Amendments Nos. 1 and 2 will be taken together.
Message from Dáil. - Official Secrets Bill, 1962— Report Stage.
I am very glad to hear that. I move amendment No. 1:
In page 3, line 23, before "holder" to insert "full-time".
I thought it would be better that this Bill should apply only to people who are full-time holders of office and I am fortified in that view by what the Minister said in the Seanad on November 28th, Column 1477:
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.
For that reason I put this amendment down, thinking I was meeting the Minister's point. I notice he has an amendment of his own now to an effect which I do not quite follow. Perhaps we could hear the Minister on it so that we will be in possession of all the information.
My amendment—in page 3, line 27, before "remunerated" to insert "wholly"—is to make it clear that this piece of legislation will apply only to official information in the possession of holders of public office who are entirely remunerated from public funds. It will, to some extent, meet the objective which Senator Hayes is also endeavouring to achieve. My amendment emphasises that only where the State is responsible for the entire salary paid to a particular official is the degree of integrity which we require involved. The House will recall that on the last occasion we had some discussion about the different types of State boards. The officials of some boards would appear to be remunerated partly out of funds provided by the Oireachtas and partly out of funds provided in some other way, from levies, fees or otherwise. My amendment makes it clear that we intend that only a person whose remuneration comes completely and wholly from State funds will come within the ambit of the Bill I think that is a good line of demarcation.
May I ask the Minister a question? The Attorney General, for example, has a salary coming entirely from public funds but he does private practice. Is he included, therefore?
His office is wholly remunerated from public funds.
A man may be working part-time for the State and provided the part-time work is remunerated entirely from State funds —he may be in any other employment he pleases—he is not included?
He is included. If his office is wholly remunerated from State funds, then he is included.
I do not quite see this, Sir. Members of the Oireachtas, for example, have payment entirely out of public funds. They are included?
I do not think so. We will be coming to that later on. I think the test I am applying is a better test than the one suggested by Senator Hayes. The test I wish to apply is a clear-cut one: whether or not the whole remuneration attaching to the particular office comes out of State funds.
Very good, Sir. I will not press my amendment.
With regard to amendment No. 3, Senator Quinlan asked me to apologise to the House and the Minister. He has had to go away on university business to Manchester. He will not be available for his amendments which he hopes to put down at a later stage—a hope which is vain, I think.
I move amendment No. 5:
In page 3, line 30, to add "but does not include membership of the Houses of the Oireachtas".
I have read very carefully what the Minister had to say about this before. I am still convinced that the definition of "public office," including the amendment which we have just agreed to in line 27, includes members of the Oireachtas. Members of the Oireachtas were in receipt of allowances. They were in receipt of payments and expenses which were not salary or liable to income tax.
In the most recent Act dealing with the matter in 1960, a fundamental change was made in that principle, although it was not stated on the face of the Bill or, indeed, on the Bill when it became an Act. Part of the emoluments, to use the correct word, is liable to income tax and part is not, but it seems to me quite clear that members of the Dáil and Seanad have an office or employment which is wholly remunerated out of public funds, moneys provided by the Oireachtas. As such, they are caught by the definition in Section 2. If the Minister does not intend they should be caught, then I think he ought to amend the words to: "but does not include membership of the Houses of the Oireachtas."
The Minister was very persistent in his argument that this was not remuneration because the word "remuneration" is not used in the Act of 1960, under which Deputies and Senators get a salary at an increased figure but it does not seem to me that the term used is important. It is the fact that is important and the fact now is that what Senators and Deputies get is assessed for income tax. Income tax is assessed on property, profits and gains. I think, therefore, that Senators and Deputies have an office of profit, a public office, and come within the ambit of this definition.
The position is that where they are holders of public office under this, they are, therefore, subject to income tax, if the Minister is not right. If the Minister is right that they are not so subject under this, then they have an allowance and the Revenue Commissioners are wrong and should not charge income tax on any part of the income.
We would all prefer the second.
Under the Constitution, Deputies and Senators are paid an allowance. There is nothing about remuneration.
I have the Constitution marked at that particular section.
Am I right?
That is correct.
Not exactly. Article 15, subsection 15 states:
The Oireachtas may make provision by law for the payment of allowances to the members of each House thereof in respect of their duties as public representatives and for the grant to them of free travelling and such other facilities (if any) in connection with those duties as the Oireachtas may determine.
This afternoon, we determined certain other facilities for members of the Oireachtas, as we are perfectly entitled to do. I do not know what the word "allowance" particularly means here. If "allowance" here is to be taken as meaning sums of money and expenses, which are not subject to income tax, I am in agreement with the Minister that that would be an excellent definition but that is not the definition now applied to the remuneration which Deputies and Senators enjoy.
I cannot see how the Minister can reconcile the statement that what they get is not remuneration with its being subject to income tax. I do not know what legal advice the Minister has got which would attach to the word "allowance" a legal meaning. I have been unable to find a legal meaning for it. As a matter of fact, if a firm gives an employee a sum of money by way of an allowance, it does not save him from the Revenue Commissioners. The Revenue Commissioners may charge him income tax, if they are not satisfied that the money represents payment of expenses legitimately incurred in the course of his occupation. It seems quite clear to me that this definition includes members of the Dáil and Seanad. It is also clear that the Minister does not want them included. Therefore, they should be excluded.
There seems to be room for considerable doubt about this matter. If there is, the obvious thing to do is to put it beyond doubt. The definition seems to differentiate between an office and employment. It says "office or employment". We all know that members of the Oireachtas might not come within the definition of employment but I think there is every reason for saying that they would be caught in the term "office". I certainly think they hold office. I do not think it is any answer to say that in the Constitution and in the Bills, their pay is referred to as an allowance. Certainly, whether you call them allowances or salaries, there must be a distinction.
The Constitution clearly distinguishes between remuneration and allowances. It speaks of remuneration in relation to judges and other office holders and of allowances in relation to Oireachtas members.
We must take the ordinary, everyday meaning of the word, and anybody who receives money for services rendered is remunerated. If there is a doubt about it and the Minister honestly wishes that this rather stringent Bill should not apply to members of the Oireachtas, is it not a simple thing to add the few words suggested by Senator Hayes and put it beyond all doubt? When we are passing a Bill through this House, it is our duty to see that there are as few loopholes in it as possible and I think we should approach it in that spirit, in the spirit of saying it can be argued that what is in the Bill is not what we want and that it should, if possible, be put beyond all doubt.
Of course, we would like to have the thing as clear as it could possibly be but Senator Fitzpatrick talks about the meaning of words. Surely nobody would refer to a Senator as a holder of a public office.
Do we pass a selection board or the Civil Service Commission?
A more severe test.
Some people think we should.
There are countries in which it does apply.
Perhaps I can help. I am absolutely certain in my mind, and I have checked it with the authorities, that as the thing stands, it excludes members of the Dáil and Seanad, but in order to establish beyond any shadow of doubt that I am the most reasonable of men and that I pay absolute regard to the views put forward here, I shall accept this amendment, subject perhaps to one little change. I suggest that the amendment be altered to read:
but does not include membership of either House of the Oireachtas.
Would it not be as well also to include the words "for the purposes of this Act" because if an office holder has not been defined in any other section as a member of either House of the Oireachtas, if you did not say here "for the purposes of this Act", you might be establishing a rather dangerous precedent.
With the greatest possible deference to the Senator, Section 2 of the Bill begins by saying: "In this Act——".
Another point I should like to raise is whether or not this includes Ministers. Is it the intention that this Bill would cover Ministers?
They are members of the Oireachtas also.
It applies to Ministers.
One suggestion I would make is that the Bill go back into Committee, but I suppose any amendment the Minister accepts here may be altered in the Dáil, as long as the alteration is relevant.
I move amendment No. 6:
In page 4, line 11, before "shall" to insert: "and that its disclosure would be prejudicial to the safety or preservation of the State".
The amendment is directed towards confining the certificate given by the Minister under subsection (3) of Section 2 to cases where the breach of confidence is such as to be prejudicial to the safety and preservation of the State. My view, and that of a great many other people here, is that it is unjust and improper, to put it very mildly, that a civil servant or a member of a tribunal should be convicted on a certificate given by the Minister as conclusive evidence where there is a breach of confidence but where there is no public harm and I am seeking this amendment to provide that if there is public harm—if the safety of the State is prejudiced—the certificate may then be given. I refrain from making any comment now on a later amendment but having this thing in a general way is quite improper and unjust.
I should like to support this amendment. It seems to me that we, as one of the Houses of the Oireachtas, have a very special duty with regard to this Bill. If one looks at the history of parliamentary government through the ages in these islands one sees all the time that Governments are trying to strengthen their powers, especially in matters of secrecy, and one of the most cherished notions of the English monarchy, particularly in Tudor times, was that of secrecy—the star chamber. I am here referring to something in the remote historical past but I do say this House has a special duty in this Bill to see that the Government, for the best reasons in the world, will not take too strong powers in this matter.
I say again it is the tendency of Governments everywhere and always to take stronger and stronger powers in controlling what they consider to be secrets of State. The very phrase "secrets of State" is almost a sacred phrase among politicians throughout the world so I feel this House, in possibly the last opportunity the Parliament of our country will have for considering this, has a special duty here. Some of us are perturbed, despite the assurances of the Minister, by the thought that an honest person, an innocent person, may under this Bill be convicted of divulging secrets prejudicial to the State on a mere certificate by the Minister.
There are two safeguards against that—the safeguard of this House or the other and the safeguard of the courts. Here, without developing the general theme I have mentioned, I still affirm my personal conviction that this Bill is too drastically drawn, that this Bill might be used against honest and innocent people. It is on those general grounds that I support this amendment and will support others of the kind. I would urge this House to give this Bill special attention, deliberate consideration, despite the fact that we are coming on to the holidays, to the Christmas season. It is the duty of this House to give a Bill of this kind the greatest possible scrutiny.
I have the greatest sympathy with Senator Stanford's views but I think he should have put them forward on some other amendment. We all must be very careful, but what are we being asked to be careful about here? Senator Hayes wants to limit this to a certain type of disclosure. Surely this Bill goes much further than that, and very wisely so.
Supposing that as a member of the public, I am summoned before a tribunal to give evidence on some matter in relation to income tax and, in the course of that, I am bound to disclose my private interests in certain matters. If this amendment were to be accepted, that type of thing would be removed altogether from the ambit of the Bill. I do not think that the disclosure of my private affairs could be prejudicial to the State and a certificate, therefore, could not be given; but it would be very prejudicial to people called on to give evidence before such a tribunal. If they knew that disclosure of what they were saying might be in some way prejudicial to the State, then they would be very careful in what they said and probably would not be of any use at all to the tribunal as witnesses. I think that Senator Hayes, with the best intention in the world, is going slightly in the wrong direction. This amendment would not protect the liberty of the individual. It would do the very opposite, in my view.
Senator Sheldon has said what I intended to say, that is, that for the purpose of protecting the liberty of the individual, this amendment goes the wrong way around. For example, we are all bound by law under severe penalty, to make income tax returns every year. Let us assume that some clerk in the office of the inspector of taxes discloses part of a return but not the whole return. Then, if your whole file has to be produced in court and your private affairs discussed openly, a very grave injustice would be done to the citizen. It would mean in most of these cases, that citizens, rather than tolerate that publicity, which would indeed be hundreds of times in excess of the original disclosure, if the matter came to our knowledge, would make no complaint whatsoever.
We are in a completely different position in dealing with a civil servant from dealing with a bank, an accountant, a solicitor or anyone else, in that we need not go to such people if we do not wish to. We can go to a different bank or a different lawyer or accountant. With the Civil Service, we must make certain returns and have no choice of whether to make them or not, and we cannot make them to somebody else. If this amendment in its present form were accepted, a grave injustice would be done to the citizen rather than to the State. It is more important to protect John Citizen, who has to make a return, whether he likes it or not, and to disclose his private affairs. It would be doing him grave injustice to put the Civil Service in the same position as a bank, an accountant or someone like that.
I do not want to repeat with regard to this amendment what I have said from time to time on the Second Stage and again on Committee Stage. I fully agree with the approach of Senators Sheldon and Nash in this regard. They are quite right. Whatever about the merits of later amendments, the points they made are, to my mind, conclusive in deciding that this one should be rejected.
Might I conclude that we did discuss this subsection on the Committee Stage, and the Minister put up quite a number of arguments that seemed to be a fierce and vague combination of evasion and illusion. I was endeavouring to make the subsection better than it was on Committee Stage. I, therefore, put down amendments Nos. 6 and 7. If amendment No. 7 were agreed, namely, that the certificate, instead of being conclusive evidence, was only prima facie evidence, I would be quite satisfied to let amendment No. 6 go. I merely put down amendment No. 6 to indicate my dissatisfaction with the situation in which the Minister can use his certificate without any possibility of anybody examining it or doing anything about it for the purpose of helping to convict an accused person. I wanted to restrict that power to the case of disclosures which would be prejudicial to the safety or preservation of the State, but if the word “conclusive” were deleted from this subsection, and the words “prima facie” inserted, my purpose would be accomplished better, so perhaps we could leave it at that and come to amendment No. 7.
Might I simply add that I think the reason we are at cross purposes is that the Minister is trying to do two partly contradictory things? He is trying to get at the spy, the traitor to his country, and at the same time, at the harmless civil servant who gives away some information about someone's income tax, which I do not regard as in the same category.
Perhaps I am not in order in saying this, but there has not been a case in the last 40 years as far as I remember where a person's income tax was in fact disclosed.
I move amendment No. 7:
In page 4, line 11, to delete "conclusive" and substitute "prima facie”.
If this amendment were accepted by the Minister, it would put him in quite a good position, enabling him to prevent unsuitable disclosures and at the same time, relieving him of the accusation that he wants to exercise powers heretofore not possessed by any Minister. If he substituted for "conclusive" the words “prima facie”, then that would suffice to make the case against the accused person, as far as I understand it, putting the onus on him to prove then that the document was not secret or confidential. It would enable the judge, if necessary, to see the document and come to his own conclusion.
This amendment is relevant to a statement made on 20th November at Column 1533, by Senator Nash. He was talking about the introduction of this Bill and suggesting that the rules of procedure might be introduced into it "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." He added: "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 amendment has that effect. I may say, too, that it is simply not true to say that the powers given to the Minister by this word "conclusive" already exist. The Minister uses this certificate as conclusive evidence for a positive purpose. What does exist, and has always existed without any enthusiastic support from the judges, but with rather grudging support from them in England and here, is the negative power of a Minister to refrain from disclosing a particular document in any proceeding, whether civil or criminal. That power has existed and the judges have not been enthusiastic about it but they have for the most part admitted it. But there never has been any such power, and I have the greatest difficulty in believing that the Minister has been advised that there was a power, to use a certificate positively as part of the evidence to convict an accused person or help prove an offence. He may refuse to disclose a document. That is negative. Since the last occasion, I have read the judgments in the Cammell Laird and Rose Tattoo cases and I find neither judgment bears out the Minister's claim. He is deceiving either himself or the House and, as I say, I find it very difficult to believe that he was ever advised in this way. If he accepts this amendment, it would, I think, relieve him of the attempt to look for powers that are far too great and far too vague and leave him in a position quite satisfactory from the point of view of the disclosure of official information as defined in the Bill.
I should like to support this amendment very strongly. Here we have an opportunity to strengthen the other upholder of the liberty of the individual in our country, the law courts. It has been suggested that some of the terms of this Bill are contrary to the Constitution. I do not think that can be sustained, but we do not want in any way to infringe the rights of the law courts to decide ultimately matters of justice, and really the kernel of the attack on this Bill, from this side of the House at any rate and, to some extent, from the other side, is this feeling that the Government are taking too great powers. They are taking powers too great against the law courts in this matter.
It is the duty of this House to fight for this amendment very strenuously and put it through, if we can. I must say I personally was rather disappointed that the Minister did not bring in some fairly drastic amendment of this section of the Bill because it is herein the danger lies. Senator Hayes has put forward an amendment which safeguards the right of the individual citizen and safeguards the authority of the law courts. I hope this amendment will be pressed or else that the Minister will meet it in some way because otherwise the time may come when even the Minister himself may see that the powers given here are too strong.
I agree with what Senator Stanford said earlier that this is a very serious piece of legislation and one which should be closely scrutinised by this House, even though it is getting near Christmas and getting late in the day. The fact that the Bill has already been improved somewhat in this House encourages me to make the best case I can now against this section. I propose to make the substantial case against this subsection now rather than on later amendments, some of which are in my name.
Does the Senator not think he did that on the Committee Stage?
I do not, because then the Minister threw a few decided cases at me, cases which I had not then read but which I have read since. In my considered opinion, and in the considered opinion of a number of people, this subsection as it stands is unconstitutional. It is unconstitutional because it reaches into the court and seeks to do something which, under the Constitution, a court of justice is entitled to do, namely, to consider the evidence and decide what the evidence means. Several cases have been before the Supreme Court under various Acts in recent years. Quite a few of them have been held unconstitutional. Even as recently as yesterday we had the Customs Consolidation Act which has been on the statute book for many years.
And which is still perfectly good law in Great Britain.
It was challenged and part of it was held to be unconstitutional in so far as it sought to enable the Executive to decide what penalty should be imposed. In other words, it sought to take away from the court and give to the Executive the right to say whether penalty (a) or penalty (b) should be imposed. Every lawyer who spoke on this section in this House, even some of those behind the Minister, expressed the view that the section as at present drafted is unconstitutional. That is something of which the Minister should take heed. It is something which he should put right before this Bill becomes an Act.
This particular subsection is, as it stands, unprecedented. There is no authority for it either statutory or in case law. On the last occasion here, the Minister quoted to this House two cases as authority for this section.
I never did.
As I understood him, as authority for saying this was not a new departure.
I never did.
I have not time to go through the debate, but I leave it to the House to decide. If words mean anything, the Minister contradicted me and several others on several occasions when we said that this was something new.
I still do but I did not quote the Rose Tattoo and Cammell Laird cases for that.
The Minister's opening remarks were that he was sorry he had got my hair in a blaze about this, or words to that effect; there was nothing really new in it.
I still say that.
And the Minister then quoted the Cammell Laird case.
Not in support of that proposition.
Then I do not know in support of what the Minister quoted it, if he did not quote it in support of that proposition.
May I intervene? My whole argument is—why Senators persist in not perceiving it I just cannot imagine—that under the present law information does not have to be secret or confidential. The offence lies as long as what has been disclosed is official information. The Bill now provides, in addition, that the information must be secret or confidential and this certificate has regard only to proving the secret or confidential nature of it. In effect, therefore, there is no change in the law in that regard.
Would the Minister tell me in support of what proposition he quoted the Cammell Laird and Rose Tattoo cases?
I quoted them in support of my proposition that there is nothing new in the principle of the courts not going behind or refusing to go behind a Minister's certificate.
No, no. That is not so. The Minister is not right in that.
That has been my case all along.
Not at all.
My case rests on two grounds. First of all, the Official Secrets Acts to date merely deal with official information, whether it is secret or confidential, or not, and there is nothing new therefore in what this certificate purports to do because at the moment there is no need at all to prove that the information is secret and confidential. That was my first point. The second leg of my argument has all along been that this line of cases is there as evidence of a principle which the courts have recognised, that is, that where a Minister gives his opinion that the disclosure of documents would be prejudicial to the interests of the State——
It is not disclosed.
——the courts will not go beyond the Minister's word in that regard. I quoted these cases simply in support of the existence of that principle, and there is nothing new in the courts refusing to go behind the certificate of a Minister in regard to official information.
The Minister says he did not quote the Rose Tattoo case in support of his theory that this is not new. May I quote what the Minister said on the Committee Stage on 28th November, at column 1494 of volume 55 of the Official Report:
Mr. Haughey: 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 said that if we read the Rose Tattoo statement, we would find the Minister right. We have read it and the Minister is wrong.
Arising out of what Senator Hayes has said, the Minister may not have been aware that when he was quoting the judgment of the President of the High Court in the Rose Tattoo case he was quoting a dissenting judgment, a minority judgment, which did not prove anything. The Cammell Laird case arose in regard to a submarine, the Thetis, which was built by Cammell Laird. In the course of its trial trip it went down and did not come up and several men lost their lives. The dependants of some of these men sued Cammell Laird for compensation and the plaintiff sought in that case to have produced in court the plans and specifications of the submarine, the Thetis, and quite rightly, the First Lord of the Admiralty directed that the plans be not produced in court, on the ground that it would have been against the public interest to do so. There the matter ended. The plans were not produced and they did not prove anything. Presumably the plans were required by the plaintiff to prove either that the plans and specifications were faulty or that the submarine was not built in accordance with the plans and specifications. If the Minister had his way in this case, a certificate would have gone in from the First Lord of the Admiralty to certify that the Thetis was built in accordance with the plans and specifications——
How can the Senator say that?
That is what the Minister is doing here.
Not at all.
Let me make the case—and that the plans and specifications were according to the best standards known——
Not at all.
It would not have been open to the unfortunate dependants of the men who were drowned in the submarine to prove the contrary.
That is a travesty. The certificate can only prove that the information was secret or confidential.
In the present case the information must be proved to be secret and confidential. The Minister's certificate will prove that and that will be the end of it. In the Cammell Laird case, the plans were required to prove that the submarine was properly built.
The Senator is only assuming that. He has no authority for saying that.
I have enough intelligence to assume that must have been what they were required for.
The Senator should deal with facts, not assumptions.
In the headnote to that case it is stated:
A court of law should uphold an objection taken by a public department, called on to produce documents in a suit between private citizens...
At the end of that there is another paragraph which says:
When the Crown is a party to a suit, discovery of documents cannot be demanded by the other party as of right, although in practice, for reasons of fairness and in the interests of justice, all proper disclosure and production would be made.
This section here seeks to take away that right and to destroy the right of proof in a case where the people are the prosecutors, on the one hand, and an accused on the other. Therefore, I say the Cammell Laird case is authority for nothing only what every law student in the country knows— privilege can be claimed on behalf of the State in the production of documents. The Rose Tattoo case is authority for something similar.
Two detectives went to the Pike Theatre and witnessed the Rose Tattoo. A case was brought about the Rose Tattoo. One detective was asked did he get instructions from his superiors before going to see the play, and he said he did. He was asked to produce those instructions and he said that he would not because they were a confidential communication between himself and his superior. On the authority of his superiors he refused to produce them and, of course, he was not compelled to produce them. However, he had to go into the witness box and say what he thought of the Rose Tattoo and leave himself open to cross-examination.
The other detective went into court. He also saw the Rose Tattoo and sat through it. He was asked in cross-examination did he send a report to his superiors after having seen the Rose Tattoo and he said he did. He was asked to produce that report and he said he would not because he said it was a communication between himself and his superior officer and it was privileged. He was not asked to produce it and it was not taken as proof. The witness had to go into the box and give his evidence. Again the Rose Tattoo is authority for nothing but privilege. Again there is a quotation in the Rose Tattoo case from a case which was heard in the Federal Court of the United States of America where it says:
that, in criminal causes ... the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake the prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defence.
That is a statement which would commend itself to every fair-minded Senator in this House whether he sits on this side of the House or in front of the Minister on the other side. There is no danger that any damage will be done to the State by the information being produced in court and proved in court because there is a section in this Act which has not been challenged and which has not been objected to. I think it is Section 12 which says that if the State so requests, the case must be heard in camera. Therefore if there is any danger about the interests of the State suffering as a result of this information being given in court, the Minister's advocate only has to go into court and ask that the case be heard in camera and in camera it must be heard, in the absence of the Press, in the absence of anybody, except those immediately concerned.
Therefore I support the appeals made by Senator Hayes, Senator Stanford and others that this subsection be radically revised. I would be perfectly satisfied with amendment 7, which seeks to make the certificate prima facie evidence instead of conclusive evidence, because the accused has the right to question prima facie evidence and, if he can throw doubt upon it, the State will have to take it up. If it is conclusive evidence that is the end of everything; one important part of the case against him has been proved before he goes into court and nothing can be done about it. It can be done retrospectively, as the Minister admits, months or years retrospectively. This is a shocking piece of legislation which should never have been introduced and for which this House should not stand.
I am wondering whether we are not all arguing at sixes and sevens on this matter, without having due regard to the overall position. My personal fear is only that the subsection may be unconstitutional. My fear is not to protect the citizen but lest someone at some stage should be involved in some crime which would amount to treason to the State. If this evidence was produced and it was found on appeal to the Supreme Court that the subsection was unconstitutional, then that person would escape his well merited punishment.
I thought it was agreed on all sides of the House that there was not the slightest danger of abuse by the Executive of the powers given to it, that it was merely a question of the constitutionality of the subsection. Perhaps I am wrong because I am speaking only from memory but I understood Senator Hayes to say on the last occasion that he did not think, and he felt sure very few people would think, that a Minister would give a certificate that something was secret and confidential, if it were not, first because before such a certificate would be given, a Minister would naturally confer with his Government and if he were subconsciously actuated by a prejudice, it was most unlikely that the other members of the Government would be so actuated.
Is the Senator purporting to quote me?
I am not quoting the Senator but that is my recollection of what he said.
If that is so, the Senator's memory is particularly bad.
I understood Senator Hayes to say that even if a Government were agreeable to do such a thing, the Minister's officials would not stand for it.
That was a different case altogether.
That is what I understood from the Senator's remarks. We have to view this matter from its historical background. The position goes back to the 1911 Act which provided that the disclosure of anything whatsoever, by a civil servant, any information which had come to his knowledge by reason of his position, was a crime. In plain language, that means that if I bespoke a certificate of redemption value of a Land Commission annuity, the civil servant who gave it to me would be guilty of a crime. To protect civil servants against that provision, there was a provision in the Act that no prosecution would be instituted under it accept by the fiat of the Attorney General. Otherwise, the thing would get into an absurd position.
Since 1911, there has been a considerable change in methods by which official information can be disclosed. There are methods which were then unthought of, such as dictaphone records of conversations and photostatic copies of documents and so on. Therefore, in order to preserve the security of the State and the public, it became imperative on the Department of Justice to introduce some measure such as we now have before the House. The problem for the Department was to do so in such a manner as to prevent a ludicrous position arising such as arose under the 1911 Act and at the same time to protect information which is secret and confidential.
The manner in which the Department of Justice approached that problem is that they said that every civil servant has a certain amount of commonsense and if he should disclose information which is obviously secret or confidential, it is a breach of trust. If there is any dispute as to the question of whether information is secret or confidential, the Minister, by his sealed certificate, certifies that it is secret and confidential and that evidence is final and conclusive. However, that is the only aspect of the whole matter that worries me.
I had hoped that the Bill would be drawn in the form that any official information disclosed by a civil servant would be regarded, prima facie, as being secret and confidential thereby throwing on the civil servant who had disclosed it the onus of defending himself and of proving that the information was not secret and confidential.
Is that not what is in the amendment?
Yes, but under the subsection the Minister has first to certify that the information is secret and confidential and that is then prima facie evidence. You have a precedent for that in the Road Transport Act and other Acts. Under the Road Transport Act, if a lorry driver has not a trade plate and is found to be carrying goods, the onus is on him to prove that the goods are his own, that he is not carrying the goods of some other person for hire and reward. I had hoped that in every case, even without any certificate from the Minister, the onus would be thrown on the civil servant to prove that the information was not secret and confidential.
I had hoped that the Minister would have incorporated in the Bill itself the protection of the public interest which, at the moment, is dependent on decided cases such as those to which Senator Fitzpatrick has referred. If a civil servant is prosecuted, all that has to be proved is that he disclosed official information and then, prima facie, the information is secret and confidential. The onus is then thrown on the civil servant to prove that it is not secret and confidential. I had hoped that rights which at present exist in the State would have been incorporated in the Bill thereby enabling the State to refuse to produce any particular file or document if, in the opinion of the Minister, the production of that file or document is contrary to public policy. I felt that thereby the interests of everybody would be protected.
I can realise the Minister's difficulty but my opinion is that the section is unconstitutional. If that subsection comes before the Supreme Court, there is a strong likelihood that it will be found unconstitutional and therefore there is a danger that some utter scoundrel who has done grave injustice to the State may escape his merited punishment. The Minister is advised that it is constitutional. That being so, he is going to act on that advice. If a Minister of a particular Department has experts in that Department, he must accept their advice and of course in legal matters it is impossible to say who is right or who is wrong until the matter is actually decided by the court. I agree in principle that there is not the least danger of an injustice to an individual; my principal fear would be that some scoundrel would escape. I do, however, see a way out of that: if the Minister had any doubt he could in such a case instead of giving his certificate, send one of his officials to court who would prove that the information disclosed was of a secret and confidential nature.
The whole trouble is: What is the definition of "secret and confidential"? Is it secret to the State, secret to the Department or secret to the individual who has given the information? In the case of income tax returns, to whom are they secret? To the Department or to yourself? If the civil servants were not prima facie guilty, onus would unfortunately fall on the State to prove it and it would be utterly impossible. That is how I see the matter, but I wonder if we are not arguing at sixes and sevens. Our whole purpose is to prevent unnecessary prosecutions and at the same time to protect both the individual and the State.
If I may interrupt, I take it that the House has no objection to sitting late until we conclude?
Oh, no, I do not think so. There is no prospect that you could get this Bill finished tonight. Very important amendments have been put down and the speech we have just heard opens a whole new field. I see no prospect of it. If we could sit until 11 and finish, well and good, but there is no prospect in the world of that.
We have inserted a couple of amendments and the Bill must go back to the Dáil. It must wait until the Dáil meets and it seems to me that the most sensible thing and most satisfactory to everybody, including the Minister, would be to adjourn until whatever day suits the Minister after Christmas.
I had hoped that we could sit tomorrow morning at 10.30 but the Minister is not available. I do not see why the Seanad could not sit on now and finish it.
There is no great urgency about this. We have waited for 40 years and there is no urgency about the preservation of the safety of the State now. The Bill has to wait to become law, in any case, until at least 23rd January or so or whenever the Dáil meets. This is the Fourth Stage when members except movers of amendments can speak only once, so I see no reason why we should not adjourn this debate until the next suitable date after Christmas. We could do the Fourth Stage then and the Fifth Stage perhaps on the following day.
I see no difficulty about concluding the Fourth Stage tonight.
The Leader of the House may see no difficulty in concluding tonight but we on this side of the House do.
The Leader of the House must surely recognise that we have been extremely co-operative. We have always arranged the business without wrangling. I thought we would start this business at about five and finish at ten so that at ten we would be in a position where we had only one amendment to do and an hour to go, but the Leader of the House recognises and we all recognise that we are not in that position now.
Sitting late would mean throwing this debate to the winds important and all as it is—and it is important— or sitting into the small hours tomorrow morning and the question of human rights arises. I suggest that we adjourn at ten.
I should like to support Senator Hayes. It would be disastrous if we even appeared to rush a Bill of this importance through in a few hours and as the Minister said, his existing powers are wider than those given in the Bill.
What does the House want to do?
Adjourn at ten.
We are still on No. 7.
Are we finishing this amendment?
I do not think so. Leave it over.
Surely we are not going to leave a job half finished like that, even if Senators are anxious to get away, after all their talk about being anxious for work.
I should like to support the Minister on one point. He is right when he says that the courts will always support the Minister when he has given a certificate of this kind but where I disagree with the Minister is on the manner in which he supports his certificate. In the Bill, he supports his certificate only with his seal but in the past the courts have supported the certificate with an affidavit. That is the main point as I see it in the Cammell Laird judgment. I do not want to go on to plead the amendment which Senator Dooge and I put down but the important point is that all the Minister has to do is to put on his seal and the court is not allowed to inquire behind that seal. In the Cammell Laird case, the Minister had to bring in an affidavit in which he swears that he has personally considered a particular case or specific documents, that he himself is satisfied that it is secret or confidential and that he himself is satisfied that it is injurious to the public interest.
The Minister has told us in earlier discussions on the Bill that he is not trying to change existing law but is merely trying to codify the 1911 and the 1920 Acts and to bring in certain cases of law but he goes further and that is the whole constitutional point, as I see it, about this subsection. The matter is of the very greatest constitutional importance as I see it. I am afraid that I cannot agree with Senator Nash that everybody in the House is satisfied that there is no danger from an unscrupulous Minister. I think there is an opinion there. As I said on an earlier Stage, I am not satisfied. Senator Hayes said that he was satisfied that we need have no worry.
No, I said that sincere Ministers were more dangerous than unscrupulous ones.
Would the Senator agree that at the moment the information would not have to be secret or confidential?
Then what is the fuss about? It is a certificate which deals only with the secret or confidential nature of information which has been disclosed and at the moment it is an offence to disclose official information whether it be secret or confidential or not. So what is all the argument about?
The Minister has to support it.
It does not have to prove anything but that the information is secret or confidential.
Then why not leave us as we are?
That is what I am doing.
He has to bring in a certificate.
At the present moment, I do not have to prove anything about the information being secret or confidential.
You are introducing a more serious offence and cloaking it over.
As there are so many interruptions, would Senators agree to the Bill being recommitted so that Senators could behave as though they were on Committee instead of on Report?
We do not want a recommittal.
Let us finish this amendment now.
Will Senator Ross move the adjournment?
This is a very serious amendment.
Surely you have talked enough in the last hour? Surely we agreed to finish it?
That is a matter for the House.
Let us adjourn now.
I would have hoped that we would have the Minister's case before considering the whole matter because frankly some of us who are without legal minds find great difficulty in these legal arguments and in making up our minds. I certainly would like to hear the Minister and to read the debate.
Will Senator Ross move the adjournment?
This is very unfair.
Does the Minister want to speak?
It is most unfair.
What does the Minister want?
I certainly feel it would not be any great trouble to ask the House to sit until 10.30 p.m. or 11 p.m. to finish the Bill.
The Bill? No.
Surely we are entitled to finish the amendment we are dealing with?
I find myself in some difficulty in supporting this amendment. To some extent, it runs contrary to a later amendment of mine. I think that at this stage I must support this amendment and we will discuss it the next day.
Does the Minister want to speak on the amendment, Sir?
Senator Hayes may conclude. My case is known.
The Minister makes several cases about this amendment but they are all different. I listened this evening with great care to Senator Nash. His memory is extremely defective. I have the greatest difficulty finding out whether he was or was not in favour of the section. He voted for its retention in the Bill. I never spoke about this subsection being unconstitutional. I never said a word about that. It was Senator Nash himself who said it was unconstitutional. I am not a bit worried about its unconstitutionality. It may very well be unconstitutional.
Let me give an example of the Minister's views of the courts. This amendment of mine is to curb the Minister's certificate. The Minister has a particular view about judges. He does not like them. On the Committee Stage of the Bill, an allusion was made by me to the only case that was taken under the Official Secrets Act since 1922. That case was a malicious case taken maliciously by the Fianna Fáil Government against a colonel in the Army whom they did not like. The jury threw the case out. The judge said the case should never have been taken. The Minister's comment on that in these debates was that the judge made ill-considered remarks. That is the Minister's criticism of a judge.
This evening, my colleague, Senator Fitzpatrick, just casually mentioned that the Constitution was something you must construe and that as late as yesterday the Supreme Court found that part of the Customs Consolidation Act, an old British Act, was unconstitutional. The Minister's comment on that this evening was that it was still good law in Great Britain. Of course, it is good law in Great Britain but there is no constitution in Great Britain and the Minister knows that. The Minister's statement is a reflection on the Supreme Court. They found something to be bad law which the Minister said was good law in Great Britain. The British can pass any law they please. We are bound by the Constitution about which the Minister and his Party are never tired of boasting.
We are proud of it.
Is the Minister going to whip the Supreme Court?
I got them an increase in salary in spite of the very best efforts of the other side of the House.
If Senator Hayes wants us to discuss two Constitutions we will do so.
I do not want to discuss two Constitutions. Senator Ó Maoláin does not always remember that he is the Leader of an important House of a Parliamentary Assembly. He should behave accordingly. Perhaps it is difficult for him.
It is very difficult, having regard to those on the far side.
We are sitting after 10 o'clock to deal with an amendment. Perhaps we could deal with the amendment?
I am dealing with the amendment. It discloses the Minister's view of the courts. He wants to keep the courts out. He made a remark which is a reflection on the Supreme Court—he must know he is wrong— that it is still good law in Great Britain but it may be, indeed is, bad law here. The Supreme Court, which is the proper court, found it was contrary to our Constitution. The Minister is aware of the difference between the two situations.
I do not understand Senator Nash's point about the constitutionality of this matter. I am not worried about that at all. It is arguable, of course, that the finding of a matter of fact is for the courts and not for the Minister. If Senator Nash is worried as he says he is—I am not quite clear—then I think that with his knowledge of the historical background and practice of law, he could, perhaps, have put down an amendment himself.
I never said any of the things which Senator Nash attributed to me. What I said in the course of some remarks— it was in connection with an amendment by Senator Ross—was that this kind of thing was framed by sincere, competent and intelligent civil servants who wanted to encompass the whole world and wanted to avoid the courts because civil servants, and the Minister who know what is good for everybody, do not like judges because judges look at things from a different angle. The civil servants want to keep them out.
We want to pay them.
I am all for paying them.
The Senator was not recently.
You tried to shoot them.
I never did. I never tried to shoot a judge in my life.
Senator L'Estrange's Party did quite a lot.
The Minister can be acquitted. The point in this whole matter is the Minister's evasiveness. He has constantly misused the word "privilege". He has constantly said that the courts accept the Minister's word. They do. They accept it in order to keep a document out of the case. The Minister is not going to persuade me he is so stupid that he does not know the difference between keeping a document out of a case and putting it into a case. What he is doing is giving conclusive evidence against an accused person. That is not the law and never was the law. It is not allowed in England and would not be allowed here. There is some doubt as to whether, if he puts it in, he is doing something contrary to the Constitution.
The only conclusion I can come to is that the Minister is either deceiving himself or is engaged in the practice of deceiving the House. He was very evasive about this whole matter. He recommended us to read certain cases. He has told us he did not recommend us to read them for the purpose of elucidating what he had said about this subsection. I read an extract from the debates which proves he did tell us that. All any reported case suggests is that the Minister need not produce a document. This subsection provides for the production of a certificate, which is presumably a document, which is conclusive evidence that goes to prove the guilt of an accused.
The Minister should not be allowed to do that. It is not because he is unscrupulous. I do not think he is, or that he will be succeeded by an unscrupulous Minister but the Executive should not have that power over the citizen. The courts should not be kept out of it. The Minister is deceiving the House about it. When we meet next time, I should like to see the Minister produce from the Attorney General an opinion that this subsection where the Minister gives a certificate which is conclusive evidence against an accused is already the law or the practice of the courts. It is not the practice of the courts and the Minister knows it is not, but he persists in saying it is. Senator Nash knows it is not. I do not know what the Senator meant by his last speech. He did not put down an amendment himself; he seemed to be satisfied with this amendment but apparently he is not. I do not think the House should be deceived on this important matter and I am therefore pressing this amendment.
- Ahern, Liam.
- Boland, Gerald.
- Brady, Seán.
- Brennan, John J.
- Browne, Seán.
- Cole, John C.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan, Thomas P.
- Hogan, Daniel.
- Killilea, Mark.
- Lahiffe, Robert.
- McGlinchey, Bernard.
- Moloney, Daniel J.
- Mooney, Joseph M.
- Nash, John Joseph.
- Nolan, Thomas.
- Ó Ciosáin, Éamon.
- Ó Donnabháin, Seán.
- Ó Maoláin, Tomás.
- O'Reilly, Patrick.
- O'Sullivan, Ted.
- Ruane, Thomas.
- Ryan, Eoin.
- Ryan, Patrick W.
- Ryan, William.
- Sheldon, William A.W.
- Yeats, Michael.
- Butler, John.
- Carton, Victor.
- Crowley, Patrick.
- Fitzpatrick, Thomas
- Hayes, Michael.
- L'Estrange, Gerald.
- Lindsay, Patrick J.
- Davidson, Mary F.
- Desmond, Cornelius.
- Dooge, James C.I.
- McDonald, Charles.
- Murphy, Dominick F.
- Ross, J.N.
- Stanford, William B.
Sul a gcuirim an Seanad ar ath-ló, ba mhaith liom beannachta na Nollag agus na h-aithbhliana a ghuí do gach Seanadóir agus don Chléireach agus don Leas-Chléireach. Gach beannacht agus rath go raibh oraibh go léir.
The Seanad adjourned at 10.20 p.m. sine die.