel that that definition is as clear as it can be. Official information is described as meaning 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.
Obviously, there are two types of things involved here. There is, as Senator Ó Siochfhradha points out, information which may be written or oral. Such information whether written or oral, might, of its very nature, be secret or confidential—a budget secret for instance. There could be no doubt in anybody's mind that it is secret or confidential. The written document may be expressed on its face to be secret or confidential —stamped confidential, secret, or what have you.
There is no doubt at all in my mind, and I think it is absolutely clear from the wording of the definition, that in this regard this stamping or expressing to be secret or confidential must be done either at the time of disclosure or prior to it and that it cannot be done afterwards. Both amendments would exclude from the ambit of the definition any oral information and I think, therefore, that, for that reason, the amendments are unacceptable.
Moreover I do not think that either amendment is necessary. Let us pause here to consider what we are dealing with. We are dealing with public servants and with information that might come to them in their office as public servants. We are saying there should be a general prohibition on the disclosure by them of the information. In fact it should be a general principle that no civil servant should ever disclose anything.
Does this clause apply to people on boards?
There is a general principle here. The people included must be remunerated from public funds. If a board were set up by the State and the people on that board were paid by moneys provided by the Oireachtas, they would be included. If they are not so paid they are not included.
In fact in this Bill we are not at all departing from the position as it is at present and as it has been during the past 40 years. It might be helpful to Senators if I read the circular which is given to every civil servant about these matters and I might stress that every civil servant signs a declaration when he goes into the Service to the effect that he has read and noted the contents of this circular.
This document is issued by the Department of Finance and is headed Official Secrecy and Integrity (Trust of the Individual Civil Servant). It states:
I am directed by the Minister for Finance to refer to the Circular letter of 8 Abrán, 1932 (No. 12/32) in which the Departmental procedure to be adopted in making communications to the newspapers or public journals on official matters was laid down, and to state that, as indicated in the last paragraph of that Circular he has had under consideration the need for making known to the Service the obligations resting on the individual Civil Servant in regard to official secrecy and integrity in the transaction of official business.
The Minister desires to impress on all Civil Servants that it is their duty never to make unauthorised communications directly or indirectly in reference to matters which come to their knowledge in the course of their official work and to refrain from mentioning such matters to anyone outside their Departments. This instruction applies to decisions already taken as well as to matters that may be still under consideration or discussion.
Can there be anything clearer than that? Is it not a general principle there should be no disclosure of any sort? Then we proceed to make some reasonable exceptions.
What are the reasonable exceptions?
The Senator will see them when we come to Section 4. At the moment we are dealing only with the definition of official information. The Bill clearly stipulates that it is an offence to disclose secret information which is stamped as such.
It becomes secret after the stamp is on it?
Would the Minister clarify the position with regard to boards? He mentioned boards on which the members are paid from public funds. Certain members of An Bord Bainne have certain small emoluments.
They are not covered. Only members of bodies such as tribunals, committees and commissions are covered if these bodies are set up for the purpose of an inquiry. Therefore, members of An Bord Bainne would not be included.
I can return to that topic when we come to my amendment. This question of official information arises. While the prohibition that the Minister has mentioned is very sweeping, surely in its application there would be a great deal of common sense exercised because departmental officials are in touch with various voluntary organisations and there must, of necessity, be a certain amount of confidential information discussed.
Every day, in every Department, but in fact Section 4 says "unless he is duly authorised to do so".
The alteration there could be more of a blanket effort—that if the official believed the disclosure would be advancing the situation in hand——
Usually, the higher the civil servant the greater the discretion. If you take it that the Secretary of a Department who knows that his Minister met a group of people the day before and disclosed certain information to them, there is no harm in his taking it on from there. It would be practical in its application.
I should like to be assured that no legislation would impair the effectiveness of the Civil Service.
The Minister has gone a long way in satisfying me. But there is one thing more I should like to ask him. What are the penalties at the moment for a breach of confidence or secrecy in the civil service. and are the penalties in this Bill considered by the Minister not to be too severe in the case of minor breaches of secrecy? Here we have a pretty drastic Bill. We are combining two things in it—the defence of the realm, we might say, and the need for secrecy and confidence in Governmental policy in general. We are joining those two in this Bill. Many of us are afraid that the unfortunate clerk in a Department who divulges something which is not of any great importance, but which may be of annoyance to the Government, may be caught up on this machine which is really aimed at a person who conspires against the State. Therefore I would ask what the penalties are at the moment, and if we are increasing these penalties in this Bill.
We are doing both. As the Senator knows, the Bill is divided into two Parts—that involving ordinary disclosures where the safety of the State is not involved and the Part where the safety or presevation of the State is involved. Where the safety of the State is involved and where the offence is being dealt with summarily we are increasing the maximum penalty from three to six months and the amount of the maximum fine from £50 to £100, but we are reducing the penalty in cases tried on indictment. We are increasing the penalties in cases to be dealt with summarily and reducing them in indictable cases. Some Senators during the Second Reading thought we were not providing a sufficiently heavy penalty on the indictable side but as no Senator has put down an amendment I gather Senators must be satisfied.
What I believe is wrong with this fundamentally is that the Minister is including with matters aimed at the preservation and the safety of the State questions of official information. The definition here applies not only to public officials but includes Deputies and Senators as well.
Are they not holders of public office?
They do not come within the scope of this Bill.
The Bill refers to an office or employment which is remunerated out of the Central Fund or out of the moneys voted by the Oireachtas. All of us are so remunerated and as I read this Bill, Deputies and Senators are included, particularly in view of the most recent Act which provides that Deputies and Senators receive remuneration. Quite clearly, therefore, they are included and I should like the Minister to investigate that. The answer to Senator Stanford, I think, is that, heretofore, the punishment for a civil servant was Departmental. He could be demoted, presumably fined or dismissed. This Bill creates a criminal offence. Is that not right?
It always was.
Why is it here now, then?
This circular which is issued to every civil servant has printed on the back extracts from the Official Secrets Acts, 1911 and 1920, and from the Prevention of Corruption Acts, 1899 to 1916, making it absolutely clear that anything of this nature would be a matter, not only for disciplinary action but also a criminal offence.
I think that the Minister will find that "public office" includes members of the Dáil and Seanad and that they come within the ambit of this Bill. I do not think that was the case with the 1911 Act.
I am advised and I think myself that Deputies and Senators are not included. I am relying on the meaning of the word "remuneration". However, as the Senator has raised the matter and as it is a very important point I want to check it a little further.
In the nature of things, I have some little knowledge. I remember that when members first received any money from public funds it was given as an allowance, a Parliamentary allowance. I think that was the word used in Britain as well. However, the most recent Act dealing with Deputies and Senators provided, as far as I remember, that there should be remuneration—not an allowance. Some parts of it may be not subject to tax, because of expenses, but part of a Deputy's and Senator's remuneration now is certainly subject to income tax. Therefore, it is certainly remuneration and it is remuneration out of public funds. It appears to be clear that they are included in this particular definition.
The Minister says—and I accept at once his word—that what he means by this definition is that before a person can be accused of an offence steps must be taken to tell him or he must know in the nature of things that the information he has is secret and confidential. I know that my amendment would not do with regard to oral information. You cannot stamp oral information that it is secret and confidential. I have the greatest confidence in the Minister's advisers, in the office of the Attorney General and in the Parliamentary draftsman's office that if the Minister wants to do something about oral information he can get it done. He could frame an amendment of his own so that, in spite of what he says, a person might not find himself accused of a criminal offence without having sufficient warning. We were taught at school that for a sin to be mortal three conditions had to be fulfilled — grievous matter, perfect knowledge and full consent. You would not have perfect knowledge here at all.
To return to the question of where there is a double penalty involved for public servants— the question of demotion and also criminal offence in the courts—is it mandatory—I take it that it is—for a Minister to take disciplinary action against the civil servant for a minor breach? Is it mandatory for him to inform the Office of the Attorney General and also to have criminal proceedings again there?
No. There is no necessary connection between the two at all. In fact——
How does the criminal offence come to the notice of the Attorney General if not from the Minister?
It could only arise if the Minister's Department decided that the disclosure was of such a magnitude and such a serious nature that it warranted criminal proceedings. In the ordinary course, there would be disciplinary action and that would be the end. The usual phrase we meet with in that connection is that the officer concerned has subsequently been transferred. He may be docked an increment or something of that nature. There is no mandatory element in it at all.
I have now the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1960, and at no stage is the word "remuneration" used. The Bill is quite specific that it is allowances—"allowances" is what is used throughout.
They are subject to income tax.
That still does not make remuneration.
Surely it does.
On that point, I would suggest to the Minister that irrespective of what it is called, it is in fact remuneration and it would be quite open to the court to hold that it is remuneration and to apply the section.
A clear distinction is made between allowances of this sort and remuneration. The term "remuneration" in this connection, meaning remuneration out of public funds, is always intended, and is always officially used, to mean whole-time remuneration. Part-time allowances, such as Oireachtas allowances, do not come within the ambit of the term "remuneration". Just to emphasise that point, the Ministerial and Parliamentary Offices Act, 1938, speaks specifically in terms of remuneration of members of the Government, the Parliamentary Secretaries, the Attorney General, the Chairman and Deputy Chairman of Dáil Éireann and of Seanad Éireann——
That is correct.
——making it clear that they are full-time salaries—remuneration. But part-time allowances, such as Senators and Deputies have, are not ever referred to as remuneration but are always referred to as allowances. I think it is quite clear from normal Parliamentary usage and from normal Parliamentary draftsman's practice that Deputies and Senators are not included. However, it is a vital point and I shall make absolutely sure of that. If necessary, I shall put down an amendment on Report Stage.
It is worth looking into it.
The Minister has helped us a great deal in this discussion. If I were quite clear that one class of person and one situation could not arise under this Bill then I should be quite satisfied to withdraw my support for the amendment, with the permission of the House. The kind of information I am thinking of is information which is not secret and which is not confidential but is certified to be secret or confidential by a Minister. There is nothing personal in this, needless to say; it is not directed to any specific Government. However, a case could arise in which a certain type of marginal information which was not strictly entirely confidential or secret was used in a punitive or vindictive way by a Minister of State against someone on a board or in the Civil Service. I think we all want to prevent that possibility. If the Minister can assure us that this is a chimerical conception, I am quite satisfied.
I must be frank with the Senator and with the House in saying that it is possible for the Minister, but only for the Minister personally, in the exercise of his official capacity to certify that certain information is secret or confidential. That is really only as a mechanic of the prosecution. I want to point this out to the Senator. We are dealing with public servants. We are dealing with public information. We are dealing with information that comes to public servants in the course of their office. They know, by the very virtue of their profession and the nature of it and by the fact that they signed this declaration, that there is, as it were, a general embargo against disclosing any information of any sort.
All that this certification by the Minister does is to establish the fact that it is secret or confidential. The prosecution still has to prove that the public servant disclosed the information, that he was not authorised to disclose the information, and so on.
Therefore, the fact of the secrecy or the confidential nature of the document is probably the least important aspect. The main thing is disclosure. Once a public servant discloses information which comes to him by virtue of his official position should he not, of necessity, prima facie be in the position of having done something wrong? Surely the least important aspect of the prosecution's case is that the information disclosed was secret or confidential?
Amendment No. 1 withdrawn?
Yes. I should like to read this debate and see what we should do about it. Meantime, I am prepared to withdraw the amendment.
Provided this matter about members of the Oireachtas is considered. I take it the Minister will look into that.
We shall have another stage.
Amendments Nos. 3 and 4 may be taken together.
I move amendment No. 3:
In subsection (1), page 3, line 29, before "or" to insert "board".
I am seeking to put public boards within the scope of the Bill, public boards appointed by the Government, not merely for the purpose of inquiries but the various other public boards that have been appointed. We got a very salutary reminder of this in the past two weeks when the very confidential discussions of the Board of Telefís Éireann, a board set up by the Oireachtas, were blared forth in the newspapers. There must be a leakage somewhere. This Board, or some selection committee of it, were engaged in the very serious and highly confidential task of reviewing the applicants for the No. 1 post of Director of Telefís Éireann and making recommendations first, I presume, to their own Board and, secondly, to the Government for approval.
Two weeks ago one Sunday newspaper had banner headlines telling the confidential information that the Board was about to appoint one man —I think he was from America—and giving his background, name and everything else. Last week we had another name given and I am not certain whether this is the official name or not. This represents a type of disclosure which to my mind, is not in the interests of the public or in the general interest of the good working of such State boards. I cannot see anywhere in the Bill that such a disclosure could be in any way followed by prosecution. I should like to ask the Minister now if I am correct in that?
Perhaps I should say something now and the Senator can come in again if he wishes. The Senator's interpretation is, roughly speaking, correct. None of these boards are within the ambit of the Bill. The only type of people brought within the ambit of the Bill are persons remunerated out of funds provided by the Oireachtas. The Members of the Radio Éireann Authority, I understand, are remunerated or given allowances out of the funds of the Authority so that they are certainly not within the ambit of the Bill. Neither, I expect, are the members of An Bord Bainne or any of these boards. I think that position is desirable. I think this Bill goes far enough when it includes persons remunerated out of funds provided by the Oireachtas. That is the rough and ready guide that we are using. It is probably not the most satisfactory or precise test but is probably the most practicable.
People on boards of this nature vary enormously, from those who give their services voluntarily on boards such as the Adoption Board to members of authorities who are paid fees and allowances. Generally speaking, I think members of boards not financed by public moneys are in a different category and in a different capacity from public servants, as such. They are on a different level, if you like. I think the most satisfactory way of dealing with the situation where members of such boards would disclose information would be to leave that to the members of the authorities themselves. I think it is undesirable to bring them within the scope of this Bill. Each of these bodies must regulate its own affairs. From time to time, there may be harmful disclosures of one kind or another but I do not see how we could, and even if we could, I do not think it would be desirable to, bring them within the scope of this Bill.
The Minister has clarified the position and my amendment is substantially correct. Those boards are not within the scope of the Bill. I am proposing in some amendments that they be brought within the scope of the Bill and in later amendments I am proposing that certification as an official or confidential document be left to the board concerned. In other words, I am accepting the principle that the Board should be master in its own house when we have appointed it, just as the Minister is master in his own house and has discretion about what disciplinary action to take or whether to move on to more drastic court action.
I think public boards should have exactly the same discretion and should be in a position, if the breach is serious, to be able to put the case in the hands of the Attorney General. Those Boards are really an extension of State working. It is just a device, used as Roinn na Gaeltachta was used to take over a whole section of work formerly done by the Department of Education or Industry and Commerce or perhaps both. It seems to be a tendency in modern legislation to farm out whole sections of work of Departments to State-appointed Boards. An Bord Bainne achieved the same task. It now has responsibilities formerly carried by the Department of Agriculture and which, had they remained with the Department would be secret and confidential and subject to this Bill. But due to the very fact that a public board has been appointed to discharge this work they are free of the Bill.
I think that is scarcely desirable and I am not going to advocate undue prosecution or anything of that kind but I think all our boards should be on much the same level. Very many of the public boards deal with items involving high finance and the decision of the board, if leaked prematurely, could involve either manipulation of the stock exchange or somebody making a large profit. A serious breach of that nature on the recommendation of the Board concerned should be punishable with all the rigours of the law. That is why I move the first amendment which is just consequential; in other words, to insert the word "board" and put boards on the same level as commissions and so on. The subsequent amendments are independent of this in that I am seeking to apply separate principles to commissions, tribunals and so on. At the moment I am suggesting that boards be added to the scope of the Bill under this section.
May I elaborate a little further? This may meet the Senator's point of view. As the Senator knows, all these boards vary in form, composition and financial arrangements, but I think it is clear that if any of these boards includes members paid wholetime out of the funds of the Oireachtas, then the Bill will apply to that board. I do not know if An Bord Bainne is such. Alternatively, if the wholetime staff of these boards are remunerated out of Oireachtas moneys, again they are caught by the Bill so that the people left outside the Bill are, if you like, a very limited class. The people the Senator is concerned about may be, in fact, caught though I cannot give any sort of blanket assurance as to the boards generally because they vary so much in detail.
Surely An Bord Bainne would not come within the scope of this Bill in that it could be held that the fund out of which its wholetime officials are paid is a complete one, made up partly of contributions by the State and partly by the levies on produce.
Once they are remunerated out of moneys provided by the Oireachtas.
Surely we are all caught then? If you extend that to the Universities themselves, part of the funds of the University are provided by the Oireachtas. We are in exactly the same position vis-à-vis remuneration as are the officials of An Bord Bainne.
We are getting into deep water, as the Senator realises.
We are getting outside the scope of the amendment.
Keep away from professors.
The question at issue is that I have suggested a blanket inclusion of all boards and the Minister suggests there are some boards whose permanent officials may be caught under this and some who may not. I am just looking for clarification.
Broadly speaking, the principle of the Bill is that where the board or the organisation is financed by moneys provided by the Oireachtas we regard it as being, as it were, a type of public organisation to which these provisions should apply, but, if it is a board whose members or staff are not remunerated out of public moneys, then it is out and we leave it to regulate its own affairs. We feel that the control of this Bill should stretch out to cover organisations which are remunerated or whose staff is being remunerated out of funds provided by the Oireachtas.
I seem to be more confused than ever now. We have a very specific example there: we have Bord Bainne.
Might I mention to the Senator that the Bill has to do with official secrets?
Yes, certainly. I am dealing with amendment No. 3 in which I seek to bring all boards under the scope of this. I previously assumed that all boards were outside its scope and now, apparently, according to the Minister, some are within and some are without. I am trying to discover the dividing line between the two and this seems to hinge on the interpretation of "the funds being provided by the Oireachtas". The Minister has suggested that an official of Bord Bainne would be included under this Bill.
I am not sure. I do not know what exactly the set-up in Bord Bainne is but I am saying that we have adopted the principle that where the official or the member of the board is full-time remunerated out of moneys provided by the Oireachtas then he is in, and, if he is not, he is out. The application of that principle in any particular case is a matter for the people concerned. That is the general principle.
Is it conceivable that a member of a board could have a State secret and confidential information affecting the State?
It is quite conceivable. Take, for instance, the Chairman of the Industrial Development Authority, who would be an official covered by the Bill. He would from time to time, I am sure, have very valuable information.
He is covered?
I am speaking of those people who are not covered.
The Senator is right. We are taking it that, as a rule, these people who are not covered would not have this information in any case.
I would not imagine that they would.
Perhaps the Minister might be able to look at it more closely before the next Stage?
We will look more closely at the particular set-ups and types of board.
Perhaps the Minister would be able to give us specific rules? A board like Bord Bainne gets 90 per cent. of its funds from the State but there are other avenues such as gifts, levies, or otherwise, of getting funds. The same applies to the Agricultural Institute which, again, is mainly remunerated by the State but yet has other ways of getting funds. So, perhaps I will withdraw the amendment and the Minister may look into it.
Amendment No. 4 not moved.
Amendments Nos. 3 and 4 were taken together. The House was given to understand that the two amendments were taken together.
I can withdraw and I shall re-table the amendments on Report Stage.
Amendments Nos. 5, 7, 8 and 11 may be discussed together. The House should understand now that we are taking these four amendments together.
And we can take separate decisions, if necessary.
I move amendment No. 5:
In page 4, to delete subsection (3). This amendment proposes to delete subsection (3) of Section 2. That subsection reads as follows:
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.
Since the Second Stage of this Bill I have given a lot of consideration to this subsection and I have discussed it with a number of people, both lay and legal, and I remain convinced that this subsection is unconstitutional, that it is dangerous, objectionable, and that it indicates a dangerous trend in ministerial or, should I say, Government thought on criminal law and court procedure in general. I say that it is unconstitutional because it removes from the court and gives to the Minister the duty of discharging a judicial function, that is, of deciding whether a certain piece of evidence is one thing or not. Heretofore, the court, and the court only, could decide the meaning of evidence and could come to a judicial decision on it.
It may be that it will be very many years before the constitutionality of this subsection is decided by the Supreme Court, if it is ever decided, if the Bill becomes law, but I say to the House that if this subsection remains in the Bill after it has been signed by the President, it will provide a very dangerous and undesirable precedent for future Ministers introducing legislation.
We all know that it is a golden rule in the criminal law that an accused person is presumed to be innocent until the contrary is proved and until all relevant ingredients for the offence with which he is charged have been proved to the satisfaction of the court. This subsection proposes to take that right away from the accused person and to give to the Minister the sole right of determining one of the most serious ingredients for the offence with which he is charged. It is worse than that because it gives the Minister power to do so retrospectively.
The Minister very fairly agreed and conceded that point on the Second Reading. It may be that a person was in possession of information on 1st January last which he, or indeed any reasonable person, might consider not to be secret or confidential. Then, on 1st November, the Minister may sign a certificate certifying that the information is secret and confidential. That is the end of it and the court may not inquire into it, nor can the accused person adduce arguments to prove it is not secret or confidential.
I might give some examples of where this thing could lead to. Under the customs laws, it may be an offence to import butter into the State but the State must prove that the commodity imported is butter, and if the accused person can prove it was not butter he was bringing into the State, that is the end of it. It is, as we all know, an offence to harbour poteen.
A serious offence.
It is a serious offence in Dáil Éireann but not in University College, Dublin. However, it must be proved, beyond yea or nay, that the liquid the person has is poteen and the accused person can produce an analyst in court to say it was not poteen at all but some other liquid. If he satisfies the court to that effect, that is the end of it, but if we are to proceed on the basis of this subsection, the Minister or the Attorney General can produce a certificate to the effect that the commodity was butter or that the liquid is poteen, and that is the end of it.
The same could apply in the Road Transport Act. It is an offence under that Act to drive a motor vehicle while drunk but it is a matter of proof in open court as to whether or not the person was drunk at the time he was detected driving the vehicle. The Garda can produce medical evidence or they can give evidence themselves; the accused can produce medical evidence or can produce evidence from other sources and it is a matter for the district justice to make up his mind whether or not there is an offence.
If this trend in legislation goes on, an accused person might be confronted with a certificate from the Minister that he was drunk at the time he was driving and there is nothing he can then do about it. The same could happen in a case of dangerous driving. The Minister may decide in some future legislation to put in a section providing that a certificate from the Minister saying that a certain type of driving was dangerous was conclusive and nothing the accused could do could alter it.
I cannot see any good reason for this section unless it is for the convenience of the prosecution and that is really no excuse for it. Or perhaps it may be an impatient, irritable attitude on the part of the Minister or his advisers to a certain type of person. I think it is abundantly clear this is a very far reaching sub-section. It was not thought necessary in the 1911 Act or the 1920 Act. Those were sterner times. In 1920, the Government which passed that Act had just come through a world war and spying and spies must have been fresh in their minds. Yet they did not think it necessary to put in this very far reaching sub-section.
The Minister, in his Second Reading speech, if I interpreted him correctly, stated there was nothing new in this sub-section and I think he stood or fell by that assertion. With the greatest respect to the Minister, I say there is everything new here. Senator Lindsay asked the Minister on the Second Reading to look into the matter and produce authority for that statement. With the greatest respect to the Minister and his advisers, I say that when the Minister asserts there is nothing new in this sub-section he is obviously confusing two things—privilege and proof.
It is true that down through the years if a Minister or an official of State were called as a witness in a court case and asked to produce a document or to give evidence they could refuse and if the Minister or the official said such a thing was not an offence and claimed privilege, the Court accepted that statement and the Minister or official was not obliged to give evidence or produce documents. However, I do not know of any case where the Minister could go and say: "I will not produce the document or give you the evidence but here is a general statement covering the point and you must accept that."
The Minister is asking the House to give him power to say to the Court: "You must take my word that so-and-so is so-and-so and that is the end of it." Privilege is very different from proof. What I am trying to say is that privilege has always been allowed but here the Minister is going further. He is asking us to give him authority to say to the Court: "I will give you the information and you must take it as proof." I can see from that a state of affairs arising where the Minister, before this Act was passed, went into Court and was asked to give certain information and said: "That is not in the public interest," and the Court accepted his assurance, that was the end of it and the particular point would not be proved. If a conviction depended on that point the defendant would be acquitted.
Here, however, the Minister is seeking authority from the House to withhold the information but still to give him power to direct the Court to take the matter as proved. I say that is very dangerous and I say there is no precedent for it. I repeat Senator Lindsay's request to the Minister to give to the House his authority for saying that there is any decided case or statute law to bear out his argument.
In the Second Reading debate also, the Minister made the point that it was necessary to put in this sub-section because it was undesirable to disclose to the court the secret information which is the subject of a charge. With respect, I say to the Minister that sub-section does not relieve him of the obligation of disclosing to the court the information in question. The sub-section says "a certificate given by the Minister under his seal that any secret official code word or password or any sketch, plan, model, article, note, document or information which is secret."
The information must be contained in the certificate and of course it must be read out in court and must be handed into the court, and if the information were not set out in the certificate it would be meaningless and useless to the court because the court would not know otherwise whether it was a case for summary jurisdiction or an indictable offence as set out in Section 9 of the Bill. Therefore I repeat that the information must be set out in the certificate, that it must be made known to the court and to the accused. Therefore, it is no help to the Minister to say that the subsection will prevent the information from becoming public. There is not much further I wish to say at this stage beyond saying that it is a dangerous subsection, that it will create an objectionable and a dangerous precedent.
I am sorry that Senator Fitzpatrick feels as he does about this subsection because I have no deep and dire motives in putting it into the Bill nor do I wish to initiate or inaugurate any dangerous trend. In fact, it is really only put in to make the Bill work. I want to stand fast on what I said that, in effect, we are making no change whatever in the law in this regard. Senator Fitzpatrick asks me why this section was not put into the Acts of 1911 and 1920. The simple answer to that is, as I hope to show shortly, that it was not necessary. They did not have to put it in. If it was necessary, they would have put it in.
Senator Fitzpatrick says that in his opinion this subsection is unconstitutional. If it is unconstitutional, Senator Fitzpatrick has nothing to worry about because the first case taken under the Bill will be thrown out and that will be that. Therefore, that being so, we can forget about it.
It is rather an uneconomic way of going about it.
It is a very expensive method indeed.
I think Senator Fitzpatrick cannot have it both ways. He cannot fight about the insertion of the subsection and at the same time tell me that it is unconstitutional. He also speaks of taking away a right from an accused person to defend himself on this point and of giving it to the Minister. Again, I hope to show that that is not so. We are not doing that.
At the moment, under the Acts of 1911 and 1920, it is an offence to disclose any official information. No element of secrecy or confidence enters into it. It is an offence if you simply disclose any information which you got as a public official. It does not have to be secret or confidential. All this subsection does is to permit the Minister to certify that it is secret or confidential. Therefore, in fact, there is no change.
We are now only permitting the Minister to certify something that is not necessary at all to be proved at the moment—so we are not taking anything away from anybody. I think that is crystal clear. Another thing I want to point out to the House is that we are dealing with public servants who have public information. As I have said, there is an onus on them not to disclose anything. That is the broad principle on which they operate. The very basis of their career and profession is to be discreet, to have integrity and not to disclose information which comes to them by virtue of their position. We should have chaos if anything else prevailed.
Before subsection (3) can come into operation at all, some public official must have disclosed something and that is the real nub of the offence— the disclosure of official information. Subsection (3) is purely a mechanic thereafter to establish whether or not that information was secret or confidential. It is the disclosure that is the real thing. The real elements involved in this sort of case will be—(1) whether information was disclosed, (2) whether the person was authorised to disclose it or (3) whether he did so in the course of his official duties. Those are things that will be open to be decided by the court.
The only thing at issue, then, once a disclosure has been made, is whether the appropriate authority to decide whether that information was secret or confidential is the court or the Minister. I say that in all common sense it must be the Minister. Only the Minister with all the knowledge he has of the affair can be in a position to decide whether or not that information was secret or confidential. As I say, the real issue will be whether the information was disclosed and whether the person was authorised to disclose it. It is only at that stage, when these things are established, that the Minister will be entitled to come and say: "Here is a public official. Despite all the solemn undertakings he gave and all the rules of his profession he has made a disclosure of public information and I am certifying that that information is secret and confidential."
In that sense, it must be secret or confidential or expressed to be such when he was disclosing it.
If there is no doubt about it, what is the necessity for the certificate?
Because occasions will arise from time to time when the disclosure, such as it was, was bad enough but its publication in open court and disclosure to the world at large would be disastrous. In these circumstances, the Minister would be compelled to certify to the court that the information was secret or confidential and that would be the end of the matter. That has always been the way.
Does the Minister conceive that the information must be set out in the certificate?
No, I do not—not the information itself.
It is no help to the court, then because Section 9 deals specifically with one type of information—relating to armaments and so on. How is the court to know, if the information is not set out in the certificate, whether it is information which comes within Section 9 or some other information?
I am saying that the certificate must specify or indicate what is secret or confidential but the contents of the document need not be disclosed. It need only specify for instance, that document XYZ, issued by the Department of Defence on a particular date is secret or confidential. But it does not have to specify what was contained in the document. If I could persuade the House to agree with me that we are making no change here I think I would be a long way towards convincing Senators to let the subsection stand as it is.
I am sorry if I repeat this but I think it is important. The present position is that a person commits an offence if he discloses official information whether it is secret or confidential or not. We are now changing that and we are saying that there will be an offence only if the information disclosed is secret or confidential. Then, as corollary to that, we are entitling the Minister to certify that it is secret or confidential or it is not. So that, in effect, we are making no change.
Do I understand the Minister to say it is not necessary to set out in the certificate the information that is the subject of the charge and that it is merely necessary for the Minister to certify that secret information has been disclosed, unnamed and unmentioned secret information? If that is the meaning of the section, it is altogether outrageous. It would be utterly impossible for a person to defend himself if he did not know the information which he was charged with disclosing.
My concern on this Bill is for civil servants who, as salaried workers, are among the people I represent here. I would ask the Minister if there was consultation with the civil service on this Bill. That being so, I would ask him what was the type of consultation and what was the medium of consultation.
The civil service organisations were consulted. There is an understanding, I believe, to the effect that they will be consulted in all matters of this sort. This Bill was sent to them in the normal way and cleared by them.
And the draft that went to them contained subsection (3) of Section 2?
I assume so.
My information is to the contrary.
That is a new factor.
Would the Minister undertake to look into that before the Report Stage? I understand that the Civil Service organisations did not see this subsection until this Bill appeared in printed form so that the Minister has not had the benefit of any representations that the Civil Service association might like to make about this sub-section——
If I may interrupt the Senator, the Bill has now been in circulation for some time. It has been debated and passed in the Dáil and it is rather absurd to suggest now that the Civil Service associations did not know about it.
The Minister said it had been cleared by them.
That was my understanding.
I should like to ask the Minister another question. I think that he has been repeatedly asked about this. He gave in the Dáil as his authority for this legislation the Cammell Laird case and the Auten v. Rayner case. Has he any other authorities?
There is a very good summing up of the law in this whole matter in the judgments given in the Rose Tattoo case by Judge Davitt and Judge Dixon. If any Senator really wants to carry out any scholarly investigation of the law he would do well to begin with these judgments where practically every existing authority and judgment of importance is referred to. One of the points that emerged from both judgments is that the law in this matter, in regard to the certificate of a Minister being accepted by the Courts down through the years—and both judges have stated it—is the same in criminal and civil cases except in one respect, in regard to criminal cases.
The Minister in the Dáil indicated in answer to a question that he was standing on the principle of the well-known Cammell Laird case, and was endeavouring to write this principle into the Bill. Does he still stand on the Cammell Laird case?
I am not going to be cross-examined by the Senator.
I can only assume that the Minister is still of the same opinion as he was when the Bill was going through the Dáil and when he relied mainly on what was given in the Cammell Laird case. The Cammell Laird case was a civil case and the other case which I mentioned was also a civil case. Now the position is, as I see it, having read the Dáil Debates, having listened to the debate on the last day and to the discussion here, that the Minister appears to be standing pat on the idea that he is merely writing the existing law into the statute. I think he has gone no part of the way towards proving that position. If he will look in particular at the Cammell Laird case, which the lawyers agree is the best statement of the question of privilege; it is specifically stated that the law in regard to civil cases only is being dealt with and that where a person's life and liberty is at stake, the law is not necessarily the same.
Did the Senator not hear what I said about the Rose Tattoo case where it is specifically stated that the law in relation to civil and criminal cases is the same, with one qualification?
If we accept that——
Do not accept my word. Read the judgments to which I refer.
Even if we accept that there is no difference between civil and criminal law in this respect, even if we do go with the Minister that far, surely what the Minister is proposing now goes much further than existing law in bringing the decision out of the courtroom into the Minister's office? Surely that is not the position that exists at the moment in regard to criminal law. Surely the practice has always been that whereas, even though it is recognised in civil cases that a Minister's statement——
——and criminal cases.
Even if we go that far, that a Minister's statement is accepted in open court by a judge and the judge will not go behind the Minister's statement, we are doing something more in bringing the matter from the court, removing from the judge the decision of accepting that statement or not?
No. The certificate is handed in in court. The certificate is the thing that goes to court. It is still in court that the process takes place.
Surely the law at the moment is that not only that the evidence must be given in the court but that the court may ask for the attendance of the Minister?
The position at the moment is that subsection (3) deals exclusively with the secret or confidential aspect of the information. At present, the information does not have to be secret or confidential, so what is all the argument about? Subsection (3) now merely entitles the Minister to certify that the information is secret or confidential. At the moment there can be offences without the information being secret or confidential.
My point is: why is the Minister not content to go into court and give evidence which the judge will take as conclusive that the matter disclosed, the document or the oral information concerned, is secret and confidential?
Will the Senator answer the point that I am putting specifically to him?
That point has nothing to do with whether the matter is decided in open court. Why is the Minister not willing to go into court and claim privilege in court?
The Minister sends the certificate which is the same thing. I have explained the whole basis for the certificate. Only the Minister is in a position to know what is secret or confidential and so he sends down the certificate or his official goes to court and hands in the certificate.
I accept—and the courts have accepted—that the Minister is the best judge of public interest. The whole concern is not about the case where the Minister gives a certificate that something is secret and confidential which actually is so but where he gives such a certificate and a reasonable person might doubt that it was secret and confidential; a case could arise where a person has got information that is not stamped and about which the person is not warned, and that information is disclosed and the disclosure is admitted. The Minister says disclosure is the essence of the proof. What I am concerned with is the case where the disclosure is admitted but the defence is that the person had no reason to believe he was committing a breach of the law at the time. Why is the Minister not prepared to go into court and face the judge and there to make his statement, make an affidavit in the court to the effect that it is secret and confidential?
The Minister is giving a certificate; it is the same thing.
What strikes me about this subsection is this. The Minister just now referred to the Irish judgments. He did not give us that reference on the Second Stage and he did not give it now until it had to be dragged out of him with some difficulty. When I read this at first, it seemed to be clear that it was possible for the Minister to come into Court with a certificate that something which had been disclosed was secret and confidential and to give that certificate in spite of the fact that the document itself was not expressed, at the time it was communicated to the person charged, as being secret and confidential. He has just resisted any amendment to the section which would make it clear—although he says it is clear— that the document must be expressed on its face to be secret and confidential. He has said just now the Minister can use the power in this subsection retrospectively. His further contention is that this power existed already. If it does exist already, why put it in here? British Ministers have not got this power by British statute. Is not that correct? I think it is British common law that gives them the power.
British Ministers have not got this power because they do not need it. They do not have to prove that information is confidential for its disclosure to be an offence. As regards the Irish judgments, I did refer to the Rose Tattoo case in the Dáil. I am sorry if the Senator was not aware of that.
I am sorry. I did not read the Dáil Debates on the Bill. But is it not extraordinary that the British Ministers with their responsibilities do not need the power that we need with ours? I cannot understand that. I have been following this kind of thing closely because I have been in politics pretty well all the time. Have there been many cases taken in this country since 1922?
One, under the Official Secrets Acts of 1911 and 1920. In other words, in the last 40 years, including certain periods of turbulence and disobedience—put it in its mildest form—only one case was taken and, as a matter of fact, at a period, when the main Opposition Party was opposed to the very existence of the State, the Ministers of the State did not know they had this power the Minister now says they had. They did not know, never adverted to it, and only one case was taken. If that is so, what is the necessity for putting in a subsection of this kind which excites people to genuine uneasiness? If it is common law in England, then we have it—is not that right? If the Minister's purpose is to take the British common law and write it into our statutes, he is undertaking an enormous task. I know the Minister is young, energetic and intelligent but, it would take an immensity of youth, energy and intelligence to take all the British common law and write it into Irish statutes. It is not worthwhile, quite foolish and, if that is the case, why does he want to put it in? I cannot understand that for the life of me.
This Bill combines official documents which are not secret and confidential and which are in the hands of civil servants with disclosures or taking steps which would be prejudicial to the safety of the State. It is a usual thing that when Ministers want to do a small thing, immense power is taken. Why does the Minister want this power? I think he is confusing the question of the Minister refusing to disclose a document in the course of a case on the ground that it would not be in the public interest to do so. He is confusing that power with a new power which he is taking here which is to prove the case against an accused person by a ministerial certificate. Is not that what he is doing here? The case has been proved here against the accused party by a ministerial certificate into which the court cannot inquire. I think that is absurd. The Minister has several defences. One is, he is doing nothing. The other is that whatever he is doing, he has the power already and without this at all he has the power. If that is so, why cannot he go ahead?
Similarly, if people who have much more complicated problems than ours have not got this power, why does he want it? And, if we have had only one case in all the circumstances of the last 40 years, surely this is quite an unnecessary operation and it puts into the hands of Ministers much more power than they ought to have.
The Minister should not be in the position that if a document is disclosed in the month of January, 1963, he can come along in the month of November, 1963 and certify that document to have been secret and confidential and preclude the court either from discussing whether it was secret or confidential or to what degree it was secret or confidential with a view to imposing a penalty. I think that is quite an absurd idea and, of course, the Minister is prepared to go to all kinds of lengths.
He took Senator Fitzpatrick to task for daring to say this may be unconstitutional and brushed him aside on the basis that if you say a section or sub-section is unconstitutional you should sit down. The Minister is not now in the L. and H. Society of University College. This is a different place. You cannot get away with that nonsense. You can argue in this House or in the other House—anybody can argue it— that a particular provision is unconstitutional and, having said that, you can go on and argue the merits of the case. Everybody knows that.
The Minister's whole position is extremely bad. He told us just now he can exercise these powers retrospectively. He told us on the last occasion, 14th November—column 1388 of our debates: "There can be no element of retrospection with regard to stamping or expressing the information to be secret or confidential." I said: "It must be on the face of the document?" The Minister said: "At the time".
I still stand by that.
Then the Minister is sitting not on two stools, but seems to be sitting on three or four different stools and I think he has collapsed between them all.
I should like to make two or three points. The Minister has made a big point of the fact that it is not now necessary to prove that information is secret or confidential, that it is an offence to disclose official information. Under the 1911 and 1920 Acts, the information must be official and the prosecution must prove that it is official and there is no provision in the 1911 or the 1920 Act for doing that by a Minister's certificate.
That is not my point.
No, but it is my reply to the Minister's reply. I should like if the Minister would be good enough to clarify what exactly he says the Rose Tattoo case is his authority for. Does he say the Rose Tattoo case is his authority for saying that a certificate has in the past been accepted by a court as conclusive proof for necessary evidence in a criminal case? I should like the Minister to deal with that point when he is replying.
I missed the point.
I should like the Minister to say what exactly the Rose Tattoo case is his authority for. Does he say it is his authority for saying that a certificate has been accepted as conclusive proof for necessary evidence in a criminal case? I should also like the Minister to clarify the position—because I do not think he is clear in his own mind at the moment—whether or not the certificate he proposes to give in court must contain on its face the information?
I said it must not.
With respect, then I say the thing is absurd and does not mean anything. How is a person to defend himself against a charge of disclosing official information if he does not know what information he is alleged to have disclosed? I ask the House, in the name of common sense, to say how could anyone defend himself against a charge of that sort?
Is it not very remarkable that the lawyers who support the Minister have not given us any benefit of their advice and experience of these cases?
They have even left the House.
They have left the House, in case of accident.
They are able to look after themselves.
They are, indeed. They run away.
They are fully satisfied with the information I am giving. The only point I want to make in reply to the specific question is that I quote the Rose Tattoo case as an authority for the fact that the principle accepted by the courts in this regard is the same in criminal and civil cases, with one exception in criminal cases, and I am quoting the Cammell Laird case, the Auten v. Rayner case and the Rose Tattoo case as authorities for the fact that the courts have always placed upon themselves this discipline of not inquiring or not going behind a certificate given by a Minister. I am told here this is unconstitutional, that we do not dare take this power away from the courts. I have quoted this case as incontrovertible evidence that down through the years the courts have said they do not want this discipline placed on them, that they realise that they are not competent in this matter and that they rely on the Minister of State and his certificate. That is all I am putting in the Bill and I have quoted these authorities in support of it.
The Minister says he is trying to put into the Bill what these authorities say has always been the law. Referring to the judgment of the Lord Chancellor in the Cammell Laird case he says that certain conditions must be fulfilled and insists there be an affidavit from the Minister to the effect that he has gone into the question personally.
That is in the sub-section.
It merely says that you give it under your seal.
This was altered as a result of a request by Deputy McGilligan and it was made clear that the Minister must give this information himself personally and not through the medium of any official.
I agree that the Minister did make that change in the Dáil. It is to be a Ministerial decision but is the Minister prepared to put in the other safeguards which were laid down clearly in the Lord Chancellor's judgment?
Is the Senator prepared to put down an amendment? If he does, I shall sympathetically consider it on Report Stage.
I will do so.
Is the Minister telling the House that in the Rose Tattoo case the judgment was that the Minister's certificate was taken into consideration in appraising the guilt of the accused, or did it deal with the non-disclosure rather than the disclosure of information?
I have quoted the case as my authority for saying the courts, down through the years, have always acted on this principle and have imposed discipline on themselves. I have quoted the authority to refute the argument that Senators have been presenting. The courts never wanted this power and down through the centuries have always disciplined themselves in this way.
I have argued that these things should be done in court rather than in the Minister's office. I accept it is the Minister who comes to the conclusion but I would suggest he should do it in court where a judge can enquire of the Minister what preliminaries led him to his conclusions.
I have consulted lawyers of very high standing and I am told that the courts have never admitted the principle. It is not the law that an accused person can be convicted on a Minister's certificate and the Minister has not given us any information to tell us it is the law. It is a bad law. It is very bad from every point of view. It is not the law at present either in England or here. I have the highest authority for saying that and the Minister has done nothing at all to gainsay it.
I want to support the case made against this subsection because it is part of the general tendency to write into the statute books a law that can be used for purposes far beyond what was intended at the time. In approaching this, I think far too much stress has been laid on civil servants as though they were the only people likely to become affected. In point of fact, civil servants are the people least likely to be affected because first of all they are subjected to Departmental discipline. On the other hand, those who receive confidential information are equally liable under this Bill. Even those who try to get information that might be regarded as confidential are guilty of an offence under Section 4.
More important still, all members of commissions, committees or tribunals appointed by the Government for the making of inquiries all come in under this and those people are not subject to Departmental discipline. Therefore in their case the decision is either that they go free or that they be taken into the courts. The civil servant can be disciplined within the Department but members of boards cannot and the decision lies with the Minister whether to take them into court or not.
Another important thing that has not been aired is that the whole expense of the trial, no matter how flimsy or unjust the charge may be, will have to be borne by the defendant. All those matters make the granting of such powers anathema to any concept we may have of democracy. In England no such powers exist; in Belgium, in Holland, in Denmark—all small countries in the Europe we hope soon to join—there would be revolution in Parliament if any Minister proposed to take such powers.
Where does the Senator find that?
I have consulted my authorities and that is the best information on it. Finally, under the penalties section, what happens if the Minister, in his certificate, does not give the offence. The Minister may say: "This is confidential official information," but how can the court decide under Section 13 what penalty should be imposed? The section says it shall be a fine not exceeding £100 or imprisonment for a period not exceeding six months or both. How can they decide between the fine or the imprisonment? It seems fantastic that there is no means for the court to find out what penalty to assign.
I do not think the Minister explained how it is proposed to get over all the difficulties the courts will find themselves in if the information is not set out in the certicate. I should also like to ask the Minister whether he has been able to find any criminal case, either in this country or in England, where the Minister's certificate has been accepted as conclusive proof of necessary evidence. That is a very straight question.
On a point of information, will the Minister tell me whether this section means that the certificate shall be evidence that the offence has been committed or whether the certificate merely gives evidence of the fact that the offence with which a person is charged was the disclosure of secret or confidential information? The Minister merely certifies the information in respect of which the person is charged was confidential, not that the person charged with giving the information did give the information to an outsider. It is not evidence of the person's offence. It is merely evidence that the information in respect of which he is charged was confidential information. It is merely clarifying the offence with which the person is charged.
The Senator is absolutely correct. The certificate of the Minister may refer only to the secret or confidential nature of the document.
If everything else is admitted except that the information was secret or confidential then the certificate supplies the one piece of the jig saw necessary for conviction. Is that not so?
It robs the person of the defence that the information he disclosed was trivial and not confidential.
No, it is not trivial.
Ignorance of the law never constitutes an excuse for an offence. Is that not what the legal people always tell lay people?
I should like to draw the attention of the House to Section 10. Subsection (1) provides:
Where a person is charged with a contravention of section 9, the fact that he has (whether within or outside the State) been in communication with or attempted to communicate with a foreign agent or with a member of an unlawful organisation shall be evidence that the act in respect of which he is charged has been done in a manner prejudicial to the safety or preservation of the State.
The next subsection goes on to say——
We are not there yet.
It arises out of the argument. The next subsection goes on to say that if the person charged goes to the address of a member of an unlawful organisation, whether that address be a hotel or a private house, he shall be deemed to have communicated with him, unless he proves the contrary.
That is a different point.
No. It is arising from and following it up. The three arise together.
- Ahern, Liam.
- Boland, Gerald.
- Brady, Seán.
- Brennan, John J.
- Browne, Seán.
- Connolly O'Brien, Nora.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan, Thomas P.
- Hayes, Seán.
- Hogan, Daniel.
- Killilea, Mark.
- Lahiffe, Robert.
- McGlinchey, Bernard.
- Moloney, Daniel J.
- Mooney, Joseph M.
- Nash, John Joseph.
- Ó Ciosáin, Éamon.
- Ó Donnabháin, Seán.
- Ó Maoláin, Tomás.
- O'Reilly, Patrick.
- Ó Siochfhradha, Pádraig.
- O'Sullivan, Ted.
- Ruane, Thomas.
- Ryan, Eoin.
- Ryan, Patrick W.
- Ryan William.
- Sheldon, William A. W.
- Yeats, Michael.
- Butler, John.
- Carton, Victor.
- Crowley, Patrick.
- Davidson, Mary F.
- Desmond, Cornelius.
- Dooge, James C. I.
- Fitzpatrick, Thomas J.
- Hayes, Michael
- L'Estrange, Gerald.
- McAuliffe, Timothy.
- McDonald, Charles.
- McGuire, Edward A.
- Mannion, John.
- Quigley, Joseph.
- Quinlan, Patrick M.
- Ross, J. N.
- Stanford, William B.
I move amendment No. 9:
In subsection (3), page 4, to add at the end:
"provided that in the case of a commission, committee, board, or tribunal set up by the Government or a Minister, the material concerned had previously been so certified by the commission, committee, board, or tribunal concerned, and the period of such certification had not expired".
I think in fact we dealt with No.9. If you do not put in the word "board" in No.3 how are you going to do it in No. 9?
These amendments fall together.
Amendment No. 9 stands. It is simply concerned with the certification of the proceedings of commissions and tribunals of inquiry like the Commission on Higher Education——
I beg the Senator's pardon. He is quite right.
—the Commission on Vocational Education and all such commissions together with various tribunals and inquiries. Amendment No. 3 which we have just discussed is an amendment seeking to add the word "board". I want to safeguard here the very essence of the usefulness of committees and tribunals which lies in the general public's confidence in the knowledge that the bodies, once appointed, are completely free from Ministerial direction or influence. They sit as the present commissions sit. They conduct their own affairs and at the end they make a report to the Minister concerned.
I want to ensure that any certification that has to be done about some material that has been submitted to them and is regarded as confidential and should not be disclosed, should be done by that body as one of its own actions. Otherwise, if they do not do it, who can do it? The Minister is not in the position of being generally a party to the various discussions and meetings that have taken place. Neither has he any officials who are in that capacity and, even if he had, they are in a different capacity when they return to service within his Department.
Who, in the Minister's Department, would turn to the Act, sit down and go through all the proceedings and decide to classify some as being official information and therefore coming under the Official Secrets Act, and others as not being official information? There is no official in the Department who would have the necessary background or even the necessary time to go through everything and decide what was official information and what was not. Consequently, I am asking as a very minor concession here, that the commission should be left in charge of its own house. It is placed in charge of its job by the Minister when he constitutes it. That it the only reason why commissions enjoy the public standing they have at the moment and if we undermine that and provide that the whole classification will be performed by the Minister rather than the commission concerned, we are setting a very dangerous precedent and after that it might be as well to abolish all commissions and henceforth be completely ruled by civil servants and let us have nothing but Departmental inquiries into everything into which it is necessary to inquire.
I am afraid I cannot see what difficulties the Senator has in this regard. Everything I have said in our previous discussion applies here also. The information must be of a certain sort; it must have been disclosed without authorisation and this certification by the Minister should apply to it just as it applies to any other information.
"Public office" means an office or employment which is remunerated out of the Central Fund or out of moneys provided by the Oireachtas, or an appointment to, or employment under, any commission, committee or tribunal set up by the Government or a Minister for the purposes of any inquiry.
I gather the Senator is speaking in terms of leaving in the last words?
So, we are dealing with committees of inquiry—temporary committees?
Yes, I take it the Commission on University Education is a commission of inquiry within the meaning of the Bill?
It is very difficult to find what commissions that we had in the past were not commissions of inquiry. The Intoxicating Liquor Commission was a commission of inquiry. So was the Vocational Committee. So were all the others. There is a question as to the official information which they received in that public office. Everything that has come to their notice by way of document or any of the other means of communication or by way of evidence by witnesses present at their sittings is potential material for classification as official information. My query is, who will decide what portions of that are official information and what portions are not?
It would be governed by the definition of the official information in the Bill.
Who will decide?
The Minister will issue a certificate.
At what stage? I do not understand. Who will decide, where?
Surely it will have to be while the material is still fresh. When it comes to the Minister concerned there is the question of deciding what is official information contained in it and what is not. According to the Bill everything that the commission receives is potential official information. Who will decide what is to be called official information and thereby brought under the coverage of the Official Secrets Act or what is regarded as not official information?
If the matter ever gets to court the court will decide what is official information in accordance with the definition given here.
Perhaps I am not making myself quite clear. For the sake of making it concrete, I shall take the present Commission on University Education. Does the Minister agree that according to this Bill everything that comes before that commission is potential official information? All that is needed to bring it under the scope of the Bill is for the Minister to say that the evidence given by, say, University College, Dublin or the evidence given by somebody else is official information. How will the Minister make that decision?
The Bill is fairly specific. It sets out what a public office is. An appointment to, or employment under, any commission, committee or tribunal set up by the Government or a Minister for the purposes of any inquiry is a public office.
Accordingly, we accept that a commission is a public office.
And any secret or confidential information coming to a person by virtue of that public office comes within the definition of official information for the purposes of the Bill.
But it is the Minister who is to give the certificate under subsection (3) of Section 2 that we discussed.
Therefore, the Minister in any particular case has to decide whether the piece of information that is at issue is official information or not.
Only if it comes to court.
Surely we are begging the whole question then because this will all be retrospective classification. The only hope you have in that case is that the members concerned must know what information that comes before them is official and what is not. The Minister suggests now that this decision would be necessary only if there were a court case brought up. So that, ten years afterwards, then, the Minister would have to pore through the files of the commission on say, Vocational Organisation, and see will he give his seal to having that classified as official or not. That is the height of retrospection, which is what we are all fighting against and scared of.
The Senator is ignoring Section 4 which states:
A person shall not communicate any official information to any other person unless he is duly authorised to do so or does so in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the State to communicate it.
The report of the Commission on Vocational Organisation was published long ago and has been authorised.
What about evidence?
Any evidence in the report is published, and its publication has been authorised in accordance with Section 4.
The whole point made by the Minister on Second Reading for bringing commissions within the scope of this Bill was that bodies would then give them confidential information that they did not want published——
——and information which would not find its way into the report concerned.
The report, as we know, contains only a fraction of the memoranda, oral evidence and everything else that has been given and draws general conclusions without specifically stating how the commission was guided to those conclusions. In other words, it may say that such an abuse should be prevented but does not say where it has concrete evidence that such an abuse is taking place. There is a whole range of decisions there which I submit cannot be made as retrospective decisions.
Am I right in assuming that a member of a commission of inquiry may be prosecuted under this Bill, as well as a public servant who is remunerated out of the Central Fund?
That is, a person serving without remuneration on one of these commissions may be prosecuted for the disclosure of information which is certified by the Minister to be secret and confidential?
That brings a person who accepts any such post into a new peril, does it not?
It always has been the way that information disclosed to these commissions and tribunals, and their proceedings, have been regarded as confidential. It would be very undesirable to have it otherwise. We are merely preserving the usefulness of these bodies.
The Bill is much broader than the disclosure of an actual document. In other cases, the conveying of information that can be related back to a document——
And discloses or communicates it orally.
Consequently, I feel that any self-respecting non-citizens, from England or elsewhere, would not dream of sitting on a commission here with those dire penalties hanging over their heads, with their every step being checked and the Secretary of the Department deciding which document is confidential and which is not. Such a commission member is to give up documents classified as official documents. He does not have to give up the 1,001 other documents he receives during the sitting of the commission. Who will make the distinction as to what is an official document and what is not?
I cannot help the Senator any further.
I think this issue is vital. The very existence of commissions is at stake in this and before the next stage I intend to get in touch with some leading foreign members of commissions to find out what they think of this and whether they will continue to serve on such commissions. In any democracy in Europe no such threats are levelled at commission members.
I agree with the Minister when he says there are certain things which should not be published, but we should here add a provision that the members of commissions themselves would be the judges. The last act before handing over the report to the Minister is when commission members decide about the unpublished portions as well as the published portions of documents. They should indicate to the Minister what they want regarded as official information and also the question of the time limit. Even in respect of such commissions as the Atomic Energy Commission, in respect of whom the death penalty might be applied, there is a classification of information and a provision that the members may not be bound after the lapse of time. Such commissions are subjects for the activities of international espionage rings.
Here is the position. The commission sits, people give evidence, documents are scrutinised. Eventually the commission goes out of business and hands over all documents to the Minister. That is the end. Each individual member is bound not to disclose any secret or confidential information he gets while a member of the commission.
Practically all information is labelled secret and confidential in a routine manner. Therefore, every item is secret and confidential.
It should be.
I am sorry, but I feel very keenly on this because I know the value that is placed on commissions in this country and the feeling that a commission is something apart from the Civil Service, something apart from the Minister, and therefore is the only body that can criticise both the Minister and the Civil Service and make recommendations unpalatable to both. It does its work only by virtue of its full independence. Now the most vital question is what documents a commission member may retain and what he may not retain. It is the members of commissions at all times who examine such documents.
They may have a roomful of documents and all these are labelled strictly private and confidential. The meaning of that is that the vast majority of those documents are private and confidential, at least until the commission reaches its findings, and to disclose to the general public the way the trend of the debate is going might give rise to pressure groups changing the whole aspect of the thing, so as a routine matter the smallest clerk of the commission may reach for a stamp and mark all the documents private and confidential. The Minister tells us all such documents must be regarded as official.
Having listened to Senator Quinlan I must say I support him. I think it is very important that if these commissions are set up to inquire into matters such as education or the cause of a fire somewhere or other, it is important that the best men should be got to serve on them. It is also important for those people who sit on commissions of inquiry to know what their obligations are when the inquiry has been completed. If the section remains as it is, a member of a commission might not know where he stood or what he could talk about with safety 20 years after the inquiry had finished.
He does not have to disclose anything. Let us be practical.
He might like to talk about things of the past, about an inquiry he sat on, to his children or to somebody else and I think, as Senator Quinlan has said, a sensible final act for a commission of inquiry would be to tidy its findings and see what it was necessary to describe as secret and confidential.
Where is the difficulty in that? The Chairman gets in touch with the Department who may tell him to regard all the documents as secret or confidential.
Is the Minister prepared to put that into the Bill?
The Bill says "unless he is duly authorised to do so."
It is left loose and in mid-air for twenty years. The Minister asks us to be practical and I think that is all the more reason for clarification here. If that is the way in which we are to approach these things, if we are to leave everything to the Minister, both Houses of the Oireachtas are wasting their time. All we would need is a Minister without any legislative bodies at all.
It is well this should be ventilated but as I see it an odd situation appears to be developing. Senator Fitzpatrick agrees with Senator Quinlan that at some stage a member of a commission may wish to talk to his children. As I understand it, they are trying to defend the commission members and make it clear in the face of all men that a commission is a very important body, that it is sacrosanct. Is not that why the Bill is needed? Nothing could be more conducive to distrust in a commission than that members of such a body would "tittle-tattle" to their children about everything that happens while a commission is sitting. Senator Quinlan is putting the cart before the horse. It is the definition of official documents that matters. The certificate of the Minister is something that need only arise much later. No one has to give a certificate at the beginning at all. It is only if someone who should not have disclosed official information does in fact disclose it and the matter comes to court. What the court is told is: "This gentleman is not to be put in a position of reading to the court something which should have been kept secret, thus having it published to a far greater degree and for that reason the Minister certifies that the document is a secret one which should not be disclosed. That is the evidence in the case. What Senator Quinlan seems to visualise is that when every board, inquiry or commission goes to work someone is going to certify that this is secret and should not be disclosed. That is putting the cart before the horse. Everything that comes before these inquiries is secret. That is part of it. That is the safety of it.
Even after the findings are published?
Do not confuse the issue. If it is published it comes under Section 4. It is not a secret if it is published. Do not try to cod me that you can read that into the Bill because it is not in it. The Bill aims to prevent unauthorised disclosure of information submitted to boards, inquiries and tribunals. If someone in an unauthorised way discloses such information it comes under the Act. That is where the certificate comes in: to prevent further disclosure the Minister signs the certificate.
We found the baby.
The whole point made by the previous speaker was the disclosure of something that is confidential and our whole query hangs on who is to decide what is confidential and what is not.
Information as to inquiries.
I have seen members of former commissions with very interesting reports and submissions submitted by groups. They are purely factual and there is nothing confidential about them and the same groups could have published those statements themselves if they wished, but they were given as submission to commissions and there was a big stamp across them which said: "Strictly private and confidential". Consequently, in the absence of any declassification they remain strictly private and confidential.
Surely the Senator can see that an organisation which prepares a memorandum or document for submission to a commission may be prepared to disclose information that is in the submission? They may be, but it is their decision. It is a different thing if the disclosure comes from some member of the commission who gets the information for the specific purpose of deciding the point at issue in the inquiry. If he decides himself to disclose something there is all the difference in the world there. We must have members of commissions who will respect the confidence of people who submit documents although the people themselves would be free to disclose the document to the world at large.
We assume that it would be an adult commission and that they would be fully cognisant of the reservations of bodies submitting reports. Reports will automatically be held confidential by the commission until the end of the sitting. The commission in the course of taking evidence would have ascertained points by asking simple questions of organisations submitting evidence. When the commission ends the organisation might recommend that documents could not be published for three years or five years after that, and then they might say that they would not mind who got it and it would be classified accordingly. The only offence is in communicating information or even the substance of it unless it is tied in with the main report of the commission which was published. Otherwise it would be an offence to communicate it. As well as that under Section 6, any member of the commission must automatically return to the Minister or the secretary all documents which he received which were classified official information. Everything members received must be sent back. Also they must erase from their minds everything that they heard during the commission. Do you think that important people, men from England and elsewhere, would serve on what might only be described as "Iron Curtain" commissions?
We will not have any of them if they are to be a commission of blather-mouths.
I find this discussion very difficult to understand, particularly the line taken by Senator Quinlan that we will not get anybody of standing, particularly from foreign countries —I do not know why he mentioned foreign countries—unless they are going to be given licence to gossip to their children or to anybody else. It seems to me that a person of standing, any reputable person at all who is asked to act on a commission, as a matter of fact assumes that he could never divulge information to anybody on what took place in the discussions or any information submitted to the commission except what the commission decide to publish. It is just what Senator Sheldon says: "Everything given as evidence to a commission is prima facie secret.” Anybody who thought of giving evidence to a commission about their business affairs or anything else would not dream of doing so if matters he regarded as confidential were likely to be divulged.
Anything told to a commission is prima facie secret before the commission finally breaks up and prepares a report. In addition, it may or may not publish volumes of evidence. I should have thought it simple. Matter published in the report or in volumes of evidence is no longer secret. Everything else bar nothing is secret and confidential. That is the simple, reasonable and intelligent approach. It is also the only approach which the public would tolerate. If you had licence to gossip, if members of a commission could write books about the subject while the commission was operating, members of the public would simply cease to give evidence to commissions as they would not trust them. These intelligent men coming from England or elsewhere, of whom Senator Quinlan talks, would never accept a place on a commission except on the basis that it was confidential. I do not see the difficulty.
I have one question arising out of Senator Sheldon's remarks. He visualises a certificate from the Minister in which information alleged to have been disclosed will not be specified or mentioned. I should like to ask how a certificate which does not contain the information complained of is going to be of use to a court or a help to a court. I asked the Minister this on a previous amendment and he did not explain it to me. I do not think he can.
It would only have to specify that evidence given by Senator Sheldon before a commission was secret and confidential.
How would they know whether it should be dealt with under Section 9 as a serious offence or under Part II as a trivial offence? Answer that.
I am sorry to return to this again but we do not prove our case by exaggeration because as Senator Yeats said the fact is that any member of a commission would know and he exercises his own discretion on what is confidential and what is not.
He does not.
He did not. Certainly not.
At a commission 80 per cent. of the evidence is of a non-confidential nature and this has become doubly important as the practice of publishing the evidence as a supplement to the main report has been departed from due to economy reasons. Now, just using that economy reason alone, the whole bulk of information that formerly would fit into the category of having been published is unpublished and is therefore confidential information within the meaning of the Act—solely for economy reasons. Therefore, the question is this. Up to this, we have had no such penalties hanging over the heads of members of commissions, committees or tribunals.
What is the reason for this sudden departure and the fact that these members must now be subject to a maximum fine of £100 or six months in prison or both? Have there been some grave abuses in the past that have led the Minister and his Department to recommend that those drastic steps should be taken? Moreover, to my certain knowledge, there is not a country in Western Europe that has such provisions. Why, it would bring about the downfall of the Government in England in the morning if they even dreamed of such inroads and such an extension of Civil Service and Ministerial control over commissions, committees and tribunals. I take it, then, there is not the slightest case for this.
We are enacting legislation that may stay on the Statute books as long as the old British statutes that operated until this. Some of them are 50 and 60 years in existence, if not much longer. Are we prepared to allow these powers to stand into the year 2,000 or longer? Are we prepared to submit to what are indignities? Suppose, for example, there is a leakage of information from Telefís Éireann. At the same time, the Board of Telefís Éireann must be capable of a leakage. Therefore, there must be the possibility of a leakage. The information must come out of the board and from nowhere else—information, for example, as to whom the board are thinking of appointing to one of the higher salaried appointments in the country, giving family background, and so on, of the applicants for such jobs. Suppose the information turns out, a week later, to be false and that now it is supplemented by the real information. Such an instance cannot be brought within the scope of the Act. Nevertheless, tribunals, commissions and committees must come within the scope of the Act. I think the whole thing is crazy.
Where did Senator Quinlan get the information that present members of commissions are judges for themselves of whether or not a thing is secret? On what does the Senator base that statement?
I base it on the fact that they exercise their discretion as to what they say or do not say.
Who told the Senator?
Take the Dáil, for instance. There was the case of the Vocational Education Commission. The chairman of that Commission— when being dealt with in a very wrong way by the Minister concerned— thought fit, in defence of his work as chairman and his own work, to go and publish some information about what had happened. I take it that all that information that was published could have been stopped by the Minister under the Official Secrets Act which we are now asked to enact. There are many other examples in the past.
Give us some more examples.
The Most Reverend Dr. Duignan on the Insurance Scheme; the Most Reverend Dr. Browne on the Vocational Scheme. All these were cases where the chairman of an independent commission exercised his independent right to put his independent view before the country and to let the people judge between his independent stand, after the independent recommendation of the commission did not suit the Minister concerned and the document was written off.
Both of them were removed.
Is the Senator now suggesting that members of a commission should now be entitled to disclose anything they like?
That is what he means.
It sounded like that. An earlier argument was that when something happened something would be done. It reminds me of the county councillor who said: "You cannot carry out your road improvements because nobody has been killed there yet."
Senator Quinlan does not seem to know if he wants information disclosed. Sub-section (1) of Section 4 provides:—
A person shall not communicate any official information to any other person unless he is duly authorised to do so or does so in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the State to communicate it.
Surely that covers the point. They can make them, if necessary.
By the people who gave the information.
The Minister alone has the power.
Where is your authority for saying that?
There is a defination of duly authorised.
Surely the Minister can authorise? It is in the Bill.
Would the Senator please read the amendment as I have put it down? All I have asked is that the commission, acting in a full sense of its responsibility as a commission, would at some stage, before handing it over to the Minister for the information of the Minister and in compliance with this Act, indicate to the Minister what was to be regarded as official information and what was not. Otherwise, what is called for is that the Minister must make that decision himself, without the commission having any hand in it. The Minister himself has said: "That is all right. It need not be made if it did not come up in Court." Therefore, the Minister looks with equanimity on being called 20 years after the sitting of the commission to look at the evidence and to decide whether or not he will give a certificate to class the information concerned as official.
This debate is becoming childish.
There is a great deal too much discussion altogether about the members of the commission and the amount of information they would apparently like to convey about evidence and proceedings. I prefer to look at it from the point of view of the man who gives information which he regards as confidential. Whether the information is particularly secret or not does not matter. If I give information to a commission which I should rather were not known by other people then, as far as I am concerned, it is confidential information.
I cannot say that I or such a person giving information would be willing to have a position that a commission would solemnly sit and decide that information, including perhaps my information, can be published. It is no business of the commission. They can publish their report. I think we should leave it at that. The rest of the information was given to them in confidence, perhaps.
I do not think it is any business of the commission to sit down and, in the interests of some historical truth thirty years later, decide that some information can be declassified. I think the commission should stick to their job—hear evidence and publish reports.
Senator Quinlan said that in recent years, for reasons of economy, such minutes of evidence have not been published. Presumably they exist in the form of minutes. If there is confidential material in it, it should not be too difficult to remove whatever stamp is on it at least for research workers in the future. Looking at it from the point of view of a member of the public giving confidential information there seems no reason why the commission should be in a position to declassify these things.
I take it that Senator Yeats is concerned that the information given by him or by anybody else to a commission should be treated as confidential, if he wishes it to be so treated. I could not agree more with him on that proposition. Further, he might wish to extend my amendment and to say: "... the commission shall in all cases regard information as confidential information when the giver of the information requests it." He can go that far if he wishes. But can you not see the logic of the thing?
I am simply asking that the commission who are in possession of all the facts, who have spent months listening to the case should be in the position to decide—and, if you want to, you could put in a proviso that anything the giver of information requests should be held as confidential shall be so held. I am opposed to having the Minister, 10 years after the commission has sat, suddenly deciding: "Such and such report has stated this in writing or verbally, and so on. This does contravene the Official Secrets Act." Therefore, he looks at the information concerned which was contained in a submission by a group to that commission and he then has to decide whether or not that is official. That is the height of retrospection in this case and it is the most dangerous feature of the Bill. The farther we go in the Minister's attempts to elucidate it, the more dangerous the Bill becomes and the more it smacks of absolute regimentation where we are just completely under Ministerial and civil service rule from top to bottom.
I think that the position should be clarified at the termination of the inquiry. If the House takes the view that all information given to a tribunal of inquiry is official confidential information, let them say so. Then the members of the board will at least know where they stand. What I object to is that a person who has served on a board does not know what he may disclose and what he may not disclose.
He knows he may disclose nothing.
He does not, unless it is official information. The Minister can decide to jump on a person at any time without notice.
I think the sensible practical approach to this matter is this. All these bodies should operate in a confidential fashion. Any information given to them should be treated as such by the members. The Senator very wisely points out that the only way they could operate otherwise would be to have complete chaos. A Minister or Government sets up these bodies. Their work in effect belongs to the Government. They are asked to constitute themselves into a tribunal to investigate something and supply a report to the Minister. The work they do is for the Minister and, in effect, belongs to him and when they have completed their work they should go off and forget about all the information they got in the course of it. I entirely agree with Senator Yeats when he suggests that they should not be entitled to preserve documents or other information with a view to disclosing them afterwards, writing books about them and so on.
When their work is done on the committee or commission that should be the end of that for them, as honourable, decent people. If later on they want to make use of some material that was given during the commission, the honourable thing to do would be to write to the Minister saying: "I got such a document from your Department during this inquiry. Is it all right, or am I authorised to make use of it in such-and-such a way?" That is the sensible, practical way of looking at it.
I am sorry to delay the House on this but it all comes back to the question of what is confidential and what is not. In any inquiry you have several groups giving evidence. While the inquiry lasts, it is highly important that the evidence of those groups should be kept secret from one another. It should be treated as top-priority, confidential material. If the defence could get access to the documents prepared by the prosecution, setting out what they are looking for, the others could do a far better job in defending. Consequently, it is the inviolable practice of commissions that such information be kept absolutely secret by the members for that specific purpose——
Not that purpose only.
Immediately the inquiry is over the matter takes on many new facets. Some of the material may be still of a confidential nature and the bodies concerned do not wish it to be disclosed. It may give away trade secrets or something like that. Other bodies may welcome the disclosure of the information they gave. But there is no means here of deciding, at the end of an inquiry, into which category the material falls. I make the proposition that the only group competent to decide that question are those who sat on the commission. They must, and would, bear fully in mind the wishes of the givers of the information as well as its place in the whole framework of the commission.
I withdraw it in the hope that between here and the next stage the Minister will have second thoughts on it and that the Minister will consider the damage this section would do when he hands to foreign experts coming in, a copy of a declaration that they have to sign, which says that every line that comes into their hands and every word they hear spoken may not be conveyed to any member of the public anywhere and if it is, the person concerned may be brought before the court and fined £100 or given six months' imprisonment or both.
That is the longest withdrawal in history.
I move amendment No. 10:
In subsection (3), page 4, to add at the end:
"save that in any case where the Minister has not given such a certificate before the committing of any alleged offence under this Act the person accused shall have the right of appeal against such certificate to a Judge of the High Court who shall have the power to hear any such appeal in camera at the request of any party and whose decision shall be final.”
In moving this amendment I have a certain sympathy with the Minister because, although this Bill is of the utmost importance and contains many vital points, the Minister is trying to bring in a Bill which is practical and we are trying to defend the rights of the individual and still be practical. There is a problem of the balance of the rights of the whole community against the rights of the individual and to a certain extent I feel that some of the amendments which have come from this side of the House are upsetting the balance to such an extent that the individual is so protected that the community itself has no protection. I have tabled this amendment because I have tried in it to give the individual some protection without damaging the rights of the community.
It seems to me that in the debate on the Bill and in particular on subsection (3) of Section 2 there have come out two vital dangers. The first of these is in that the certificate could be given retrospectively, as the Minister admitted.
The second is that, when pressed by Senator Stanford, the Minister said it would be possible under the Bill as it now stands for the Minister to certify something as being secret and confidential which was not in fact secret and confidential. We are assuming of course that we would have an unscrupulous Minister and of course none of us will think in those terms of the present Minister or his Government. That has been made clear by many Senators.
I am thinking in terms of the fundamental concepts that lie in this section. To take the retrospective view point, in practice I am quite satisfied the Minister's certificate would have to be given retrospectively and I cannot see any way round that. It may be that when we are dealing with sketches, plans, documents, notes or articles, they would be stamped secret and confidential on their face but I think in practice it would be quite impossible for someone to say to somebody else: "What I am saying to you now is secret and confidential." There is equal trouble for a Minister to certify in advance that what was being said in every case was secret and confidential.
Therefore, I think the certificate in the majority of cases would probably have to be retrospective and it seems to me we must accept that as being reasonable and practicable. However, the danger comes in where that certificate can be given retrospectively and where the person who is accused under this Act has absolutely no redress, because the Minister has just given that certificate. With that in mind, I have put into this amendment a provision that if the Minister does not give a certificate before the committing of an offence, then the person accused will have the right of appeal to a judge of the High Court against the giving of the certificate.
On the second point, I think a similar danger arises. We have got the possibility—again I am thinking in terms of the distant future—that at some future date an unscrupulous Minister could use the section to certify as secret and confidential something which he did not like but which was not, in fact, secret and confidential, and there is absolutely no redress or appeal against that certificate. The object of the amendment therefore is to provide for an appeal against that certificate so that the loophole that an unscrupulous Minister might have is blocked out.
The Minister tells us he is advised the insertion of this subsection makes no change in the existing law. That may or may not be so. Whether it is so or not to my mind it is bad law and a bad subsection, and the fact that it may have been law for the past forty years does not make it any less bad and does not in any way block up loopholes which may have been there for the past forty years. The fact that we have had honest and scrupulous Ministers is no guarantee that in the future we shall go on having them. I think the Minister should most seriously consider this amendment. All I am asking in it is that the Minister puts himself and his successors in the position, where anyone who is accused under this Act and who is faced with a certificate that something he has disclosed is secret and confidential, has got the right of appeal to the court. I have no doubt myself in the Minister's good faith or that he would misuse this certificate, but I do not know who his successors may be. I would therefore ask him to consider binding his successors in the way in which he himself feels morally bound.
I am wondering whether the Minister would be good enough to have a further close look at the Bill. Quite obviously, any matters disclosed to the Civil Service must be considered a secret. Otherwise, democratic government would be utterly and completely impossible. Unless communications within a Department were taken to be confidential, understood to be confidential whether so marked or not, and unless communications between one Department and another were taken to be confidential and so treated, I think democratic Government would practically be impossible. No civil servant would be prepared to make a frank minute for his Minister or his senior in his Department if he were afraid that at some later stage it were about to be disclosed to the public. Also, unless you have absolute confidence within the civil service itself the parliamentary responsibility of the Minister, Ministerial responsibility as we know it today, would become completely and utterly impossible. Furthermore, all communications to Government Departments, from income tax returns downwards, could not be made with the frankness and completeness they should be made.
As Senator Ross has said, it would be a very good thing if the Minister would have a further look at the matter in relation to his certificate. I do not know exactly how he would phrase it. I appreciate his difficulty but it is very hard to incorporate in a Bill something which provides for every contingency. Perhaps he may find it legislatively impossible. If so I accept that.
The legal position as I understand it at the moment in Anglo-Saxon democratic countries is that all communication whatsoever between the civil service, all communication whatsoever by the public to the civil service and all communication whatsoever at inquiries and commissions are ipso facto confidential. To disclose any part of them whatsoever is a breach of confidence for which a person may be prosecuted. I accept that absolutely and utterly. But assuming that somebody is prosecuted the purpose of the certificate as I see it is that if a person is prosecuted in the ordinary course of events the State must prove everything, that the person disclosed information and again that the information is confidential; I visualise the Minister's difficulty, for sometimes that very proof may in itself disclose a whole file which should be treated as completely secret and when a matter gets to court there should be some way of avoiding that. A dishonest civil servant may get hold of a scrap of a letter and disclose it. The State has proof that he disclosed that scrap of a letter and that it was confidential and to do so it must produce the whole letter or the whole file. That would make the position utterly impossible as far as the protection of confidential information is concerned.
The method of getting over this difficulty in England is as follows. The State has certain rights in legal proceedings whether civil or criminal. If the Minister considers it contrary to public policy then even the very existence of a document need not be disclosed. That is the first exception. Likewise if a document is in existence and is admitted to be in existence it need not be produced in evidence. The court cannot even look at it if the Minister certifies that the document either is confidential in itself or belongs to a class of documents which are confidential. Say, for example, you have a sworn inquiry about something or other. There may be a report by an inspector who holds the inquiry which may be highly confidential. He has got to give the Minister an exact mental picture of what happened, how he found witnesses, whether in his opinion they were honest or dishonest, truthful or untruthful. There may be another inquiry on some simple matter like the acquisition of a labourer's cottage and there would be no secrecy whatsoever about it. The Minister would be justified in refusing to disclose or produce in court the report of the inspector dealing with the labourer's cottage because it belongs to a class of document which it would be contrary to public policy to disclose. Thereby the State protects itself. That as I understand it is the protection in England to-day.
We, I fear, are going further than that in the present instance. If a person is prosecuted for a breach of the Officials Secrets Act it has first to be proved that he disclosed something. That is No. 1. No. 2 is that what he disclosed was secret and No. 3 is that he was unauthorised to disclose it. As for No. 1 and No. 3 they still have to prove it. For No. 2 in lieu of the opinion of the court we are taking the certificate of the Minister.
As I understand it in England, Canada, Australia, the United States and Scotland the position is that the onus is thrown on the accused to show that the disclosure he has made is not confidential. The onus is on him. The Minister however need not produce the document or any section of the document and any witness in court on behalf of the State can refuse to answer any question whatsoever regarding the document. England has gone further in that respect than some other countries. The strange thing is that in any such case the procedure in Scotland is milder than the procedure in England. In Scotland the court will in exceptional circumstances look at the document; in England the court will not look at the document at all. They say "the Minister has certified that this is confidential and therefore we will not look at it at all." In Australia and Canada the legal principles are similar to Scotland. In the United States they go still further because despite the certificate of the Minister the court will in every case look at the document and satisfy itself whether in its opinion it is confidential, in other words whether there are good grounds for the Minister's certificate.
This is a codifying Bill and I would suggest to the Minister that these rules of procedure—which are merely judge-made rules which have grown up in England based on the common law which is based on the experience of people over the centuries—might well be introduced into this Bill so that we would not be dependent on a statute for one part of our law and on rules of court for another part of our law. I do not know whether it would be possible at the present stage for the Minister in this Bill to throw the onus on to the accused as is done in other countries and make them prove the matter. This would protect the Minister, the Department and the civil service by incorporating in the Bill the privilege for these documents which exists in other countries. I quite appreciate that it may mean considerable amendment to the Act. I doubt if having gone to so much trouble in the matter—I am sure that the Minister has devoted his best attention to it to date—he could see his way to do that. If he did he would have a far more satisfactory statute.
I am very fearful, if you substitute the opinion of any individual for something which must be proved in court, that it may lead to the position—the Minister said on the Second Reading that he had been advised to the contrary—that the particular sub-section —Sub-section two (3) I think it is— is unconstitutional. If it is declared unconstitutional your Bill is hanging up without sub-section two (3) and the State has no protection whatsoever. Perhaps the Minister would be good enough to apply his mind to that and consider whether the same system or principles that apply in England would apply here.
I regret that I differ from the Minister's advisers—I am not saying I am infallible—if they have informed him that this Act does not go further. The law here, as I understand it, was similar to the law in England. It was dependent on the last one which I think was the Officials Secret Act of 1911. However, I think it goes considerably further.
The protection there is that the onus is thrown on the people and then the privilege can be claimed. I understand that in England the under-Secretary must swear an affidavit to the effect that he himself or the permanent head of the Department has personally directed his attention to the documents which have been refused to be produced and that in his opinion it is contrary to public policy to produce them.
On this question of Ministers being unscrupulous, and so on, it reminds me of lectures I once did on Political Morality. The lecturer explained all the various devices there are for safeguarding human rights and individual liberty. When pressed, he would outline that in the first place a citizen has the protection of the Constitution and that Parliament cannot pass Acts which are repugnant to the Constitution. He is pressed further and the question is put to him: "Well, if Parliament does so, what happens them?" The answer would be: "Well, of course, the Supreme Court is there in the last analysis to protect the citizens and to see that Parliament does not override the Constitution". Then he is asked: "What happens if you have a corrupt Supreme Court?" At that stage the lecturer always told us: "One revolts." I think that is the situation we are getting into here.
Does that apply to Senator Nash?
If we get to the stage that we have these unscrupulous Ministers behaving in this fashion, the only advice I can give is that we would revolt—provided always, of course, that we were not the Ministers in question.
I was to point out to the House one practical aspect of this matter and that is that a Minister in this sort of situation does not act in isolation. He has advisers—the Secretary of his Department, and so on. Even if he himself is base, corrupt and unscrupulous it would be very difficult for him to get away with this sort of thing in the way Senators seem to think he might.
I distinctly remember recently in the Dáil that the Minister for Finance was accused of cooking some Budget figures. The accusation was put to him that he was deliberately twisting figures to suit his own purposes. Then the Minister for Finance said something that impressed me very much. He said, in effect: "These figures are prepared by my Department. They are stood over by my Department. If I attempted to bring into this House some Budgetary calculations that were dishonest I should be faced with the resignation of the Secretary of my Department." I quite believe that to be the position. I mention it only to indicate that there is no real danger that a Minister of State in the foreseeable future in this democratic country will become so completely unscrupulous and dishonest that he will make this section an instrument of oppression. That is one practical aspect of this matter.
To come specifically to Senator Ross's suggestion, I appreciate his helpful approach and his attitude to the matter. I am afraid, however, he really does not solve the difficulty. The saver set out in his amendment refers to a situation where the certificate by the Minister would not have been given before the disclosure. I explained that this certificate would almost certainly never be given before the information would be disclosed. This certificate would come into operation only when a prosecution had been instituted and when it is a matter of establishing the secret or confidential nature of the information in Court. Therefore, from that point of view, we are back again where we started.
We began with a situation where the information is either confidential or secret in itself or is expressed or stamped as such at the time of the disclosure and then subsequently the certificate is used as a piece of evidence in Court. If the certificate is capable of being brought into court and examined by the judge and discussed in the court, and so on, then it is really of no value whatever and it defeats entirely the purpose which I intended. For that reason, I am afraid I cannot accept the amendment.
Is it necessary, if Senator Ross's amendment is passed, for the documents to be examined by the judge of the High Court? All he asks is that, on appeal, the matter comes before a judge of the High Court. Any judge of the High Court, having regard to the position outlined this afternoon and which Senator Nash has reaffirmed here, acting under English practice—which we take to be practice here—would not examine the documents but only the circumstances and would give a decision based on the circumstances. This does not expose the documents but the circumstances under which the certificate has been given.
Even that might be damaging.
With regard to unscrupulous Ministers, I have no fear whatever of the advent of unscrupulous or corrupt Ministers. As soon as you have a Government of unscrupulous Ministers you have no remedy but the one that the lecturer told the Minister when he was a student, namely, to revolt. What is really wrong about this is not the danger of an unscrupulous Minister but the giving to an individual and his advisers of a particular power which should not be in their hands and for which Senator Ross is now endeavouring— probably in vain—to find some remedy.
As the Minister said, the Minister has his advisers. They are civil servants. They are not corrupt and they are not unscrupulous. They are sincere, industrious and highly intelligent and they believe they are right. They believe they know what is best for me and for Senator Ross and for Senator Nash and for everybody else. If they convince the Minister of that, then they go on and do these things and, when they do, they are much more dangerous than the unscrupulous people.
The real point at issue in this amendment and in this sub-section (3) is not the exercise of the power by a Minister who is unscrupulous. It is that you are giving a power to an individual, advised by people who are to some extent in blinkers because they are thinking of their own particular job and they want that job done without any regard for me, that is, for Patrick Murphy who is an accused person. They have not the point of view of judges. They are not acting on the same set of principles or traditions or the same rules.
What is wrong about this is the giving of that kind of power to put the judges out of action and to give the power to a civil servant, acting through a Minister if you like: that is what is really wrong. What is happening in this Bill happens over and over again. They want to do something. They fill up every hole, crevice—everything. They make the thing so all-embracing that they can hit everybody and anybody.
All this fuss arises about a situation in which—on the Minister's information to us which I am sure is correct and which I accept completely—there has been about only one case in the past 40 years. Yet the Minister is endeavouring to write what he conceives to be the common law of Britain into a statute of 1962. I am advised it is not the common law of Britain. Senator Nash has made it very clear to us now that it is not the common law of Britain. It is a new idea. It is an extension of a principle, probably accepted in England, to another set of circumstances not accepted in England or in other English-speaking countries.
Senator Ross's amendment nullifies what the Minister wants to do. It is much the same as my own amendment to delete the subsection. I should like it accepted but I am sure that in the Minister's present frame of mind it will not be accepted. I should like to relieve Senator Ross of the mistaken view that the only dangerous man is the unscrupulous Minister. The sincere Minister is much more dangerous and he should not have the power.
I should like to follow on somewhat similar lines. In order to attack this subsection and submit amendments to it, it is not necessary to visualise a dishonest and unscrupulous Minister. You could have an honest, stupid Minister. You could have an honest, headstrong Minister. You could have an honest Minister with a particular been in his bonnet. In the hands of any one of them, this subsection would be dangerous.
No, he would have to be dishonest.
He could be fallible; he could be honestly wrong. Every day in the week, people quite honestly come to wrong conclusions and decisions and honestly believe they are correct. Judges on the bench who have taken declarations to uphold the laws and the Constitution, interpret them wrongly quite frequently but they are protected because there is an appeal. There is an appeal from the district justice, from the circuit court judge, from the High Court judge, and an appeal from every court of first instance in the country. In this case we are going to have no appeal from the indivdual who will give the decision —the Minister.
The information which the Minister is going to certify as secret and confidential is obviously information about which there is a doubt. On the Second Reading the Minister agreed that there were three types of information—information which is obviously confidential and about which there can be no doubt; information stamped confidential and about which there can be no doubt and the third type about which apparently there may be two views, one being that it is confidential and the other that it is not. These are the types of information that the Minister is going to certify—not this Minister but Ministers for all times as long as this statute remains on the books—as secret and confidential and there can be no appeal. I think it is unreasonable. The suggestion of Senator Ross, while it does not go as far as I would wish, is the least safeguard we would expect.
Does it not nullify the section?
It does not. It is no answer to say it nullifies the section or that it would disclose the information. I shall repeat, and continue to repeat until this Bill leaves the House, that the certificate must contain the information. Otherwise it is valueless to the court.
The second point I want to make in favour of saying it does not nullify the section is that Section 12, I think, provides that a case under Section 9 of the Act, or any case in which anybody has acted to the prejudice of the State, must be heard in camera on the application of the Minister. It cannot be discussed or get into the papers or come before the public but is held in camera before the judge, the Minister's advisers and the defence. Therefore, no harm can be done. It is a bit far-fetched to say that this is what the courts have been doing for the past 40 years when we are told that in those 40 years only one case has come before the court.
One here, plenty in Britain.
I should like to know what was alleged in that case and what the defence was.
Deputy McGilligan gave a full outline of it in the Dáil.
If there were an appeal here, it would go a long way towards safeguarding the rights of an individual and towards satisfying the people on both sides of this House who are genuinely disturbed about this sub-section.
The Minister, in reply to me earlier, said that if I had any doubts about its being constitutional, that was the end of it. This Bill is of sufficient importance to have it referred to the Supreme Court not so much for the Bill itself but because some members on the Minister's side of the House may think this is a storm in a teacup, that this is a Bill under which a prosecution may only be brought once in 40 years. That is not the important part. It is a new departure; it is setting up a dangerous precedent which can be quoted by future Ministers. We are all looking for precedents and authorities today, something to justify this subsection but nobody can get it. Nobody has been able to produce it.
Suppose some Minister, in five or ten years' time, wants to introduce here a Bill with an equally objectionable clause he can hand up this Bill and say: "It has already been approved by the Oireachtas of this country; there is a precedent for it." That will go a long way to disarm arguments against it. The Minister has not even gone on record as saying this is a particular section for a particular type of crime. He has not even said he disapproves entirely of holding a man guilty without proof. He has not even said: "I uphold the principle that a man is innocent until proved guilty but for this particular type of offence this particular section is necessary." I believe the whole thing is dangerous and that it sounds and reads very badly.
If the Minister does feel that Senator Ross's amendment nullifies the Bill—and looking at the Bill, it does seem to do that because if the Minister comes to the High Court, he is in much the same position as if the accused came to the High Court in the first instance—would he be good enough to consider, when a person is accused of a breach of the law by the offence of disclosing official information, having the onus of proof thrown on to him in his defence and let him establish that it was not secret information? There is plenty of precedent for that—that the Minister's certificate is conclusive unless and until such time as the accused establishes beyond reasonable doubt that it is otherwise.
Senator Nash must not have read the debates in the Dáil where this proposition was put and dealt with fairly clearly by me. I must not have much capacity to establish the point because Senator Nash said some moments ago that this Bill goes much further than existing law. If there is one point at which I have been hammering in order to get it clear to everybody, and certainly to my own satisfaction and that of many people here, it is that the Bill does not go further than existing law. To me, it is as simple as ABC and I cannot see how Senator Nash can overlook this. At the moment the law is that if you disclose the information whether it be secret and confidential or not, you are guilty of an offence. Sub-section (3) is concerned only with giving the Minister the right to certify it.
But the prosecution must prove the information is official.
They must still prove it under this Bill.
Of course they must. They must prove that it is official information; that it came to the person by virtue of his office——
At the moment they must prove everything they allege. Under this Bill, they may allege something and it will be taken as proved.
Under this Bill, all that the prosecution is relieved of doing is proving that the information is secret and confidential. Is that admitted? The subsection takes away from the prosecution the onus of proving that the information is secret and confidential. They do not have to prove that at present because whether the information is secret and confidential or not the disclosure of information as such is an offence. Surely that is clear?
Then why not leave us as we were?
At present the information will then be available to the court and the penalty fixed will be based on what the court learns of that information?
As I understand it, once the Minister certifies it is still official information, then the information is not available to the court.
It specifically states in the subsection that the information in the certificate must specify or indicate——
But the Minister has told me ten times to-day that it need not be stated in the certificate.
Whatever the Minister may say about this, the fundamental issue is that as that sub-section stands the Minister is putting himself above the law. While I am prepared, with the leave of the House to withdraw this amendment, I would reserve my right to bring it up at Report Stage in some other form and I would ask the Minister, if he will not consider my amendment at this stage, would he not give us some assurance that he would seriously consider Senator Nash's proposal that the English or Scottish procedure be written into the Bill in some other form? I appreciate that that is a major task but, nevertheless, there is some vital danger in this Bill as it now stands. I honestly believe the Minister would try to meet us if he could and I am asking him to have another go at doing that and I would at this stage, with the leave of the House, withdraw my amendment, reserving my right to bring it in on Report Stage.
As a practical matter, I would like to suggest to the Minister that he should draw up a form similar to that which is issued to civil servants and present it to all members of boards or councils who are liable under this Bill, when engaged. It would be a safeguard. It would remind them of their duties and liabilities. If the Minister would undertake to do that, it might help in general.
I could not offhand undertake to do that but I will certainly examine the proposal sympathetically to see if we could do it. I would not see any objection to it myself. I think it would be advantageous.
In reference to this section, I should like the Minister to clarify one thing. He is on record now as saying the information alleged to have been disclosed may not be contained in the certificate and he is on record just now as saying to Senator Quinlan that the information must be disclosed in this certificate. I want to know which the Minister believes to be a fact. I think it must be disclosed in this certificate because otherwise the certificate would be meaningless but, if it must be, it immediately knocks the bottom out of the Minister's argument.
As we used to say long ago, Senator Fitzpatrick is a terrible man. I thought that matter was disposed of very simply by Senator Sheldon when he said that the certificate would be in this form, that it would indicate the evidence given by Senator Fitzpatrick at such a tribunal, or the document issued by the Department of Defence relating to atomic warfare, dated 7th July, 1962; that it would specify the information without actually giving the information.
It must contain the information?
Not the details of the information, the disclosure of which would be harmful, but an indication.
I do not know what that means. It means nothing.
Instead of giving the full contents, you would indicate the document in the certificate. Surely, that is clear?
Supposing a person were charged with disclosing the number of military stations in the Curragh. Would the certificate contain that?
If we must get down to this sort of example, to my mind, the certificate in that case would say, "I, the Minister for Defence, hereby certify that the details of our military installations in the Curragh alleged to have been disclosed by Senator Fitzpatrick are secret". That is all.
As soon as possible, could the Minister give a clearer definition of "public office" because we reached the stage in the discussion before tea where the Minister could not decide whether in the case of a board like Bord Bainne, its full-time members were under Section 1 or not —in other words as to the meaning of "public office"?
The Senator must not misquote me. I think the principle is absolutely clear. The only reason why I could not say whether Bord Bainne was in or not is that I do not know the set-up of that board but I am absolutely sure of the principle. It is the application of the principle. I do not know the facts in relation to Bord Bainne which would enable me to decide.
The section says that "public office" means an office or employment which is remunerated out of the Central Fund or out of moneys provided by the Oireachtas. My query was that if a certain amount of the funds—be it a small or a large amount—came from another source, does that mean that thereby the board concerned was not a public office as outlined in the section?
The simple answer is, not necessarily. One would have to see what exactly the situation is. For instance, if you like to get down to that fine point, the Vote for any Department contains appropriations-in-aid but with regard to the fact that Bord Bainne or some such body gets funds from two sources, one of which is a levy, and the other the Oireachtas, I imagine that if those two amounts of money were put into a fund out of which the officials were paid, those officials would not be for the purposes of this Bill remunerated out of moneys provided by the Oireachtas. The Oireachtas would give a grant-in-aid of the general funds of the body but it is clear to me that in those circumstances the officials would not be remunerated out of moneys provided by the Oireachtas. But, in any particular case, you would have to sit down and see what exactly the financial structure of the concern was and then apply the principle as here.
The same principle runs through all the boards that have been set up. In other words, there is no question of its being specified that the grant from the Oireachtas will be used directly to pay the salaries. It simply says there shall be a fund and the board shall discharge its functions.
The Senator is wrong there. There are boards the officials and members of which are fully and completely remunerated directly out of Oireachtas moneys, such as the IDA and the Fair Trade Commission. There are other boards which are completely financed by their own commercial operations. But the principle is clear and it is only a matter of finding out what the facts are in regard to any board and then one can clearly establish immediately whether they come within the ambit of this Bill or not.
I move amendment No. 12:—
In subsection (1), line 17, before "to" where it secondly occurs to insert: "or has reasonable grounds for believing he is duly authorised".
This amendment is concerned with the question of authorisation. The position under subsection (1) is that it is a good defence to a prosecution under this section that a person is duly authorised and in subsection (4) "duly authorised" is defined as meaning authorised by a Minister or State authority or by some person authorised in that behalf by a Minister or State authority.
What I am concerned with here is the question of a breakdown in the procedure of authorisation. The position is that since this Bill was introduced in the Dáil the Minister has introduced several amendments, mainly on Report Stage in the Dáil, which tend to take care of cases where people act in good faith. He amended sub-section (3) of Section 4 which refers to persons who receive information. Originally this read that the person need not be aware that he was receiving information which was in contravention to the Bill. Now it reads that a person must be aware or has reasonable grounds for believing that his receiving of the information was in contravention to the Bill. The Minister has allowed the person who receives official information the benefit of the defence that he had acted on reasonable grounds.
Also in the Dáil the Minister amended Section 7 which concerns people who are in possession of official stamps or dies. Originally the Bill provided that nobody might be in possession of them without lawful authorisation. It was amended to say "lawful authorisation or excuse". In these two cases, concerning the person in receipt of information or in possession of official stamps, safeguards were introduced.
It is equally reasonable that the Minister should safeguard the person who communicates information while acting in good faith. I think that when he made these other safeguards he underlined the fact that if no safeguard is put in in respect of the communication of information, the question of authorisation becomes an absolute one. If the reception of information is safeguarded, if the possession of official stamps is safeguarded, then we underline the question of authorisation in the case of the communication of information.
Let us take the form a person signs on joining the Civil Service, the form I signed close on 20 years ago. In case of any doubt, the civil servant is advised to go to the head of his section. Any civil servant, naturally, if he wants authority for something, goes to the head of his section. Now the position arises if he is authorised by the head of his section to do something and if that section head is not authorised by the Minister, then the civil servant is himself not authorised under Section 4. If there is any defect in the Minister's authorisation or that of the head of the section, the person is not properly authorised. It is a situation we should do something to safeguard. Here we have a civil servant carrying out instructions given to him when he signed a secrecy declaration finding himself committing an offence due to a mistake of his superior. Due to confusion, that civil servant finds himself robbed of the defence that he had believed himself duly authorised and that he was acting in good faith.
Then there enters the question of what is to be the nature of the authorisation. The Minister gave an example when he dealt with the fact that in the Civil Service discretion grows with promotion. He said that a Secretary of a Department might be present when information was disclosed by a Minister to a group, and that he himself would feel himself authorised to disclose that information to another group the following day. I wonder can he? He may feel so authorised but all he would have from the Minister would be a general authorisation——
The Senator is not reading the full section. It goes on: "does so in the course of or in accordance with his duties."
Why then do we need to provide for authorisation at all?
I do not want to interrupt the Senator but it seems to me to make the thing as wide as possible. There might be some things which would be quite clear to a civil servant but in respect of which he would require specific authorisation to reveal. Every day in the week civil servants come to a Minister or to a head of a Department and ask if it is wise to reveal such and such a thing. In other circumstances, an official does it in the course of and in accordance with his duties.
Can we take it as part of the duty of a senior civil servant to discuss matters outside the Civil Service?
Of course. That, to my mind, would be the normal defence that a civil servant would follow—that he had done a certain thing in the normal course and in accordance with his duties, that it was a normal, routine duty on his part.
Can we take it then that when the Bill is passed, there will be general rules laid down in regard to the duties of civil servants, particularly in regard to contacts with people outside?
We might have another look at this old circular and see if it could be beneficially amended. Civil servants have been living with this problem for the past 40 years and none of them has had a nervous breakdown over it. I do not think there is any need to put in these words. There is scope for misunderstanding in any form of human activity, but a civil servant is a special type of person and we would expect him to know what he should and should not discuss, what he should and should not do in the ordinary course of his duties. We would expect him to know if a certain thing was a special sort of thing in respect of which he would have to get special authorisation. I do not think there is anything particularly onerous in that.
There is the question of where a civil servant would act in good faith and indeed might act in good faith but still might do something which his superiors or the Minister might consider to be in contravention of this Act. A man may act in good faith either because of what he thought was a good authorisation or what he thought was a proper discretion in carrying out his normal duties.
And he has a perfect defence, in my opinion. Do not forget that there is no question of the Minister certifying in this case. This is a question that is fully within the competence of the courts to decide. The civil servant has a remedy here and is not faced with any sort of Sword of Damocles in the form of a certificate from the Minister.
Forgive me for pressing this, but is it not quite clear that the best defence of a person charged with an offence is that he did the act in the course of and in accordance with his duties? Surely his best defence would be to subpoena the establishment officer. That establishment officer can go into court and claim privilege and the accused person consequently is robbed of his defence through the pleading of State privilege. The Minister feels I am being unduly anxious but does he feel his Bill would be seriously weakened if he put in the words I suggest? The onus is on the civil servant to prove that he had reasonable grounds for acting as he did but the Minister can claim privilege when a man says he had good reason to believe he was duly authorised.
I think it would be making it a bit too easy altogether. I think the answer should be on the merits. The man should be made to prove that he was authorised, that he had done it before on several occasions, that his predecessor had done it—that sort of proof.
Your argument is that a man's assertion should be accepted by the court. If the words I propose to put in are put in he would have to satisfy the judge, not merely satisfy himself. We are all convinced that we have good reasons for doing everything we do. I am convinced that I have good reasons for pressing this amendment and the Minister is convinced that he has good reasons for not accepting it.
And we are both reasonable men.
Undoubtedly. I would agree on that point.
Marvellous. We should have a vote on it.
The position is that in court the judge and jury would be concerned as to whether a person has discharged the onus to prove that he had reasonable grounds and that he acted in good faith.
This is a Bill which gives rise to some anxiety. It is a Bill which may not be used often. I do not think the amendment I propose strikes in any way at the nature of the Bill. It is quite aside from the major points with which we have been having difficulty throughout the whole discussion. I am very worried because the Minister specifically gave protection to the person who received in good faith.
In very different circumstances.
He makes the position of the person communicating extremely difficult. If I withdrew now and retabled on Report, would the Minister consider it in the meantime?
The Minister should give something away some time or other. You would not know what reward he would get.
I move amendment 13:—
Before subsection (4) to insert the following new subsection:
"() It shall be a good defence to a prosecution for an offence under this section to show that the person against whom the offence is alleged did not know at the time the information was alleged to have been communicated or obtained that the information was secret or confidential or was expressed to be so."
A great deal of what I am concerned with in amendment 13 was discussed on Section 2. This amendment refers only to part 2 of the Bill, Section 4. It is concerned only with official information. Here again I am arguing the case of a person who acts in good faith. My viewpoint is that we are not concerned with the civil servant or his fitness for his job. A civil servant who even in good faith allows information to go out through his agency, we will agree, has not the discretion for the position and therefore no case can be made why he should not be subject to civil service discipline. But take a person who through lack of discretion or imprudence allows information to emerge through his agency to somebody else —does it make him a criminal? Should it be made a criminal offence?
Information is either inherently confidential and secret or is expressed to be so. If it is expressed to be confidential and secret and properly expressed any lack of knowledge could never be used as a defence. Nobody could ever plead in court that he did not know the document was secret and confidential if every page is stamped. It is only where information is not stamped secret and confidential that a person could say that he had not been properly warned. Again we have the danger that a person may not have been properly instructed by his superior regarding his general duties or regarding some specific work he was doing. It may be said that his own prudence and discretion should have made him know that these things were inherently secret and confidential. The point is that he may be a bad civil servant if he does not realise this for himself but it does not in my opinion make him a criminal. This sort of imprudence or lack of discretion should not justify a criminal charge.
This is the same argument as that on the last amendment and I do not think I should hold up the House by reiterating my side of it.
I will withdraw then.
On the same undertaking.
I move amendment 14:
Before subsection (4) to insert the following new subsection:
"() Nothing in this Act shall make it an offence for any holder of a public office to communicate information concerning terms or conditions of employment to an association which has as one of its principal objects the carrying on of negotiations on behalf of its members, unless the communication of such information is prejudicial to the safety or preservation of the State."
This matter is altogether more serious than anything which came up in the previous two amendments. I am concerned with the position of a serving civil servant, the position of a person in the civil service communicating to staff associations matters concerning terms and conditions of employment. These staff associations in the course of reporting the views of their members communicate to the members information they have received from persons in the public service. This is part of the system of personnel relationships inside the civil service. The question is that under this Bill it would be quite possible in the event of a dispute for a Minister to certify that staff matters should be secret and confidential and that in the event of any information going out there would be a criminal charge based on a certificate against people who gave information to their own staff associations regarding something which in other spheres is called an industrial dispute. Employer-employee relationships in the civil service should be at least as good as those in industry. What happens in the civil service should not be a matter of reproach. Various staff associations must be free to communicate with members individually or collectively, free to gather facts, free during negotiations to discuss them with members, to question members further about a particular case and in the event of a breakdown in negotiations, free to talk to members of their associations about the position that has been reached.
I put down this amendment in order that there should be no doubt now, or at any time in the future, that there could be any attempt to use the Official Secrets Act as a weapon in an industrial dispute. The amendment is fairly tightly drawn. I have confined the information to information concerning terms and conditions of employment. There is no question of the contents of files on which people were working. Anything like that is excluded. It is merely terms and conditions. It is also tightly drawn because communication is restricted to communication to an association. The safety of the State is safeguarded. In a way this is minor information.
I would ask the Minister to treat this as a serious matter. It is not only that I am afraid of what would happen but I should like to see a clear declaration in the Bill that this could never be used as a weapon in industrial relations between the State and its employees. If this were done it would be extremely good for the morale of those employees.
The Senator states that his Amendment is tightly drawn and that is something about which I would disagree with him. It seems to me that the Amendment leaves the situation open to all sorts of things. The Amendment says that nothing in the Act shall make it an offence for any holder of a public office to communicate information concerning terms or conditions of employment to an association which has as one of its principal objects the carrying on of negotiations on behalf of its members unless the communication of such information is prejudicial to the safety or preservation of the State. The Senator's amendment does not confine it to civil service associations which presumably is what he has in mind. As the amendment is framed information could be disclosed to any association, whether civil service or not.
Secondly it seems to me to go much further than the points the Senator has spoken about. As the amendment stands there is nothing to prevent a civil servant in, for instance, the Department of Finance who is charged with conducting negotiations on the official side from disclosing to the staff side the most confidential aspects of his case.
I do not think the Senator has that in mind. I see clearly what the Senator has in mind. The only thing I can say is that the amendment goes much further than he wants it to go. Even apart from that, I understand that the position is that the various associations at the moment are satisfied with the position as represented by the circular which I have read out earlier. They are quite satisfied that they have been able to operate all along under the terms of that circular and they do not see any difficulty with regard to it in the future. If there were any question with regard to changing that circular, naturally the staff associations would be consulted.
Perhaps, indeed, this is wider than the Minister has indicated. I should be prepared to narrow the scope of the amendment further in order to meet the point the Minister has put forward. I think it is important and it is a thing which could give rise to anxiety. Let us face the fact that at the moment there is a particular case in existence in the civil service in which conciliation and arbitration has broken down. At the moment, a court case is pending, arising out of the failure to reach agreement on a certain matter under the Civil Service Conciliation and Arbitration Scheme. This is a very serious thing—this particular case— from the point of view of the Department of Finance. I think it very desirable that it be put beyond any doubt that in a case such as this no attempt would be made to invoke this Act or any Act like it in order to attempt to intervene in this or to prevent action being brought on behalf of any group of civil servants who are in dispute with the Department of Finance. The question is this. This Act might be invoked to prevent them from instructing solicitor or counsel in the case of legal action. I think this would be very undesirable.
I could not visualise any circumstances arising in which that would happen. Can the Senator?
There is at the moment, and the Minister must know it, a dispute on remuneration which has lasted for twelve months in regard to certain grades in the civil service. There is bitterness concerning this dispute.
The Senator does not get my point. How could any sort of information which would be regarded or could ever be regarded as secret or confidential become involved in such a situation? In other words, I think the Senator is concerned with the work, the hours, the positions, the responsibilities, and so on. All these matters are public knowledge. They could never be regarded as being secret or confidential under the terms of the Bill.
Surely the Minister must admit that there are certain of them which could possibly be certified as being secret or confidential? Then the matter is beyond discussion.
A civil servant might have to go into a dangerous situation.
Perhaps the Senator would consider a narrower amendment?
I think, again, it would be good for the morale of the Civil Service if this issue were put beyond doubt. I shall endeavour to bring in a tighter amendment on the Report Stage. I would ask the Minister to consider the matter in between. I shall retable the amendment in a different form on Report Stage.
Amendments Nos. 15, 16 and 18 may be taken together.
With your permission, Sir, may we omit amendment No. 18 from that group because I think a different principle is involved?
I move amendment No. 15:
In subsection (4), line 28, before "or" where it secondly occurs to insert:
"or Chairman of the relevant commission, committee, board, or tribunal,"
On amendments Nos. 15 and 16, sub-section (4) says:
In this section "duly authorised" means authorised by a Minister or State authority or by some person authorised in that behalf by a Minister or State authority.
In this, I am simply asking that the chain of authority should extend to include the Chairman of a commission, committee, board or tribunal.
After all, in the hierarchy as outlined at present, the Minister has made it clear that the Secretary of the Department and the higher officials all have a great amount of discretion in giving authorisations. I am asking under these two amendments that the same should extend to the chairman of a commission, committee, board or tribunal because the material of a commission, committee, board or tribunal is confidential to that body while it is sitting. It would not be in the public interest or in the interest of public appreciation and respect for commissions, and so on, that the chairman should have to communicate with the Minister before getting authorisation to reveal something which the commission thought should be revealed at that stage. I am asking that the same power be given to the chairman of these bodies as is given to senior civil servants.
I do not think it is necessary or even desirable. I think the power should still reside in the Minister. These commissions or committees are really an instrument of the Minister. He asks distinguished people to constitute themselves into a committee of inquiry. He sets up the committees and gives them terms of reference. Really, they are working for him, to that extent. Consequently, I would not see any difficulties arising in the chairman communicating with a Minister and saying: "We should like your permission in respect of such a document". I think it would be better to leave the power with the Minister.
I have in mind the power of certain members of the commission to——
Would it not be a simple matter to procure Ministerial sanction? He sets up the commission, committee or tribunal. The Minister will be just as anxious that it will do a good job as the chairman and members themselves. There would be no question of hampering their work in that way. It would be assumed, I think, as a matter of course, that the Minister would give permission for that sort of thing. Therefore, I think it is better to leave the safeguard there.
The position at present, as I understand it, is that a member of the commission generally asks the chairman of the commission if he may communicate information from some person or ask something, some advice.
I am not sure that even that much would not be covered by the phrase "in accordance with his duties as the holder of a public office." If there were a consultant or adviser of some sort whom the chairman of the commission wished to consult and discuss matters with, I am not sure that under subsection (1) of Section 4 he would not be entitled to do so. It should be interpreted as "in accordance with his duties as the holder of a public office" in consulting some relevant——
That effectively grants what I seek to provide in the amendment?
I think so.
On the section, does that apply to the Press.
Not that it mainly applies to the Press but the amendment I made to subsection (3) in the Dáil was made at the request of the National Union of Journalists.
But the Press is definitely under subsection (3)?
Yes, but I think they are pretty well safeguarded as it reads now.
Amendments Nos. 17 and 20 will be taken together.
I move amendment No. 17:
In subsection (3), line 41, before "the communication" to insert "at or before the time it was committed".
These two amendments have the same point, the point of retrospection. It is on a slightly different basis from the retrospection in the giving of the Minister's certificate. The danger, as I see it, in these two subsections as they are drafted, is that it would be possible for the Minister to defend himself or to defend somebody working for him by giving his authorisation after the action was done. I want to put in the words "at or before the time it was committed" in both subsections so that the Minister, or a State authority acting on behalf of the Minister, must give the authority in advance. Otherwise there is the danger that at some later stage somebody who has committed an offence could come along and get a retrospective authorisation from the Minister or from the authority. In dealing with these two sections perhaps the Minister would explain, as it is not quite clear to me, why in subsection (3) of Section 5 the authorisation by the Minister is in writing but it does not appear to be in writing in subsection (2) of Section 9. Is there any significance in this?
Only that in Section 5 we are dealing with a different type of person, a person or party contracting with the State. I am not sure that I could accept this amendment by Senator Ross. Here he has gone to the opposite side; he is on the side of the Establishment and I am on the side of the accused. Possibly Senator Ross is concerned that some miscreant should not escape by the Minister coming along afterwards and, as it were, issuing a post hoc authorisation. In doing that he could also be unfair to another type of accused person. You could have a case where a contractor would be told orally by the Minister: “That is O.K. Go ahead and make a statement about that to the Press,” subsequently authorising it in writing. Then the Senator's amendment would defeat that defence. On the whole, I think the sections are better as they are.
I can see that now.
I move amendment No. 18:
In subsection (4), page 5, to add at the end:
", or to a member of a commission, committee, board, or tribunal set up by the Government or a Minister, when so authorised by the commission, committee, board, or tribunal concerned".
Under Section 6, a person must return all official documents or anything which constitutes or contains official information when he has no right to retain it and when not required by his duty as the holder of a public office to retain it. When applied to committees and commissions, that means the return of all memoranda received by the members while the commission was sitting. I take it that it is unreal to expect the return of all of those and it is something that has never been done in the past. I have seen some of the memoranda of old commissions and they are very harmless but very interesting documents and very much prized by members of the commissions. Under this section such documents would have to be returned. Earlier today the Minister refused to make any segregation of the documents that are in the hands of a commission that he has appointed.
Everything begins by being private and confidential but most of the private and confidential nature vanishes when the commission has concluded its work. Yet, according to the Minister there is no facility for declassifying that private and confidential nature. Does this mean that, under the section, members of a commission will have to return every document they receive during their membership? My aim is to avert that and so I should like to hear the Minister first as to whether my interpretation of the section is correct.
The Senator is, to some extent, correct in his interpretation of Section 6. The only thing I can say about his interpretation is that he is pushing it to a somewhat extraordinary length. I think the provisions of subsections (1) and (2) are reasonable. Subsection (1) states:
A person shall not retain any official document or anything which constitutes or contains official information when he has no right to retain it or when not required by his duty as the holder of a public office to retain it.
Nobody could object to that in principle or suggest, no matter who it was, that he should hold on to official documents or anything that constitutes or contains official information when he has no right to retain them or that such a person should not comply with the directions of the Minister or Secretary of a Department, or person authorised by the Minister, to return them. This sort of power, I should imagine, would very rarely be used. It could apply to the sort of documents the Senator has in mind and which would come into the hands of a member of a commission during the sitting of a commission. There might be the odd time when the Minister would insist on getting back such a document but I think these occasions would be very rare. I think it is a useful and reasonable provision to have in the Bill.
The whole difficulty arises on what is an official document and the debate earlier today seemed to suggest that every memorandum, everything that comes before the Commission, will bear the general stamp "private and confidential," which would be a routine matter in any case, and that such documents would be classified as official documents and accordingly, under this section, should be returned. That is contrary to existing practice. It makes a very big departure and it is something that is not done in commissions anywhere in Western Europe, certainly not in England or in America. I do not see any necessity for it.
If it is an official document or anything containing official information a member of the committee or commission would only have it for the particular purposes for which that commission was set up. He would have no right to it. It would be just loaned to him for the immediate purposes of the inquiry and surely the Minister must be entitled to demand it back.
What is the necessity to depart from existing practice?
I do not think we are going to do that.
I have never known of a member of any commission being asked to return any document he is given while acting as a member of the commission. He was expected to respect the secrecy or confidential nature of any such document but the members were accepted as worthy to sit on the commission and, having been sufficiently trustworthy to fulfil that role, should be equally trustworthy in retaining the documents thereafter.
Could the Minister tell us why he is departing from existing practice in this regard and why he is departing from the practice in every other country in Western Europe?
I do not think I am being unique. Can the Senator not see that this is a useful power for a Minister to have although, as I say, it might never be used? It probably never will be used but you might, on some occasion, meet a difficult person on one of these commissions or tribunals of inquiry who would insist on holding on to a document to which he would have no right and I think the Minister should have power to say he should give it back particularly if he only got it for a limited purpose. Perhaps Senator Hayes, who was on the Seanad Commission with me, would recall whether or not some documents were given to us which were subsequently taken up again? It is just a vague memory to me.
I do not recall that.
I think it is a useful power to have. For instance, let us visualise this situation. When the commission concludes its work, all the members sign the report of the commission but if we got a particularly "contrary" member who insisted on holding on to that when it came into his possession, would not it be desirable that the Minister should have power to get it back from him?
That is giving a very special interpretation to the word "official document" and "official document" itself, as we have seen, is capable of being applied to every item that comes before the commission.
I cannot see this being applied, I must say. I do not think it makes any difference. I can see very little prospect of any conceivable Minister bringing some member of a commission into court for the purpose of making him return a document. Perhaps it is correct that the power should be there to do it but I do not remember the case the Minister mentions. I cannot recall that but I imagine that kind of thing could happen, that a document circulates to a commission and they would be asked to give it back and they always do give it back. But, that this could be operated to bring some former member of a commission into court, I doubt. I do not think it does any good. I do not think it does any harm.
On a point of information, this is in existing law already. In the Official Secrets Act, 1911, there is a similar provision.
Could we have the quotation?
The Senator is very——
He is a doubting Thomas.
The Minister said that all the lawyers on his side of the House were comfortable about this and one member has since said that he thought it was unconstitutional.
Did he say that?
Senator Nash said he feared that sub-section (3) of Section 2 was unconstitutional.
If he fears it is unconstitutional, he need have no worry in regard to it.
The Minister was not deadly accurate in saying that he was happy about it.
It is subsection (2) and it says:
Where a person ... retains a sketch, plan, model, article, note or document in his possession or control when he has no right to retain it or when it is contrary to his duty to retain it, or fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof, that person shall be guilty...
That is not an official document. It is a very restricted form of official document. This is the process of widening out everything. Talk about Daniel O'Connell's coach and four, we could drive a bus through this. It does seem the whole section is unnecessary if it is to be applied so rarely.
Excuse me. The Senator is misinterpreting me there. I did not say the whole section will be only rarely invoked. I meant that I can imagine the section would be only very rarely invoked in relation to members of commissions, and so on, the people he has in mind in his amendment.
Then would the Minister consider looking favourably on the amendment I have introduced in an effort to protect members of commissions, tribunals and committees against abuse of this section? I have proposed that the section shall not apply to a member of a commission, committee or tribunal set up by the Government or a Minister for the purpose of an inquiry, when so authorised by the commission, committee or tribunal. I am trying to get some sense of responsibility placed on the commission, committee or tribunal for what are regarded as minor decisions. In other words, it would seem perfectly legitimate at the end of one of the last sittings of the commission that there would be a communication from the Minister or it would be open to the commission itself to decide that certain documents have to be returned and that otherwise, the members are free to retain the other documents concerned. That is a very simple decision and a decision that any commission should be capable of making at the end of its session.
Is the amendment withdrawn?
I think the Minister is inclined to answer me.
He answered the Senator already.
Could we hear the Minister on the amendment as tabled?
I thought I had dealt with it fairly fully. The section says, and it is a very valuable provision, that any person who retains an official document or document containing official information when he has no right to do so can be compelled by the Minister to hand it back. The Senator wants to exempt members of commissions of inquiry. I do not think they should be exempted. If they are holding on to documents they are not entitled to retain, they should be compelled to hand them back if the Minister demands it. In relation to this kind of people, I cannot imagine this power being used except in very rare and isolated cases but it is worth having there to cater for the sort of instance I have mentioned.
I think the Minister misunderstands the force of my amendment. I have not suggested they should be exempt from giving these documents back but I have put the onus on the commission itself to decide as to what documents should be given back or not.
No; that is not what is involved in the amendment. The amendment clearly exempts these people from the provisions of subsections (1) and (2).
When so authorised by the commission, committee or tribunal concerned. In other words, when they are authorised to keep those documents by the commission, committee or tribunal. Otherwise, they are not.
I am sorry. I accept that but it does not make any difference really because I said originally that this power to exempt should reside in the Minister and not in the commission or the committee.
When will the Minister give me the decision on these matters? As a member of a commission you want to know what documents you can retain and what documents you cannot retain, or can the Minister go back for a year or ten years and charge a member of a commission that he got these documents and demand that they should be returned? Is that situation possible?
That is possible?
That certainly means that in future, if we are going to impose anything like that, we might as well dispense with all commissions, committees and tribunals and leave the Civil Service to do the job through departmental committees and sink further down into the socalist state.
That is the fourth time the Senator said that. It is repetition.
I move amendment No. 19:
In page 5, to add the following new subsection:
"() The powers of the Taoiseach under subsection (3) shall not be exercised in relation to any documents circulated before the passing of this Act."
The section provides that in the case of those who hold office as Ministers or Parliamentary Secretaries the Taoiseach may demand the return of original documents. Perhaps the Minister may tell us more than he told us on Second Stage as to what the phrase "original documents" means. I take it that power already exists in the Taoiseach. I wonder am I correct in that? I do not think it has ever been exercised.
I am not sure that it does.
I do not know. At any rate, it has never been exercised and, if it has not been exercised and when you consider everything, it would seem to be reasonable that if that power is going to be given to the Taoiseach now it should be exercised only from the date of the passing of this Bill and not in general.
The present Taoiseach, or any successor of his, should not be allowed to go back into history, literally and metaphorically, and ask for documents which may be in possession of people who held office as Ministers or Parliamentary Secretaries. It would appear to me to be quite reasonable to say: "Very good, if this power is necessary let us have it. Let everybody who takes office in future know that this power exists." But let it exist only from the date of the passing of the Act.
On the face of it Senator Hayes's submission seems reasonable, but when one considers it fully it is not. Take my own job. I can now be assumed to be receiving original documents. In fact I do not know whether they let me in on original documents.
What is an original document? Does the Minister know?
Yes—a document of origin.
The Minister would not get any marks in an examination for that definition.
Presumably a document which is not a copy of any other.
Then I have no original document. The Minister should be able to explain what is in the Bill. If I, as Minister for Education, prepared a document which I circulated to the Cabinet, I might have the original document in my possession. Can I be made give that up? Could that position not apply to the Minister for Justice, the Minister for Defence or any other Minister? The thing is of no value, no one but the Minister has the original document but each of his colleagues has a copy.
The Senator is referring to documents, copies of which are made and circulated to the Cabinet. They might be of no value but there could be original documents of importance to the State or ones which would properly belong in the archives of the State. In those cases it is proper that the Taoiseach should have the power to require that such documents be given back.
And exercise it backwards?
I think we can agree we could push it to absurd lengths, but the Senator's amendment would not be very acceptable for the reason that we would have people who may have been Ministers before the passing of the Act and who will continue to be Ministers subsequent to its passing who, I think, should be bound by the provisions of the Bill in relation to documents they are getting now.
I shall put in October 1st, 1961. That would suit me admirably. I have seen a great many documents but I cannot bring to mind what precisely the Minister has in mind when he talks of an original document. I do not think he knows. I certainly do not know. That being so, it would be very difficult to apply this provision. If the Minister agrees the Taoiseach should not have power to go back, then I would be prepared to fix January, 1960.
Could we exclude any documents Senator Hayes may have in his possession?
I am not a bit vain about documents I have in my possession. We have the zealous, sincere, gravely mistaken Ministers. These people who are sincere are the most dangerous. Is the Minister prepared to accept this, subject to a certain date?
Not really. I feel there could be documents now in existence which might not come to notice until after the passing of the Act and which the Taoiseach might require to be returned. It is possible I might find it necessary to take home a file on some matter arising in my Department, perhaps a file dealing with the preparation of a piece of legislation. I might retain that in my home and subsequently be properly required by an incoming Taoiseach to hand it back to the Department.
We have had 40 years' experience and nothing has happened. Why go to all this trouble now, and if we do why should we not give people notice and fix a date before which this power could not be exercised? It is purely hypothetical. The Minister has no documents in his mind. Neither have I and I have enquired from other people and they have none. If the provision is necessary at all it should be necessary only from some particular date. The Minister should continue this from the point of view of putting in a date on which we would agree. I presume this Bill is the product of years of study and the Minister wants it exactly as it is here. He wonders at our objections to Ministers having powers. The Minister wants every single comma in this Bill; he says it is reasonable and that he cannot do anything about this amendment. Is it any wonder we do not like giving powers to Ministers? Ministers are insatiable. Would the Minister not go back bravely to the Dáil and say the Seanad have convinced him? Think what applause he would get from the front Benches of the Opposition.
They would probably feel shamefaced because they had not thought of it themselves.
They are genial, generous fellows. They would be delighted.
I have a query on official documents. Apparently the Minister's concern is that the documents should be available for the use of a subsequent Minister or for the archives. Surely copies should suffice.
Say the Parliamentary Secretary in charge of the Board of Works took home the lease of Government Buildings, if there is such a document in existence.
"There ain't no such thing."
Could he comply with the Act by keeping a copy of the lease?
I would ask the Minister to yield to the submission of Senator Hayes. There are a number of Ministers who were Ministers many years ago who have documents but who have never been asked for them.
And never will be.
The Minister would not be doing his Bill any harm, nor would he be giving a terrible lot away, if he inserted a date even 5 years back. In fact I was going to suggest 1932.
I cannot see any point in the amendment. Either the power should be given to the Taoiseach to ask for the return of these documents or it should not be. The document the Taoiseach might require to be returned could just as well have been taken by a Minister five, 10 or 15 years ago as last year. I see no point in limiting the time.
We had a professor in metaphysics in University College, Dublin, who was a Member of this House for some years and, although he said a good many things in his time, one of the things he used to say which I remember distinctly was: "Life is larger than logic. Life is larger than the logic of the last speech."
I think the Minister should give in on this. I have a feeling that a number of these Ministers and ex-Ministers may think they have a lot of documents at home but when they go to search for them they will find that their sensible wives have spring-cleaned them and that they are no longer in existence.
We will put it down again and see what happens.
I should like to ask if this section is in accordance with existing practice.
No widening, expansion, retrospection or anything else.
We have the difficulty pointed out by the earlier speakers. In the confusion prevailing as to how much information should be given in face of the Minister's official certificate, how is the court to arrive at the penalty? It says here that the case is established on the Minister's certificate, that this is official information and all that has to be certified after that is—you have so many grades of official information and so much discretion is allowed to the Minister— whether he should specify or indicate on the certificate how far the court can range. Should they deal with the case summarily and put on a penalty up to £100 or a prison sentence of six months or both? How is the court to reach its conclusions on this?
A person can be triable on indictment under Section 9 or for an offence under Part 2 where the offence has been committed in a manner prejudicial to the safety of the State. He cannot be tried on indictment under Part 2 except it is committed in a manner prejudicial to the safety of the State so there is no difficulty in deciding whether the person should be tried summarily or on indictment. The court has no difficulty in this regard. It is up to the prosecution to establish whether the matter is serious. Even in a case where the certificate is used—and Senators need not assume that the Ministerial certificate will be used in all cases; in the vast majority there will be no need because the information is known to everybody——
Only in doubtful cases.
In most cases the information will be known and publicised. Everybody will know what the information was. The fact that the Minister must specify in the certificate the type of information which was disclosed will indicate to the Court the gravity of the offence. Then the defence will be able to adduce any mitigating circumstances they can.
Is it not a fact that, if such a certificate were possible at the time of the one case mentioned in our whole history of 40 years, the defence would have been very seriously hampered?
No, because at that time the prosecution in that particular case did not have to prove that the information was secret or confidential. They had to prove only that official information was disclosed. There would be no question of a certificate good, bad or indifferent. They would still have to prove now the same as they did then.
That case was thrown out summarily by the jury, was it not?
The prosecution did not succeed.
It was thrown out by the jury and the judge commented very severely on the conduct by the prosecution.
The judge made some ill-considered remarks. The prosecution did not succeed.
And the judge spoke very severely of them.
Anyway these are "old forgotten far-off things and battles long ago."
They might come again. Scrupulousness is not a badge of all the tribe.
I move amendment No. 21:—
In subsection (2), line 29, before ",but" to insert "for a total period not exceeding two weeks".
Section 14 provides that a person may be arrested and detained or kept on bail but no further proceedings can be taken until the consent of the Attorney General is obtained. Just to tidy up the legislation, I think we should put in a definite time—that if the Attorney General's consent to a prosecution is not obtained in two weeks, four weeks or whatever it is, the accused person would have to be allowed to go free so that a person cannot be detained indefinitely.
I do not think there is any necessity to insert this particular amendment. The amendment is not quite clear. Would the Senator give an illustration of the situation he is worried about?
Where there is conflict between the Government and the Attorney General as to whether proceedings should be initiated and the Attorney General refuses his certificate to allow it to go ahead, under the section the Government could keep a person detained indefinitely.
He could always take habeas corpus proceedings.
That is exceedingly expensive.
No. One thing about habeas corpus is its simplicity.
Is the section not the answer to habeas corpus?
A person could be kept three months while the Attorney General was considering the case. There is no reason why the Attorney General could not consider it quickly and make up his mind whether there was going to be a prosecution or not. If there was a time limit it would ensure that the Attorney General would have to do that.
I thought the point of the section was that the Government could keep a person on bail or in prison under the plea that they were awaiting the advice or consent of the Attorney General. Is it not true on the face of the section? Would not that be the answer to habeas corpus, or would it?
I do not think so.
Would it not? Under this, a person could be kept an unreasonably long time.
Unless the section specifically stated a limit of time he could be held, but I do not think he could be held if habeas corpus were brought. The court would say that unless the consent of the Attorney General were given, he must be let out.
He could be kept three months and that is unreasonable.
I do not think it fair to say you can take a person up and the person then has the remedy of habeas corpus. I think that is not sound legislation. It is not legislation now for a time of war or a period of emergency. It is legislation for ordinary peace time, is it not?
In ordinary peace time, it should not be possible to take a person up and keep him indefinitely. I think it is not an answer to say: "Well, if you go to a High Court judge he may say, and probably will say, you are held unreasonably." That is not a fair way to treat the ordinary citizen.
The delay might be in the interests of the accused. I shall have a look at it.
I should like to say a few words in the hope that the Minister might put down an amendment on Report Stage. Subsection (3) provides that a Garda may enter a house under a search warrant and may seize any document or thing found therein or on such person which such member reasonably believes to be evidence of or to relate, directly or indirectly, to a contravention or intended contravention of Section 9. Subsection (5) of the same section then provides:
Any document seized under this Section may be removed and retained for so long as the Minister for Justice thinks proper.
I think that is too wide—that a document may be retained for so long as the Minister for Justice thinks proper. The subsection continues:
... and any other thing so seized may be removed and retained for a period of one month from the date of its seizure or, if proceedings are commenced within such period for an offence under this Act, until the conclusion of the proceedings, and thereafter the provisions of the Police (Property) Act, 1897, shall apply ....
I do not know why the distinction is drawn between a document seized and any other thing seized. I think that the same provisions should apply to a document. If there is going to be a prosecution of course it is reasonable to hold it, first of all, to give the Minister and his advisers an opportunity of considering whether there will be a prosecution—and a month is not unreasonable for that. Then, if there is a prosecution, it must be held until after the prosecution.
Under Section 9.
As the section stands at the moment, the Garda may go in and seize a document and the Minister may say: "We shall keep that for 40 years"—it is an extreme case but that is the power the section gives him authority to have—without ever giving a prosecution. I submit that that is not reasonable. I think I would leave the same provisions to apply to the document. If there is any good reason for the distinction, I should be glad to hear it.
Except that one is envisaging a piece of property which might be of some use.
A document may be very useful, too.
Not to the same extent. There is a distinction. We are dealing with Section 9 cases, with the safety of the State involved. I think the House might agree to give, in these types of cases, some stronger powers than we would contemplate in ordinary cases.
But the Minister does not seek any very elaborate powers in respect of a thing. He only seeks it in respect of a document. There are plenty of cases in which a document could be valuable. It might be very valuable—an original manuscript of some description.
It could also be a seditious document.
Then a prosecution would follow and the matter would be cleared up.
It might be a document to which the owner would attach great value.
I feel that, where the safety or preservation of the State is involved, the Minister for Justice and the Executive should be given power to hold a document as long as it is thought proper.
The same should apply to a thing.
Not necessarily. A thing is probably capable of being of more use and value in normal circumstances.
If the Minister does not put down an amendment on Report Stage in this connection I propose to put one down.
The Section is curiously drafted. Subsection (1) provides that an officer of the Garda who has reasonable grounds for suspecting certain things may apply to the Minister for Justice for power to require a person to do certain things. Subsection (2) goes on to say that he may exercise the power conferred upon him in subsection (1) without applying to the Minister for Justice. Therefore, the subsection gives power to the officer of the Garda to arrest a person and to say to him that the officer of the Garda has reasonable ground for suspecting that this particular individual can furnish him with information and, if the person required in pursuance of such authorisation to give such information fails to comply with the requirement, he shall be guilty of an offence.
That appears an extraordinary provision. Remember that the officer of the Garda has not to prove to a court that he has reasonable ground for suspecting such things. The court is constantly charged with the duty of deciding what is reasonable. Senator Ryan gave an example a moment ago in the habeas corpus case. If the judge decides a person is unreasonably held without trial, he may order certain things. Here, the courts are completely out of it. The officer of the Garda Síochána can proceed on his own. It seems an extraordinary power to give over to an individual—that he can say to a citizen: “You have information. If you do not give it, it is an offence.”
We are really limiting the power of the police in this Bill. At the moment, the Garda can act——
Under the ordinary law, not under the Offences Against the State Act.
We are putting in a barrier, a limiting factor.
You are putting it in in subsection (1) and taking it out in subsection (2).
The officer must have reasonable grounds for believing it and, in an action later, he would have to establish them.
At present, can a member of the Garda Síochána require any person to give any information about the commission of a crime?
Even if it discloses that he himself had committed the crime? Surely that is not so?
I am saying that about an officer of the Garda not below the rank of chief superintendent——
This specifically refers to Section 9.
Yes, to Section 9 cases only, where the safety and preservation of the State are concerned and where an officer of the Garda has reasonable grounds for suspecting that an offence has been committed and for believing that a person can furnish information as to the offence or suspected offence and—here is the difference—he may apply to the Minister for Justice for permission to exercise the powers conferred by subsection (1) of Section 17.
That does not apply at the moment. He does not have to apply to the Minister for Justice. He may authorise a member of the Garda, not below the rank of Inspector to require the person believed to be able to furnish information to give any information in his power relating to the offence or suspected offence and if a person required in pursuance of such an authorisation to give information fails to comply with the requirement, or knowingly gives false information, he shall be guilty of an offence. That is the existing law on the matter.
The existing law is that Patrick Murphy can be stopped by an Inspector of the Garda in the streets and told he has certain information and if he says he has not, he is guilty of an offence—or if he says nothing? Is that correct?
I shall read for the Senator Section 6 of the Official Secrets Act, 1920; it says:
It shall be the duty of every person to give on demand to a chief officer of police, or to a superintendent or other officer of police not below the rank of inspector appointed by a chief officer for the purpose, or to any member of His Majesty's forces engaged on guard, sentry, patrol, or other similar duty, any information in his power relating to an offence or suspected offence under the principal Act or this Act, and, if so required, and upon tender of his reasonable expenses, to attend at such reasonable time and place as may be specified for the purpose of furnishing such information, and, if any person fails to give such information or to attend as aforesaid, he shall be guilty of a misdemeanour.
I think that is under martial law.
I am reading Section 6 of the Official Secrets Act of 1920, which is the law in this country at the moment.
I thought, in view of the reference to "His Majesty's forces", it was concerned with military law.
The police officer cannot just stop anybody in the street unless he has reasonable grounds for believing the person has information. And when the person who possibly refuses to give that information is charged, one of the proofs would have to be that the officer had reasonable grounds for believing that in fact, he had the information. He would have to show what these reasonable grounds were. He cannot, just on chance, stop everybody he meets in the street and get information.
I hope the Senator is right. I do not see it here. If I thought the court trying the man could inquire into whether there were reasonable grounds, then I should be satisfied.
Only in an action afterwards. If an officer of the Garda exercises this power without having reasonable grounds that would be very good cause for an action for damages by the accused at a later date.
But is what Senator Ryan states—which I think is better for the accused in the ordinary way—correct? When the accused is being tried, is the officer compelled to state what his grounds are for thinking that the person had information? That is not in the section. I hope Senator Ryan, who knows more about it than I do, is correct. It may be general law, but it is not in the section.
The officer would have to establish grounds at some stage before the man is convicted.
But will he?
This power has nothing to do with the prosecution or establishment of the offence. It is directed to the prosecution of a person whom the officer has reasonable grounds for believing has information about the offence and refuses to give it.
We are concerned about the other man—what happens?
If a police officer exercises these powers without having reasonable grounds, that is ground for an action for damages.
As it always was.
Yes, but there is more in it. I do not want the ordinary person to be put in the position that he must take an action for damages against the Garda officer. Is the other matter raised by Senator Ryan correct? When I read this section, it says:
... if a person required in pursuance of such an authorisation to give information fails to comply with the requirement or knowingly gives false information, he shall be guilty of an offence.
But there is no obligation in this, no indication there, that anybody can inquire into the reasonable grounds that existed before he was asked to give the information. I cannot see it in the section. I do not want to hamper the Minister but this seems an extraordinary power. Perhaps the courts would get over it.
It is the law at the moment and has been the law for the last 40 years. Secondly, it is confined to Section 9 cases where the safety or preservation of the State is concerned and thirdly, the Garda officer must have reasonable grounds for suspecting. I imagine—I shall look into this— that if a case were taken under the section the court would ask what the reasonable grounds were and then I think the offence would not have been committed if the officer had not reasonable grounds.
I should like this cleared up. Does this section enable a Garda officer to question an accused person and require him to give information which might convict him?
I think the over-riding principle that no man need give evidence against himself would govern that.
I think in the Offences Against the State Act, there is provision for asking people to account for their movements between such and such a time with a view to getting information which would convict them. It is true that the Offences Against the State Act is emergency legislation while this is normal peace-time legislation. I think under the section the accused person could clearly be asked to give information on which he could be later convicted. I should like to suggest to the Minister that he should consider putting in a proviso saying "provided nothing in this section shall require anybody to give information to convict himself".
I think the whole section clearly applies to information about a crime committed by somebody else.
It is anything but clear.