Seanad Éireann debate -
Wednesday, 23 Jan 1963

Vol. 56 No. 1

Official Secrets Bill, 1962—Report Stage (Resumed).

Debate resumed on amendment No. 8:

In page 4, line 12, 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."

Professor Quinlan

I retabled this amendment on the Report Stage in the hope that, having had a month to think this over, the Minister may be able to give us somewhat more satisfactory interpretations and assurances than we got the last day and, if he does not accept the amendment, at least he may be able to allay some of the fears we entertain about the use that can be made of this section.

The first thing I hope the Minister in his reply will be able to clarify for us is the position about boards—what boards are subject to the Official Secrets Bill and what are not. We went around the mulberry bush on the Committee Stage. At one point, Bord Bainne appeared to be subject to it and at another point it did not. The best way the Minister can elucidate the dividing line to be drawn between boards which get their funds wholly from State support and other boards is by means of concrete examples.

I hope that in the month that has elapsed the Minister has had the opportunity of reviewing the structure of our leading boards and so deciding whether or not they fall within the ambit of this measure. Such lack of precision is very dangerous in a Bill of this sort. We waited 40 years for this Bill without any ill effects and with only one prosecution in all that time. One would think the opportunity would be taken to scrutinise whether this Bill is likely to be used in connection with boards.

I am concerned in this amendment with protecting, especially, commissions. The commission is the most valuable instrument of inquiry we have in a democratic State. It is something apart from Government machinery and apart from the Civil Service inquiry. It is composed of independent citizens outside Government and Civil Service circles. They sit and take evidence and bring in their findings. Up to this, these commissions have been treated with the same respect as such commissions are treated in all democratic countries and there was a feeling that they were independent of ministerial control. Occasionally it has been suggested—I do not think that it has been established—that there have been some links in the background. I do not accept that, but it has been charged that as regards various commissions there has been that type of hidden control.

Now the Minister is coming into the open with this terrifying power of certifying what is official information and the power to bring members of commissions before a court under which they are liable to either a penalty of up to £100 or six months' imprisonment, or both. Since the last meeting, I have checked with many people both here and elsewhere who have sat on commissions. Such penalties or such dire threats are unheard of in England and the type of English independent expert and public-spirited citizen who condescends to spend his time, free, gratis and for nothing except for travelling expenses, sitting on a commission would not sit on such a commission if he were subjected to threats such as are being issued under this Bill. It would be regarded as altogether beneath the dignity of such independent citizens to be told that they themselves did not know their place and did not know what was confidential information without having the Minister to certify it and without having to drag them through the courts.

I cannot see the reason for this provision. There has not been any claim by anyone in either House that commissions have in any way abused their powers in the 40 years we have had self-government. On the contrary, the public-spiritedness and devotedness of members has been commented on and appreciated by all. Why then should this sword hang over their heads in the future? What have they done in the past to deserve this? From other sources, there are revelations of official secret information. Those sources are not included in this Bill. Every other day we read in the papers of the confidential happenings within the Board of Telefís Éireann. We know exactly whom they are considering for various posts. We had in the Sunday papers photographs and details of the candidates being considered for the post of Director General. Similarly in the case of the post of Controller of Programmes, we have had information coming forth as to who are being considered and how they are placed. Where is that coming from? Why does the Minister not concern himself with blocking these leakages of information that should not be leaked and information that would not be leaked by any self-respecting member of any commission that was ever appointed here?

That is why I want to protect commissions here. There is no need to protect the Civil Service from the effects of the Official Secrets legislation. First of all, the decision whether to prosecute or not is with their colleagues in the same Department and a lesser penalty can be brought in by the Minister concerned. He can stop an increment or reprimand a person. He can do any one of those things to show his displeasure with what has been done and then the decision rests with him as to whether to hand it over to the courts or not.

There is no such protection for the citizen who is outside the Civil Service. He is automatically prosecuted or he is not, and, as the Minister told us in his reply on Committee Stage, certification resides solely with the Minister and it is a certification that is not ruled on until the matter comes to court level. In other words, it may be ten or 20 years after the commission sat that some Minister has to pore through the files of the report of the commission and attach his signature to a certificate to the effect that some piece of information that is in question is official information. That is a deplorable situation, a situation in which no member of any Commission could have any confidence in the future because at some time or another someone might use this Bill, when it is an Act, to bring him through the courts.

There has been only one case in 40 years and it was a disgrace to our State. A highly respected man was brought through the courts on a flimsy charge, and when the document was finally exposed before the court, the judge threw it out, but the whole of the proceedings cost the unfortunate man a couple of thousand pounds. He had no means whatsoever of recouping that money. If you are dragged through the courts, win, lose or draw, you are the loser because you have to pay all the legal expenses involved.

That being the case, we should at least let the commissions be masters in their own house, and leave them to decide, at their final sitting, or at some late sitting, what information is to be held secret, and whether it should be held secret for three, five or ten years, or whatever the period may be. In effect, they make that decision in any case with regard to most of the material, because they write a report and they include in the report the evidence which they decide to submit to the Minister for publication. I submit that in that way they have already made a decision on what material is to be published, that there is nothing in their view prejudicial to the interests of the parties who have given evidence, and nothing to prevent its being published.

They make that decision. Why not let them decide also on the further items that are not considered to be sufficiently important to be published? There are two classes: that which is not sufficiently important to be published, and that which by its very nature must be regarded as confidential. Why not let them draw the dividing line between the two, so that members will know where they stand, rather than consign that work to some obscure part of the Minister's office to be dragged forth in ten, 20 or 30 years' time for the sake of a prosecution of a member of a commission? I think that is altogether wrong.

If the Minister takes the standpoint he was going to use, that boards wholly remunerated by the State should come under this, surely there is no remuneration at all for most commissions? If members of boards should be exempted from the operation of the Official Secrets Act, due to the fact that all their income does not come from the State, is the case not inevitably stronger for the exemption of the unpaid members of commissions who show their good citizenship by spending hours on such a thankless task as sitting on commissions?

I appeal to the Minister to clarify the points I have raised so that we will at least know where we stand. I appeal to the Minister to accept this very reasonable amendment which is only a poor substitute for the proposed deletion of commissions from the scope of the Official Secrets Act altogether. Since we failed to do that, let us at least pass this amendment and thereby protect commissions. Why should we impose on commissions penalties which are not imposed on commissions sitting anywhere west of the Iron Curtain? Why should we do that, especially since no one has come forward to say that there has been any abuse of confidence by any commission in our 40 years' experience? Why then are we chasing this phantom of leakages that might occur?

If 40 years of self-government have shown that our commissions are trustworthy, and in line with other democratic States—and our new State has been able to rise to the heights and has been able to have trustworthy commissions—why now should we seek to degrade these commissions by saying: "You have behaved properly in the past, but we will see to it that if you do not respect confidences in the future, we will have a £100 fine or six months in prison awaiting you"? I cannot see any self-respecting person serving on a commission if we are so to degrade them.

Mr. L'Estrange

I formally second the amendment.

Minister for Justice (Mr. Haughey)

I feel that this matter has been fully discussed on Committee Stage and, indeed, I also believe that the general feeling of the Seanad is with me and not with Senator Quinlan on this amendment. There are several in the Senator's argument but we have been over them on Committee Stage, and I think it would be rather a waste of the time of the Seanad completely to rehash the discussion again on the Report Stage.

Senator Quinlan spoke about English experts and so on, and said they would be appalled if they were asked to sit on a commission if this sort of provision were applicable to them. I cannot understand how they could have said that to Senator Quinlan. The Official Secrets Acts of 1911 and 1920 which are more stringent, apply to them in England at the moment.

Senator Quinlan asks us to respect commissions. That is exactly what I am trying to do here. As I explained at some length on Committee Stage, it is important that commissions of this nature, to be valuable and useful, should have available to them the maximum possible amount of information of all sorts including secret official information. Government Departments should be able to give these commissions, in complete confidence, all sorts of information and figures and so on, which they would not like to have revealed to the general public. I certainly could —and I am sure every member of the Seanad could—visualise the work of these commissions being practically stultified if there were to be no prohibition whatever on those commissions divulging information which they got either from official sources or private individuals. It is probably one of the most sensible provisions in the Bill.

The Senator was not here, I think, when we were discussing the earlier amendment moved by Senator Hayes, but I indicated then that my approach to the question of what type of boards should be included within the ambit of the Bill was that we should draw a clear line of demarcation and apply the test whether or not the office or employment concerned was wholly remunerated from funds provided by the Oireachtas. That is a perfectly valid test and a clear-cut line of demarcation and it is about the most satisfactory test which we can apply.

Professor Quinlan

The Minister has not answered any of the points I have raised.

Tomás Ó Maoláin

May I get a point clear? On Report Stage, how often is a Senator permitted to speak?

An Cathaoirleach

Senator Quinlan, to conclude.

Professor Quinlan

Yes, I have the right to conclude, having moved the amendment. The Minister has not answered a single one of the many highly pertinent queries I put to him on this. It is typical of the whole approach to this Bill where the main issues have been side-stepped. I challenge the Minister to say that there was any reason, any grounds, for any charges in the past against commissions in our 40 years that they had divulged any information they should not have divulged. I challenge the Minister also to quote the provision of the 1911 Act that is anywhere as stringent as what is here. There is no such provision in the 1911 Act and the 1911 Act is the Act that governs the position in England today. There is no doubt that this is away beyond anything in the statutes in England governing commissions and there has been no case of prosecution of a commission in England anywhere under the 1911 Act for divulging secrets. If they were State secrets of this country, for defence, and so on, that is, of course, a different situation.

Again, the Minister said the feeling of the Seanad was with him, in other words, that the Seanad here wishes to impose threats and penalties on commissions that have not been invoked up to this. I take it that every member here is fully satisfied with the excellent work that commissions have done in this State and I take it that the members here see no reason whatsoever for threatening members of commissions. They are already sufficiently responsible citizens to know their duty and their responsibilities as members of a commission and to know how to treat secret information.

Finally, the Minister in his reply, again typical of the refusal to face issues, made it appear as though my amendment was seeking to exempt commissions or remove commissions from the scope of this Bill. The amendment, which I shall read again, proposes nothing of the sort. I said we had failed to get that established. The amendment merely proposes that the decision on whether any particular document should be labelled as official information should be made by the commission itself rather than by some official in the Minister's office who had had no connection with the commission, who even might not have been born when the commission sat and yet had the—I will only call it arrogance—to sit and decide what should be labelled official information and what should not, on the commission's work.

Consequently, I must press this amendment as something that is necessary to ensure that commissions continue to enjoy the esteem that they hold in this country.

Amendment put and declared negatived, Senators Stanford and Quinlan dissenting.

Professor Dooge

I move amendment No.9:

In page 4, section 2, between lines 12 and 13 to insert:

"() The Minister's certificate shall be accompanied by an affidavit made by the Minister stating that he has personally considered the official information specified or indicated in the certificate and has himself formed the view that the information is secret or confidential and that its disclosure would be injurious to the public interest."

The purpose of this amendment is to write into Section 2 of this Bill the safeguards and the necessary circumstances that have been laid down by the courts when these courts have been deciding questions of privilege, privilege in the sense of the removal of documents from out of court during the hearing of a case. We have discussed previously whether indeed what is being done under this Bill is not radically different in nature from what is done when documents are removed from a case and what is being pressed here is that at the very least we should not enact here a method of procedure which would not have every safeguard which exists in the present practice and law of privilege.

Before explaining why the amendment is put in the form that it is, it might be desirable to clear the ground in regard to certain items. There has been in the debates on this Bill and, in particular, in the debates on this section, a certain amount of talk at cross-purposes and, in particular, there has been a misunderstanding between the Minister and some members of the House as to what exactly the other has been talking about when we have talked about whether or not what is attempted to be done under this section is something new. We can look at this in several ways.

First, if we ask ourselves whether the principle of what is being done under subsection (3) is new, we can say straight away that we can agree with the Minister when he says that what is being done under this subsection is not new in the sense of being more onerous than what is being done under the 1911 and 1920 Acts.

Mr. Haughey

We are progressing.

Professor Dooge

If the Minister had been clearer on the earlier stages, agreement could have been reached much earlier. As I say, we can agree when the Minister says that this is not new in the sense of being more onerous. This leaves aside entirely the question whether or not in this day and age the 1911 and 1920 Acts are not indeed more onerous than they should be but we will leave that aside for the moment. There is however another point and that is the point which has been continually put to the Minister during these debates: that subsection (3) is new in so far as it represents a new mode of procedure and in so far as it represents a procedure which is less desirable than the procedure at the moment. Indeed, it has been put that not only is the procedure proposed by the Minister less desirable than that at the moment but that the procedure of the moment is itself undesirable.

What the amendment seeks to do is to bring the procedure proposed under the Bill into line with the present procedure concerning privilege. This is all the amendment attempts to do. It attempts to attach to the Minister's certificate the conditions that are now necessary in cases where documents are removed from a case. Now it is no longer open to us to argue here as to whether a certificate of proof should not be disallowed as being entirely different in nature from a certificate of privilege. The Seanad has decided on this point through the particular machinery which has been set up for determining the collective wisdom of the House. I think we should remember, against this background, that there is a difference between the two cases. We should remember this when we are considering whether at the least there should not be given in regard to privilege and removal of documents, whether every one of these safeguards should not be given under the procedure of Section 2.

There is another point, I think, on which the Minister and those members of this House who have been anxious over certain points of this Bill are at one. I think we are agreed that the present law concerning privilege, that is, concerning the removal of documents from a case, can be found in the Cammell Laird judgment of the Viscount Simon and the two judgments of the Rose Tattoo case. These are the agreed authorities on the question.

The amendment is framed on the basis of the judgements given in these two authorities. This amendment has been framed so that we may be quite clear that what is done and what is allowed to be done under these authorities and nothing more, nothing more restrictive of the right of the individual, nothing more dangerous to the liberty of the subject than is allowed in the Cammell Laird and in the Rose Tattoo judgements should apply to this Bill.

I would refer the Minister and the members of the House to these judgments and to the wording of the judgments in regard to particular points. In the Cammell Laird case, I want to quote from the judgement of Viscount Simon. It is given in the All England Law Reports, 1942, Volume 1. On page 593, at letter "D", there occurs the heart of the Viscount Simon judgment and this is later supported in the Rose Tattoo case:

The essential matter is that the decision to object should be taken by the Minister who is the political head of the Department and that he should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced either because of their actual contents or because of the class of documents —i.e., departmental minutes—to which they belong.

It can be said that the Minister, in so far as he accepted an amendment in the Dáil that the certificate can only be given by him under his Ministerial seal, has ensured that this action—this giving of the certificate— will be done by the Minister himself. But he has not ensured that it will be done on the basis of a personal examination and the personal formation of the opinion that the revelation of these documents will be contrary to the public interest. Accordingly, he has not met the conditions given in the Cammell Laird judgement—and, as I mentioned earlier, the amendment seeks to remedy this defect.

Now, the question arises, which has agitated us here and which is discussed in this judgment, whether or not the Minister's certificate is conclusive. In this respect, I quote again from the judgment of Viscount Simon, from the same volume, page 595, letter "D":

Although an objection validly taken to production on the grounds that this would be injurious to the public interest is conclusive, it is important to remember that the decision ruling out such documents is the decision of the judge. Thus in the present case, the objection raised in the respondents' affidavit is properly expressed to be an objection to produce, except under order of this honourable court. It is the judge that is in control of the trial, not the executive but the proper ruling for the judge to give is as expressed above.

Here, I think it is clearly laid down that while the certificate is conclusive —and I agree with the Minister on this point—it is conclusive only when a judge says it is conclusive. The judge has no option but to accept— but the acceptance must be made in court. According to the Cammell Laird judgment the acceptance of the certificate as conclusive must be an acceptance by a judge in court and the final conclusiveness does not occur at the behest of the Minister in the Minister's office.

There are other sections of this judgment to which I will refer here—I do not intend to quote them directly— which are very relevant to this. I would commend them to the Minister because Viscount Simon in this judgment, which is acknowledged as a judgment of the highest merit, goes on to indicate the circumstances under which a Minister should give a certificate. These are on the same page, 595, letters "E", "F" and "G". Among these remarks he said:

"It is not a sufficient ground that the documents are "State documents" or "official" or are marked "confidential". It would not be a good ground that if they were produced the consequences might involve the department or the Government in Parliamentary discussion or in public criticism or might necessitate the attendance of witnesses or otherwise of officials who have pressing duty elsewhere."

The main point here is that it is laid down in the Cammell Laird judgment that, even if a document is stamped confidential, that is not a sufficient ground for a Minister to certify it as such and to seek to have it removed from a court of law, that there must be a clear conflict with the public interest.

Of course, this is an English judgment and it is necessary for us to follow it up by asking what the Irish law states in regard to this particular matter. If we turn then to the Rose Tattoo case, we have two judgments. First, we have the judgment of Judge Davitt, the President of the Court, which is, in fact, a minority judgment. We also have the judgment of Judge Dixon with which Judge Teevan agreed and which was the majority judgement of the court though, indeed, they accepted the review of the relevant cases by Judge Davitt in all particulars. If we look at this particular case—and I quote now from the Irish Law Report of 1959—on page 115 we have, in the judgment of Judge Davitt:

Duncan v. Cammell Laird and Co., Ltd., undoubtedly is conclusive as regards the jurisdiction of the courts in England. It is not of its own authority binding upon the courts here.

Following this comment, Judge Davitt entered a lengthy review of Irish cases. The conclusion, which comes on page 120 of the same judgment, is:

There is no difference between the views taken in the two jurisdictions as to the nature of communications for which privilege in this sense may be effectively claimed.

So Judge Davitt, after reviewing English Law, agreed that the Cammell Laird case is the expression of English law and having reviewed Irish case law, comes to the conclusion that there is no difference between the two jurisdictions. Then he comes to his specific judgment following this review, and I quote now from the judgment of Judge Davitt, on page 133 of the same volume.

In whatever manner the claim of privilege is made, the Court will not allow it unless satisfied that the head of the department of State concerned or, if of sufficient authority and responsibility, the head of a sub-department, has in fact considered the communication in question, and has in fact formed the opinion that this disclosure would be detrimental to the public interest.

In other words, Judge Davitt says that in a case of privilege privilege cannot be granted unless the conditions which are being put in this amendment are met with. He goes on at the same page to say:

Certain classes of communications, whether oral or written, including confidential reports made in the course of duty by a police officer to his superiors and instructions given by superior to subordinate police officers, even if otherwise admissible in evidence must, in both civil and criminal cases, be excluded where a proper claim of privilege is made.

What is the position in regard to the majority judgment? If we look at the majority judgment we shall see that Judge Dixon at page 138 of the same volume quotes from the Cammell Laird judgment:

The principle to be applied in every case is that documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld.

He goes on to treat of the way in which these documents can be excluded and he points out that we have two types. We have documents which are confidential by their nature and documents which belong to a particular class. In regard to documents that are of a particular class Judge Dixon whose opinion is the majority opinion in the Rose Tattoo case which gives the Irish law on the subject says:

It is, I think, a matter for the Courts to say how wide or how narrow the category should be.

Again, even when a class of document is admitted the limits of that class shall be set by a Judge in a Court. I do not want to weary the Minister or the House further with these quotations but I think they are necessary in order to place beyond doubt that simply giving a certificate under seal is not sufficient in cases where it is sought to remove documents from a case. If this is not sufficient to remove documents from a case surely it is far less sufficient to bring in a certificate which may be a material part of the proof in the question of the guilt or innocence of a person who is arraigned under this Bill?

The existing law of privilege says that the Minister must himself have examined the documents, that he must himself have formed the opinion that their production is detrimental to the public interest. Secondly, it is clear that the present law of privilege is that the decision to exclude is a matter for the courts and not a matter for the Executive. Thirdly, it is quite clear that in Irish law in the judgment of Judge Dixon on the question of whether a class of document comes under the law of privilege or not is again a matter for the courts.

Therefore, this amendment is not asking for too much. It is not asking what we asked for in previous discussions in this debate. We asked actually that there be no certificate of this type because we objected to the idea that any ministerial certificate should be part of proof. Now we are asking for very little. We are asking only that the same conditions should be attached to the certificate to which we objected in vain as are attached to a certificate for documents removed in a civil action or documents removed in a criminal action so that police methods or sources of information would not be revealed.

I want to say to the Minister, though it might appear to be contrary to what I have been doing in the past few minutes, that we are here to make law, not to interpret it. That is our job and I should like the Minister to look at the law as it stands. The Minister has said in this debate—may be he said it in the heat of debate when we were at cross purposes in Committee—that this had been accepted by the judges and the judges were happy about it. I do not think the judges are happy about it and if the judges were here today and were free to talk as we are free to talk here in the Seanad I do not think they would be happy about it.

Mr. Haughey

I did not actually say they were happy. I think I said they reluctantly accepted it.

Professor Hayes

The Minister said: "Unhesitatingly accepted by the courts". That was on 14th November. I think it has been accepted with great hesitation.

Mr. Haughey

I did not say they were happy. I agree with Senator Dooge that judges have always complained about having to accept this but they always accepted it without hesitation.

Mr. Fitzpatrick

The Minister did say his own Party were happy about it and it transpired they were not.

Mr. Haughey

There are no Parties in the Seanad as far as I am aware.

Professor Hayes

Do not let us get at cross purposes again.

Professor Dooge

Let me come back to the point I was making which was that our job here is to make the law not to interpret it as judges do. I do want to give one last quotation from what is the Irish law on the subject. I want to quote from what Judge Davitt said on this subject when dealing with the law of privilege. He said, having given his judgment:

I recognise that these conclusions may involve difficulties in their application in practice; and if I were free to pick and choose what appeals to me, whether in the way of principle or authority, I would favour the view that the issue of disclosure or non-disclosure should be decided by the Court on objection by counsel in the case or by any other person legitimately concerned, or raised by the Court of its own motion; that the Court in deciding the issue should be entitled to act upon evidence the conclusiveness or sufficiency of which it should itself determine; and that it should, where necessary, privately consider the communication in question.

We have a chance here to do something towards allaying the anxiety not only of the members of this House but also of the judges sitting on cases concerning the removal of documents. As I say, we looked for a lot in this Bill and we have been disappointed that the Minister has not seen the dangers we see in this section. In this amendment we do not ask for so much as we asked before in regard to safeguards. This is the very least the Minister could do in respect of safeguarding the liberty and the good name of people who might be arraigned under this section.

Mr. Ross

I should like formally to second this amendment. There is very little I want to add to what Senator Dooge has said because he has so excellently put our case. I should like, however, to underline one or two points because it does seem to me that this subsection and this amendment deal with a question of considerable constitutional importance because they involve the right of the Executive to restrict the material which might otherwise be available to a court. We have to be extremely careful in considering this Bill to see how far we can go in allowing the Executive that right and in deciding the manner in which the Executive shall be allowed to exercise that right. The problem as I see it lies really between the Minister wishing a certificate to be given under his seal or under the seal of any Minister, as against the form of affidavit for which we are pressing.

I can find nothing which will show me, and satisfy me, that the form of sealing proposed by the Minister is such that the Minister is compelled to do, and is compelled to show to the courts that he has done, those things which are laid down in the Cammell Laird judgment. These were in no way altered by the Rose Tattoo judgment, and we have set them out in the form of our amendment, that is, that the Minister has personally considered the official information specified, that he has formed the view that the information is secret or confidential and, finally, that its disclosure would be injurious to the public interest.

It may well be that a Minister in personally affixing his seal, and signing his signature to his own seal, considers these points, but it will not be clear to the courts, nor will it be clear to the public that he has carried out that procedure. What we wish to do, and what we are asking the Minister for, is really a very small thing because we are asking him to show in an affidavit which he puts before the court—as Senator Dooge has so carefully pointed out, it is ultimately for the court to decide——

Mr. Haughey

What if a company seal is attached to a lease? If a lease is sealed by a company and that lease is produced to the court what happens?

Mr. Ross

If it is properly sealed and authenticated it is accepted.

Mr. Haughey

It is, and you do not go rushing in with affidavits.

Mr. Ross

That is purely a civil matter. It is not a criminal matter which this is, nor is it a matter of vital constitutional importance, which this is. I think it is a completely different case.

Senator Dooge quoted very carefully from Lord Simon's judgment. May I quote one further excerpt from the House of Lords' judgment because I think it sums up our intention. After the last quotation read by Senator Dooge Lord Simon said:

In a word, it is not enough that the Minister of the department does not want to have the documents produced.

All we ask for in relation to the amendment is that the Minister—I am sorry for referring to the Minister; I should say “a Minister”—when affixing his seal, will show by affidavit the mental process through which he has gone in affixing that seal. All we ask is not merely that the ordinary democratic process is done—and it may well be done when the Minister is affixing his seal and the procedure is being gone through—but that it may be seen to the courts and seen to the public to have been done.

Professor Stanford

On a point of order, is it possible for a Senator to speak after the Minister in this debate?

Professor Hayes

Yes.

Professor Stanford

In that case I shall defer my remarks.

Professor Hayes

It is the mover who concludes, is it not?

Mr. Lindsay

Timeo Danaos et dona ferentes.

Mr. Haughey

I am not sure of the etiquette of the matter.

An Cathaoirleach

It is possible for Senators to speak after the Minister. The debate is concluded by the mover of the motion.

Mr. Haughey

Is it your wish that I should speak now?

An Cathaoirleach

That is a matter for the Minister. It is difficult for the Minister to reply unless he has heard the full case.

Mr. Haughey

I should like to wait to hear what other Senators have to say so that I may be fully aware of the views of the Seanad on this amendment before I attempt to reply. I think that would be the most valuable procedure we could adopt.

Professor Hayes

I should like before I speak to hear what the Minister has to say on what seems to me to be a very powerful speech and indictment of the Minister by Senator Dooge. I am willing to exercise my rights at any moment.

Professor Stanford

I must say I think the Minister's view point on this matter is reasonable. I do not intend to say very much. First I should like to say that this is the last thing we can ask on this Bill. Much more drastic amendments were put down earlier and were rejected, though at the time the Minister gave the impression at one stage—and we were convinced that he was listening to our arguments very carefully—that he might yield. I should like to emphasise once again that many people in the country are perturbed by the over-strength of some of the provisions of this Bill. We would be reassured at the minimum level at least—it would be a better reassurance if he accepted this amendment—if he could satisfy us now that sealing by the Minister entails just as much as an affidavit entails. That would be something, but I cannot see that it is possible.

Senator Dooge's amendment, supported by Senator Ross, is what the House should, if possible, insist on. May I, in conclusion, pay a tribute to the lucidity of senator Dooge's exposition of this very complicated question? I should also like to congratulate him on the most widely split infinitive I have ever heard in my life. There must have been at least 12 words between the "to" and the verb.

Mr. Haughey

I should like to add my voice to the congratulations to Senator Dooge on the obvious amount of work which he has put into this matter and on the quality of his statement. May I say that one of my reasons for congratulating him is that I think I may modestly suggest he has now come to see exactly what I have been driving at since we began these discussions. I think Senator Hayes is absolutely wide of the mark when he says that Senator Dooge's comprehensive and lucid analysis is an indictment of my position. I think he has admitted that he has come to see some justification for what I have been asserting. Indeed, it seems to me that he now accepts that what I propose does not alter the position fundamentally from what it is at the moment. However, to a large extent that is water under the bridge.

Senator Dooge has now brought the argument to the point where there is very little between us. He sees, I think, quite clearly what the purpose of my amendment in the Dáil was. The section originally read: "A certificate given under the seal of a Minister ..." We changed that in the Dáil to read: "A certificate given by a Minister under his seal ..." That change was made to ensure that this act would have to be done personally by the Minister and surely we are entitled to assume that if a Minister solemnly sets his departmental seal on a document and signs it personally, he will have carried out an examination of the situation and will have satisfied himself as to the accuracy of the contents of the document which he is officially sealing as a Minister of State?

I cannot possibly accept an argument that a Minister of State will sign and seal a document as such personally without satisfying himself as to the facts of the situation he is certifying. That is pushing things too far. I think that the demand the Senator is making that the Minister should in addition make an affidavit to the effect that he has personally satisfied himself that so and so is the case is not necessary. It would indeed be undesirable in that it would be tantamount to admitting that Ministers were prepared recklessly and blindly to put their personal seal to official documents without satisfying themselves as to the rightness and validity of what they are doing.

All the things that Senator Dooge mentioned in his quotation from the judgment of Viscount Simon, on page 595 of the report, the paragraphs he quoted, E, F and G, were merely exhortations by Viscount Simon to Ministers as to how they should behave in the public interest. I could imagine that, if Viscount Simon were discussing the presentation in court of a certificate signed and sealed by a Minister under subsection (3) of Section 2, he would say, "I feel that Ministers should not certify documents as secret, or confidential unless they are of such and such a class." These remarks would be merely exhortations to Ministers as to how they should behave and, having given that advice and laid down these principles, he would still go on, as he did in that case, to accept the conclusiveness of the Ministerial seal.

I think I am right in saying that that is all that is between Senator Dooge and myself. At this stage, he is at least accepting, possibly not very willingly, that we have this certificate under seal by the Minister as to the confidential nature of the information and then he says, "Very well, but I want it accompanied by an affidavit to the effect that the Minister has personally gone into this matter and has satisfied himself that the information is secret and confidential before he seals." I cannot accept that for the reason that I could not possibly admit that a Minister of State would actually execute such a certificate without so satisfying himself.

Professor Hayes

I should like to join in what has been said, including what has been said by the Minister, in complimenting Senator Dooge for the way in which he has assisted the House in dealing with this amendment. The Minister reminds me, when he speaks, of what an old Irish speaker said to me one evening about a friend of ours who had a vast fund of stories: "Tá sé go maith ach dearfadh sé siúd aon rud"—he is very good but he would say anything. That applies to the Minister now. He has told us that Senator Dooge is agreeing with him. Anyone listening to the way in which Senator Dooge spoke, even if he did not understand what he said, would hesitate to accept the Minister's view that Senator Dooge has come nearer to the Minister than ever he was before because, if he has come nearer to the Minister than ever he was before, he must have been a terrific distance from him when he started.

Mr. Haughey

He has admitted that the present provisions are not any more onerous than the existing ones.

Professor Dooge

I never said anything else but that is not the point.

Professor Hayes

Exactly. That is not the point. It is not the point. There are several arguments in this matter. First and foremost, Senator Dooge has made it clear that what the Minister tried to tell us persistently on the Committee Stage and on the Second Stage about this whole matter is not correct, namely, that this was the settled and accepted principle of law, that the judges had no option. Viscount Simon in Britain and the President of the High Court here were both quite clear that the judge still has an option and that he need not accept a Ministerial certificate and it is because the Minister knows that that he has put the word "conclusive" into this subsection. It is because the Minister knows that it is not settled law and that the judges are not coerced to accept the Minister's view in this particular way that he has put in the word "conclusive." The amendment is for the purpose of endeavouring to modify that conclusive evidence to the greatest possible degree for the benefit of the accused person. That is what Senator Dooge is trying to do and he has proved conclusively, by citing the two judgments which the Minister brought to our notice without himself quoting them in support of his own case, that what the judges do is to accept reluctantly and unwillingly certain certificates.

With regard to the point of personal decision, the personal decision which the Minister takes under sub-section (3) of Section 2 is of very great importance to the accused person and because that decision is of great importance Senator Dooge desires, and I think we would all desire, that it should be as clear as possible that the Minister has come to a conclusion after personal examination of the documents. The reason for that is that everybody knows that for the past 50 years there has been a substantial change in the position of Ministers and in the powers of the State. The State has gradually acquired, in Britain, here and elsewhere, more and more powers. Acts of Parliament everywhere give more and more power to Ministers and that in effect means to civil servants. I say that without any intention whatever of being even in the slightest degree disparaging to civil servants. The Minister for Social Welfare, for example, has a great many decisions to make under the Social Welfare Acts and other Acts. His decision is final in many cases. The Minister himself could not possibly give these decisions and they are, therefore, given in the Minister's name by civil servants. That is inevitable and there is often a great deal to be said for it.

In this matter that we are dealing with now, the position is such that the Minister should himself give the decision. The Minister was very virtuous in his recent remarks. He told us that it was impossible to imagine a Minister giving a decision recklessly and blindly and bluntly to put his seal to something which is not correct but the only example that we have of a prosecution under the Official Secrets Act gives an example of reckless, blunt and blind prejudice on the part of a Government manned by the Minister's Party against a very distinguished officer of the Army of the State. Everybody knows it. It has been recognised. The jury threw out the case and the judge animadverted upon the conduct of the prosecution and the Minister has so little respect for the courts that he had to say these were ill-considered remarks because he does not agree with them. So that we have an example here. The only case ever taken here under these Acts about official secrets was taken, as I say, with blind prejudice. That is one specific example, the only example we have.

The Minister, when Senator Ross was speaking, talked about a company's seal on a lease. I am not a practising lawyer but surely a lease, as somebody said here, speaks for itself? Surely the company's seal on the lease would not help to put Patrick Murphy in jail. That is what happens here. A Minister's seal is evidence against an accused person and may involve serious punishment.

Mr. Haughey

You could envisage a situation where a seal on a document could put Patrick Murphy in jail.

Professor Hayes

That would be very rare.

Mr. Fitzpatrick

It is open to him to prove it is not the signature of a director of the company.

Mr. Haughey

You could do the same in this case. You can challenge that it is not the Minister's signature.

Professor Hayes

I wonder. Does a signature under the Minister's seal bring the Minister into court?

Mr. Haughey

Not necessarily.

Professor Hayes

Can the Minister be brought into the court?

Mr. Haughey

If somebody says it is not the Minister's signature, that it is forged, then he could be brought in.

Professor Hayes

Under the most recent proceedings which I remember, when a constitutional case was taken in connection with the Electoral Act by John O'Donovan, who was Leas-Chathaoirleach of this House for a period, the Minister for Local Government attended personally in court on that occasion and swore in court that certain documents preparatory to the preparation of a Bill, I think, were secret and confidential and that the disclosure would be prejudicial to the public interest. Therefore, if the Minister made an affidavit in this case he would have to go into court himself. In the other case, as the sub-section stands now, his sealed document is brought into court and certain proceedings have to be taken to have the Minister examined at all.

I think that in a case as important as this, and occuring as rarely as this, it should be possible for the Minister to make an affidavit as is suggested in the amendment, to go into court and to say he has examined himself the documents and that this is his affidavit, that they are secret and confidential and that their disclosure would be prejudicial to the public interest. I do not see any reason why he would not do that. It seems to me that the Minister's arguments on the subject are not really worthy of the gravity of the proceedings here.

The Minister said over and over again and implied that there was nothing new in this. Senator Dooge has proved conclusively—the word "conclusive" is the word that occurs to everybody in connection with this subsection—that that is not so. He has proved that by quoting a British judgment and two Irish judgments.

Mr. Haughey

Senator Hayes does not understand Senator Dooge's statement at all.

Professor Hayes

I began by saying that the Minister would say anything. I thought I knew a few words of English: I think I do. The Minister has not shaken me. I understand Senator Dooge's argument perfectly. There can be no doubt that what the Minister endeavoured to convey to us in this matter is contrary to the facts and to the judgments read out today by Senator Dooge.

The Minister is doing something new and he should be curbed in that effort. It is not too much to say to him: "If you produce a certificate which will be conclusive evidence to prove the guilt of an accused person in very rare cases"—and they are very rare from our experience—"then you should make an affidavit to that effect and, if necessary go into court to prove it". That is what I think about it. It may be my ignorance of English——

Seán Ó Donnabháin

Blind prejudice.

Mr. L'Estrange

No.

Professor Hayes

I am rather biased in favour of the Minister. I have every reason to be, you know. Why should I not? There is no blind prejudice in this case. I am examining this entirely from the point of view of the ordinary citizen and from the history of this matter. There is no doubt whatever that Senator Dooge has made a clear and cogent case for this amendment and that the amendment should be accepted.

Mr. Nash

I have listened with great interest to the speeches of Senator Dooge, Senator Ross, Senator Hayes and the Minister. I think it is reasonably clear what the point at issue is. Everybody wants to make quite sure that before a document is certified as secret or confidential by the Minister the Minister has applied his mind to it; that he is satisfied that it is a fact; that he is prepared to pledge his honour and his position as a Minister of State that it is a fact. I think that really is what is required by Senator Dooge's amendment.

But the question we have to consider really is whether the Bill as it now stands and was amended in the Dáil already does that. Different methods of proof, of course, are required from different people. If you lodge and register a deed in the Land Registry which has been witnessed by a layman, the Land Registry will not accept it unless the layman attaches to it an affidavit—not a mere statement, not a mere certificate but an affidavit—that it has been duly and properly executed. If, however, the same document has been witnessed in the presence of, say, a Peace Commissioner or a lawyer he does not have to make an affidavit. His work on the certificate, as attested by his signature to the document, is accepted as final.

We find somewhat the same position here. You may require from different people different kinds of proof. In a court, when people are actuated by motives of heat, ill temper, ill will, even their statement on oath is not accepted as accurate. They are cross-examined. They are further questioned on the matter.

Outside of court, in the ordinary type of event—say, the execution of a memorial to a deed—an affidavit is required. In other matters, depending again on the person and on the circumstances, something less than an affidavit is required—a mere statutory declaration. As between men of a particular standing, something still less is all that is necessary. If, in the course of his professional practice, Senator Dooge as an engineer or Senator Ross as a lawyer were to say such and such a matter, I would accept that as final and conclusive. I would accept it as being just as accurate and just as truthful as if they had sworn to it.

In this particular case, we have a Minister of State. He does not merely have his seal attached by a civil servant in his Department. He has a document which he himself seals, in the most formal possible way in which a Minister can attest a document. Under that seal, under that signature, surely that, in all good sense, is as strong, as formal, in so far as the people of this country are concerned, as any affidavit that the Minister might swear or anything else or any other form of attestation which he might attach?

I, therefore, submit that it would be putting matters on a basis which we ourselves do not accept in the ordinary normal practice of our professional lives if we were in a circumstances such as this not to accept the formal attested seal of a Minister of State attached by himself, with his own personal signature that he has satisfied himself as to the contents of a document and that it is private and confidential.

Mr. O'Reilly

I was impressed by the case made on this amendment by Senator Dooge. I began to wonder if the Minister would accept the amendment. I thought he might because certainly one must agree that Senator Dooge went to quite a lot of trouble and study and pains in putting a logical case in favour of his amendment. The only difference between the Minister's point of view and that of Senator Dooge is that Senator Dooge's amendment would ensure that the Minister, in issuing a certificate under his seal, had in fact thoroughly and painstakingly examined the documents being certified. Senator Dooge, probably in a desire to protect the citizen against the Executive, is anxious that the Minister should go further and issue an affidavit. I am beginning to wonder as to the merits of both sides of the argument. I do not want to be offensive therefore to Senator Hayes who spoke after the Minister. Having heard Senator Hayes, I came to the conclusion that the Minister's point of view was right and it was Senator Hayes who convinced me of that. The Minister was inclined to get down to the practical administration rather than theoretical arguments as put forward by Senator Dooge.

This measure is intended to deal with practical cases. I agree that prosecutions under this Bill when it is enacted will not happen every day or even every year; they might not happen for 10 years. Naturally, such a prosecution would create a lot of public interest and I could not imagine a situation arising where a Minister of State in any Government would not take more than normal pains when dealing with the matter. I cannot imagine that a Minister would, without careful consideration, apply his seal and signature certifying a document to a court, particularly when the life or liberty of a person might be involved.

I do not think that is likely to arise, in spite of the fact that Senator Hayes suggested that Ministers have so acted in the past. I do not think it did happen, but if it should happen, then such a Minister would be improperly filling an office and I would not think an affidavit from such a person would improve the position because it would not be worth the paper it was written on.

Professor Dooge

After listening to this debate, my one worry is that I will not understand what I said myself. However, I should like to make clear that I said from the very beginning what the purpose of this amendment was. It is to ensure that the safeguards which were there in the practice and law of privilege in regard to the removal of documents should apply in this case. I have no desire to put Ministers under oath. I have no desire to doubt the words of Ministers. In fact, my amendment does not stand or fall on the principle of an affidavit or a Minister swearing. My amendment is not concerned with whether a Minister takes an oath as he seals or as he signs. My concern is with what he does before he seals and what he does before he signs. I want to make that absolutely clear in the very beginning.

When drafting this amendment and discussing the drafting of it with Senator Ross, as it was a difficult amendment to draft, this seemed the simplest form, putting it in the form of an additional subsection. However, the whole purpose and aim of this amendment would be met if an amendment could be drafted which would ensure that the certificate itself would state that the Minister had done these two essential things. If the certificate includes the statement that the Minister has personally considered the information in the case and has personally formed the opinion that the information is secret or confidential and its revelation would be detrimental to the public interest, that would completely meet the case I have been making.

Mr. Haughey

Is that not inherent in his doing it personally?

Professor Dooge

I am afraid not If I could perhaps take the points which have been raised, I shall take them in reverse order and reply to those speakers who have not agreed with the points I have made. Senator O'Reilly seemed to indicate that what I was talking about was something theoretical. There is nothing theoretical about the judgment of Viscount Simon and nothing theoretical about the judgment in the Rose Tatto case. These were not the writings of academic lawyers: this was case law. This was judgment on law in the courts, authoritative determination of the law. If this Bill goes into law in its present form, there would be nothing theoretical about the fact that the judges will be precluded from doing what they can at present do in the far less serious business of removing privilege documents from a case. There would be nothing theoretical about the fact that a person arraigned under this Bill will have part of the case against him proved by a certificate, a certificate that has not even got the guarantee that can remove a file out of a case because it belongs to a certain class of document.

Senator Nash appears to think we must look at this from the point of view that different methods of proof are needed from different types of people and he stressed that we should not look for an affidavit from the Minister. As I say, I am not concerned with looking for an affidavit from the Minister. Senator Nash mentioned that if I, as an engineer, told him something or a Senator Ross, as a lawyer, told him something, he would accept it. In some cases, he might be a darn fool to accept it. If an engineer said something to me: "My opinion as an engineer is so and so". I do not ask him whether he is prepared to swear. I ask him: "How did you come to that conclusion; what steps did you take? What measurements did you make?" In other words, I want to know how he reached the conclusion. I do not care whether or not he swears. I can see for myself whether he has taken reasonable steps which would enable him to arrive at a proper conclusion. I do not care whether or not an engineer comes and swears that he has arrived at the right answer. If a student handed me an examination with an affidavit at the bottom of it that he had worked it out to the best of his ability, it would not get him any more marks in the examination. The point is whether the conclusion has been properly arrived at with all the safeguards. That is the essential thing.

I would urge the Minister not to be misled by this question of affidavits. It is absolutely inessential so far as this amendment is concerned.

Mr. Haughey

Surely the Senator is not serious in suggesting that he would question a colleague as to how he arrived at his opinion.

Professor Dooge

Of course I would if it were in a court of law.

Mr. Haughey

I assume it was not in a court of law.

Professor Dooge

Where is this going? Is it not to a court of law? Is it not a criminal matter?

Mr. Haughey

The Senator would question the methods, scientific training and approach of an engineering colleague?

Professor Dooge

Of course I would.

Mr. Haughey

In my profession we would not.

Professor Dooge

The Minister says there is very little between us. Of course there is very little between us because there have been votes in this House day after day which left very little between us. There was a great deal between us at the start, and there would be a great deal between us yet if we were arguing in a complete vacuum. The position is that there is very little left between us because we are trying to get the last protection for the individual who may be arranged under this Bill.

This is not an attempt to earn the gratitude of generations of spies as yet unborn. It is not an attempt to interfere with the security of the State. It is an attempt to protect individuals in these cases, and even more it is an attempt to stop in this instance what we believe would be a bad headline, and what we think is a bad line of procedure, and one which could be followed up. This is a precedent in law and a precedent in procedure. Those are the points to which we object. It is a precedent which the courts must follow, but it is a bad precedent and one which if followed, will strike at the question of individual liberty.

The Minister seems to think that if we seek something of this type we are in some way impugning Ministers, and in some way saying that the Ministers under seal would never do anything but go about this thing the wrong way. I do not think we are asking anything unreasonable in this. The question is, if Ministers are to act in these cases in precisely the same way as judges insist that they act in accepting certificates in cases of privilege they must do certain things. They must examine the thing personally. They must form a conclusion personally that disclosure is against the public interest.

The question is, how can we ensure that every Minister on every occasion will do that. The Minister says they will, but surely we know that the way of legislation has shown that the road to the Supreme Court of this or any other country was paved with Ministerial intentions. What the Minister says here about what he will do in the future, or what he says about the possibility of how Ministers will act, or whatever he says about the norms of conduct of Ministers in the future does not——

Professor Quinlan

On a point of order, is it in order for the Minister and the Leader of the House to engage in conversation while the mover of the motion is replying?

An Leas-Chathaoirleach

It is not in order. I had noticed it, but I had hoped that it was possibly some sort of consultation in relation to the matter in hand.

Mr. Haughey

May I explain? I was discussing with the Leader of the House exactly what progress he hoped could be made and what amendments could be taken between now and the break for tea. No discourtesy was intended to Senator Dooge. I have already made clear to the House my appreciation of the concise and logical manner in which he has approached these matters as distinct from some other Senators.

An Leas-Chathaoirleach

Senator Dooge.

Professor Dooge

I return to the point that what the Minister's intentions are, is not what we are concerned with here today. We are making law. This is the last occasion on which we can amend this Bill. I agree with the Minister in regard to this amendment that there is very little between us, but there is this between us: the Minister is satisfied and I am extremely anxious. In this respect I am asking the Minister to do very little. He says there is very little between us. In other words, I am asking him to depart only a small distance from the position which he has taken up. I am asking him to do that to allay the anxiety I feel on this matter. I do not think it is any disservice or any disgrace to any Minister to ask that we should write into this legislation that Ministers should do these things, that in this particular case Ministers should act only after having done certain things.

I agree that Ministers will normally examine questions throughly, but this is not the ordinary giving of a seal. It is the giving of a seal which will be part of the proof in criminal actions. Surely we do not set a headline in regard to the ordinary use of a seal when we put this in this Bill. All we are asking is that when the Minister uses his seal to give part of the proof in criminal actions it should not be done lightly. I do not think any reasonable Minister or Government could object to that.

As I have said there is little between us but I think I may say that since there is little between us the amount the Minister would have to yield is small. I can say personally— and I do not know for how many others I can speak—if the Minister is unwilling to move that very small distance the disappointment will be great.

Amendment put.

The Seanad divided : Tá, 20; Nil, 26.

Tá

• Carton, Victor
• Davidson, Mary F.
• Desmond, Cornelius.
• Dooge, James C.I.
• Fitzgerald, John.
• Fitzpatrick, Thomas J.
• Hayes, Michael.
• L'Estrange, Gerald.
• McAuliffe, Timothy.
• McDonald, Charles.
• McGuire, Edward A.
• Mannion, John.
• O'Brien, George.
• Ó Conalláin, Dónall.
• Prendergast, Micheál A.
• Quigley, Joseph.
• Quinlan, Patrick M.
• Ross, J.N.
• Sheridan, John D.
• Stanford, William B.

Níl

• Boland, Gerald.
• Brady, Seán.
• Brennan, John J.
• Browne, Seán.
• Cole, John C.
• Farrell, Joseph.
• Fitzsimons, Patrick.
• Flanagan, Thomas P.
• Healy, Augustine A.
• Hogan, Daniel.
• Killilea, Mark.
• Lahiffe, Robert.
• McGlinchey, Bernard.
• Mooney, Joseph M.
• Nash, John Joseph.
• Nolan, Thomas.
• Ó Donnabháin, Seán.
• ÓMaoláin, Tomás.
• O'Reilly, Patrick.
• Ó Siochfhradha, Pádraig.
• Ruane, Thomas.
• Ryan, Eoin.
• Ryan, Patrick W.
• Ryan, William.
• Sheldon, William A.W.
• Yeats, Michael.

Tellers: Tá, Senators Fitzpatrick and L'Estrange; Níl, Senators Farrell and Ó Donnabháin.

Amendment declared negatived.

Mr. Fitzpatrick

I move amendment No.10:

In page 4, section 2, between lines 12 and 13 to insert:

"() The powers of the Minister under subsection (3) shall not be exercised in respect of any official information which was not expressed to be secret or confidential at the time of issue."

I think I have already made it clear that we believe that subsection (3) is an undesirable subsection and that it should be deleted from the Bill. However, the collective wisdom or the collective number of Senators on the other side of the House has seen to it that subsection (3) will remain part of the Bill. However, I make no apologies to the House for continuing to urge on the Minister and on the House that this subsection should be improved if the Minister will not agree to its deletion. I say that because I believe that this subsection is a completely new and very undesirable departure.

I also continue to urge on the House to improve this subsection for another reason. The Minister has embarked on a scheme of law reform. He has introduced here a number of Bills to codify one or other aspects of the law and he has in mind the amendment or codification of the law of evidence. I say, if this subsection is any indication of the approach of the Minister and his advisers to the law of evidence in general, that it is up to this House to fight it and to fight it tooth and nail and to fight it as hard as it can.

I say that this subsection is a completely new departure, without precedent either in this country or in any other country. It is a subsection which proposes to make the certificate of a Minister absolutely conclusive evidence against an accused person. The Minister, on the Second Stage of this Bill, introduced here two cases, the Cammell Laird case and the Rose Tattoo case. He says that he did not introduce them as authorities for putting this subsection into the Bill but, whatever he introduced them for, we are entitled to use them in this debate.

The case of Duncan and another V. Cammell Laird & Co. Ltd. is authority for saying that a Minister of State can refuse to produce a document in a suit between private citizens on the grounds of public policy. That is admitted; there is no dispute about that. But the headnote to the report of that case contains the following paragraphs which is extremely important. It 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 disclosures and production would be made.

The Minister in this Bill proposes to throw overboard that very important paragraph in the judgment in a case on which he relies in some way or another to support his case here. Not alone does he propose to throw that paragraph overboard but he goes further and says: "Not alone will I not produce the document but a court of law will be bound to accept my certificate as evidence of what the unproduced document contains and that evidence will be used as part of the proof against the accused person." That is very undesirable and a completely new departure and I challenge the Minister to say that it is not.

The other case the Minister referred to here was an Irish case The Attorney General V. Simpson. The Minister, on the Second Stage, referred to the judgment of the President of the High Court as containing a very full statement of the law applicable to this type of case.

Mr. Haughey

Senator Fitzpatrick promised that he was going to make his main case on an earlier amendment.

Mr. Fitzpatrick

A lot of things happened since then and we are not rushed today as we were then. I shall refer to only one more case. It is a case referred to in the judgment of the President of the High Court in the Attorney General V. Simpson. In that case, Mr. Justice Davitt the President of the High Court, referred to the case of Mr. Elveney V. Connellan. In that case the plaintiff was an employee of a prison. It was alleged that he in some way or another had misconducted himself, had been guilty of a dereliction of duty, and the Inspector General of Prisons was instructed to hold an inquiry. He held an inquiry and he made a report to the Lord Lieutenant. On the strength of that report, the plaintiff, McElveney, was dismissed and he brought an action against the Inspector General of Prisons for libel. The case came on for hearing before Chief Baron Pigot and in the reference to that case by the President of the High Court, it is stated:

After some parol evidence had been given to show that the dismissal was in consequence of the report, the trial Judge, Chief Baron Pigot, ruled that production of the report could not be enforced and that there was, accordingly, no evidence for the jury to consider on the issue of publication. The plaintiff was, therefore, non-suited. He obtained a conditional order for a new trial and applied to make it absolute.

The judgment of Chief Baron Pigot was affirmed by the Court of Appeal. The point I want to make on that is that in that case privilege was claimed. Therefore, the report of the Inspector General of Prisons was excluded and that ended the matter, but I repeat what I said here the last day: If the Minister had his way, in that case the report would have been excluded but it would have been substituted by a certificate from the Lord Lieutenant that the report was defamatory and that certificate would be conclusive and neither the defendant nor the jury could inquire into it. There is no difference. That is what this subsection means and that is what I object to.

The House has decided that sub-section (3) must remain part of the Bill. I invite the House now to accept this amendment and to say that while the Minister may certify information as being secret and confidential, he shall not be entitled to do so retrospectively. As the Bill stands at the moment, a person may be charged with committing an offence of disclosing secret and confidential information on 1st January, 1962. On 1st January, 1962, that information may have been a doubtful proposition. It may not have fallen into the first two categories described by the Minister—(1) information which is obviously secret and confidential; (2) information which is expressed to be secret or confidential. It may have been the third sort—information about which there could be a dispute. The person may have been charged with disclosing that information on 1st January, 1962, and were it not for this provision—to which I object—there could be a dispute before the court as to whether it was or was not secret or confidential.

But, under and by virtue of this sub-section, the Minister will come into court with his certificate and say, although the man is not charged until the year 1963, that on 1st January, 1962, that information was secret and confidential and that is the end of it. I think that is very bad. I do not know the reason for this subsection. I fail to see it. The Minister has said that it is in order to protect the State: that it is being invoked only under Section 9 cases. But the Minister has authority under Section 12 of this Bill to have all cases under Section 9 heard in camera for the asking of it.

It is well settled law and referred to in the cases put before us by the Minister that the Minister should not claim privilege for the sake of convenience: that this privilege should be claimed only when there is some substantial cause for it. The only reason I can think of for putting this sub-section into the Bill is to make it easier for the State to get a conviction and to make it more difficult, if not impossible, for an accused person to defend himself. Therefore, I ask the House in all sincerity and I ask the Minister to accept this amendment with a view to improving this very dangerous subsection.

Professor Hayes

I second the amendment.

Mr. Haughey

I think that Senator Fitzpatrick realises and is conscious of the fact that this is, in effect, a last ditch stand on his part. I do not think he really seriously expects me at this stage to accept this amendment because the effect of it would be, in fact, to negative subsection (3) for which I have been fighting so hard here and in the Dáil as well. The position is, of course, that, if we were to accept the amendment, it would mean that the certificate could not be applied to the type of information which is not capable of being expressed to be secret or confidential on its face. I have already indicated here from time to time that there is necessarily included under the general scope of this Bill information which might not even be in writing or in any concrete form. It is particularly in relation to that information that the certificate which I have in mind would be most useful. Indeed, in some cases, it would be vitally necessary. Therefore, for all the reasons I have already given in support of subsection (3) itself, I cannot accept this amendment which, in effect, would be to negative subsection (3).

Professor Hayes

Did the Minister not say already that documents cannot be made secret and confidential retrospectively? Is that not correct? He said that himself.

Mr. Haughey

It cannot be stamped.

Professor Hayes

He is retaining the power for cases where the information cannot be stamped?

Mr. Haughey

Not quite. I must be frank about that. I have argued that a Minister cannot subsequently come along and stamp "secret" or "confidential" on a document but you can issue the certificate restrospectively.

Professor Hayes

Oh, yes.

Amendment, by leave, withdrawn.

Professor Dooge

I move amendment No. 11:

In page 4, line 17, before "to" where it secondly occurs to insert: "or has reasonable grounds for believing he is duly authorised".

The principles in amendments Nos. 11 and 12 are analogous though not identical. It might convenience the House if they were taken together. Both of these amendments were moved on Committee Stage, their purposes being to safeguard a civil servant who acts in good faith and finds himself faced with a criminal charge. I withdrew them on the Committee Stage in order to give the Minister an opportunity to consider the matter. Therefore I intend on this occasion only to summarise what I said then and to put the main points in favour of these amendments.

The first thing I would impress on the Minister and on the House is that lack of discretion or lack of prudence are qualities which do not in themselves make a criminal and that a civil servant who is indiscreet or imprudent should not for that reason and that sole reason find himself faced with a criminal charge. There are penalties, appropriate penalties, in this respect—failure to attain promotion; actual demotion or, in serious cases, removal, dismissal from the Service itself. However, I think that when a person does act in good faith but through some circumstances—in which he is not criminally, indeed, not purposely, at fault—the information reaches an unauthorised person, he should not be subject to the full penalties of this Bill.

In speaking on these amendments on Committee Stage, the Minister said that a civil servant is a special type of person and, accordingly, we expect him to have special qualities. Of course, there is no doubt on that point. We do expect him to have special types of qualities. However, the fact that we expect a civil servant to have a particular type of quality in order to be a good civil servant is no reason to make him a special type of criminal, is no reason to make this civil servant liable to a criminal charge because of the failure of some other person. In other words, the purpose of these amendments, as was argued on Committee Stage, is to avoid the position where the sins of the superior would be visited on the official.

The amendments seek that it could be a good defence for a person to argue that he had good reason to believe that he was duly authorised. He has to argue it and argue it to such an extent that he convinces the court that this is so. Similarly, in amendment No. 12, the purpose is that an official who has no reason to believe that particular information is secret or confidential does not find himself faced with a criminal charge in respect of this information. In both of these instances it would be the failure of a superior which would involve somebody in this position. If the authorisation was defective, it would be the failure of his proper superior to have the link of authorisation complete at every stage. If a person is not made aware that something is secret or confidential, there would be failure to warn an individual in that regard, failure to give him instructions which are specific enough. It might, indeed, be due to failure on somebody's part to stamp information which should have been stamped as secret or confidential.

I put it to the Minister that there are two separate things here. If a person deliberately reveals information to an outsider, then let him face the criminal charge but if the information reaches an unauthorised person through his agency even though he has acted all along in perfectly good faith and acted in the same way as he has acted previously and his colleagues have acted previously, while there might be a case to have disciplinary action taken against him for his lack of prudence, his lack of discretion, his lack of competence as a civil servant, I think taking criminal action against him is something of a different nature altogether.

Mr. Haughey

First of all, I should like to answer this question of imprudence to which Senator Dooge has referred. You can push that too far. The recent case in England was concerned with a woman official who gave out information in the mistaken hope she would convert a Yugoslav to the Western cause. That, I suppose, would be lack of prudence but she got a sentence of two years and that sentence was confirmed on appeal. However, that is not really the trouble I have with this amendment. Regarding amendment No. 11 as proposed by the Senator, if we were to incorporate the words "or has reasonable grounds for believing he is duly authorised" immediately after the word "authorised" in the subsection, we should logically go on to say: "or does so in the course of or in accordance with his duty or has reasonable grounds for believing that he is doing so in the course of or in accordance with his duty as the holder of public office or when it is his duty in the interest of the State to communicate it or when he has reasonable grounds for believing it is in the interest of the State, et cetera.” Therefore, we would have to incorporate the words proposed after every act envisaged in the subsection.

That is really a technical objection to the incorporation of the words suggested in the amendment but, basically, my objection to the amendment is, as I indicated on the Committee Stage when talking about this matter, that officials are expected to know the extent of their authority and the extent of their duties. That is the only reasonable basis on which we can proceed and the only reasonable basis on which we can operate the machinery of government.

I readily admit there will probably be an odd case from time to time where an official might genuinely believe he was authorised and it will be subsequently established that he was not so authorised. In that case if he were able to show he had reasonable grounds for believing, then as in every other criminal prosecution, that factor would be taken into account by the court as a mitigating circumstance probably entitling the court to apply the Probation of Offenders Act or impose a minor penalty. In any event, it would have full advertence to the fact that the official had reasonable ground for believing that he was authorised. I think that is the way the matter should be treated, that it should be left at the discretion of the court rather than incorporated in the section.

Professor Dooge

I regret the Minister cannot resist bringing some red herrings across the discussion and it is most unfortunate he should introduce things like the recent British case. This, of course, is miles away from anything which is in this amendment. There could be no possible plea in this case that the person believes she was duly authorised to hand over foreign office documents to an official of the Yugoslav Embassy. Nor, indeed, could anybody possibly plead or have it accepted by a court that he had not reasonable grounds for believing that a communication from British Ambassadors abroad to the foreign office were not documents the revelation of which would not be in the interests of the State. It is unfortunate that the Minister should wander away from the kernel of the amendment.

Mr. Haughey

The Senator said imprudence should not be a criminal offence. I merely quoted that case where imprudence and nothing more than imprudence was regarded as criminal.

Professor Dooge

Let me go on to the kernel of what the objection is in this case. The Minister says there might be cases and that these cases should properly be dealt with by the court and should be properly dealt with as mitigating circumstances in regard to the offence. This, of course, is one possible approach to it but if the Bill is to be allowed to stand as it is, it is highly desirable that, when it is enacted, the whole question of the duties of civil servants in regard to information which is secret or confidential and the whole question of the authorisation of civil servants in regard to such matters should be thoroughly dealt with by the Department of Finance.

I would ask the Minister to bring this whole matter to the attention of the Minister for Finance so that it will be clearly set forth, not just a couple of paragraphs on the back of a form that people sign on the first day they go into the Civil Service.

Mr. Haughey

When they do not know very much anyway.

Professor Dooge

No; when a person comes in to the establishment officer on his first day of work he is inclined to be flustered and confused and in every sense does not know what he is letting himself in for. I think that this is insufficient warning altogether and I would ask the Minister to bring this whole matter to the attention of the Minister for Finance and that, indeed, not just a memorandum, not just something on the back of a secrecy form that is pushed in front of a new entrant for signing, but that there should be something in the nature of a fairly complete set of instructions which would indicate to the new entrant what was involved. In other words, I suggest that the whole question of whether authorisation at present is being properly carried out and whether the question of the limits of duty are properly recognised in the Civil Service might itself be the subject of study. If the Minister would be kind enough to undertake that, I shall allow the amendments to lapse.

Mr. Haughey

I shall be happy to bring what the Senator has said to the attention of the Minister for Finance. I may say that I bring many things to the attention of the Minister for Finance from time to time, but——

Professor Dooge

This should not cost too much.

Professor Hayes

That is a universal experience.

Mr. Fitzpatrick

If rumour is correct, the Minister might not have to; he might be in an influential position.

Amendment, by leave, withdrawn.

Amendment No. 12 not moved.

Professor Dooge

I move amendment No. 13:

In page 4, between lines 26 and 27 to insert:

"() Nothing in this section shall make it an offence for any holder of a public office to communicate information concerning his terms or conditions of employment to an association duly recognised for negotiating purposes, unless the communication of such information is prejudicial to the safety or preservation of the State."

This amendment is concerned with the operation of staff associations within the Civil Service and whether or not the provisions of this Official Secrets Bill, if carried out, would tend in some circumstances to interfere with the natural operations of the staff associations who represent civil servants of various grades.

I put down an amendment in connection with this matter on Committee Stage and the Minister at that time commented that the amendment was somewhat wide and, accordingly, I have narrowed very much the scope of this amendment in an endeavour to get an amendment which would be acceptable to the Minister in this regard.

The present amendment is narrower than the one moved on Committee Stage in three particular respects. First, it substitutes the section for the Act. In other words, it is concerned only with offences under Section 4. This means that there can be no possible doubt about acts involving the security of the State being involved. Secondly, it is confined specifically to the disclosure of information with regard to terms or conditions of employment by a person in regard to his own terms or conditions of employment. In other words, it does not seek to protect by law anybody giving information to a staff association about general conditions or conditions of colleagues, superiors or subordinates, in the Civil Service. It merely attempts to protect the member of the Civil Service in the free exchange of information with the staff association concerning his own position. The third respect in which the scope of the amendment has been narrowed is that this communication must now be to an association duly recognised for negotiating purposes.

There is no need to talk at any great length about the need for good staff relationships but, perhaps, it is just as well to emphasise for a moment that good staff relationships are every bit as important in the Public Service as in private industry. The Government have been very active recently in supporting management-labour co-operation in the sphere of private industry and while one must agree with the Government that this is something which they should be doing they should also ensure in regard to staff relationships that their own house is in order and, indeed, that conditions are such that staff relationships within the Civil Service itself will continue to be, at the very least, as good as they are at the moment.

The associations which represent the staff in the Civil Service have to be free in certain respects. They have to be free in order to discuss with individual members matters in regard to their employment. They have to be free to discuss matters which are about to go through negotiation under conciliation and arbitration machinery. They have a right to come back at any stage during conciliation and arbitration to discuss matters with their members and to seek further information.

Of course, there is no doubt that in certain respects what goes on at conciliation and arbitration must be confidential but there are certain times at which these associations must be free to discuss them. If there is a breakdown, they must be free to report back and it is not unfair to ask that the associations representing civil servants should, like trade unions, be free by right and not only by Ministerial favour which could be withdrawn at any time.

The position has been up to the present that relationships have been, if not ideal, anyway, relatively good and, indeed, the Minister on the Committee Stage, when dealing with this amendment, said:

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.

Now, of course, there have been no definite statements by the staff associations in regard to this and I take it the Minister is relying on the absence of adverse comment in this regard but we should recognise that what the staff associations are satisfied with, assuming they are satisfied, in this respect is not the present law but the present practice. I do not think we can say that the staff associations have studied the Acts of 1911 and 1920 and have been perfectly satisfied that their operations are not endangered by those Acts. What the staff associations are satisfied with, assuming they are satisfied, is that the present practice within the Civil Service allows them to do certain things but if present law or future law with which we are dealing here today were to be more rigorously applied than it is at present then, indeed, the staff associations might be far from satisfied.

Mr. Haughey

That is a different matter.

Professor Dooge

It is, indeed, and I am not objecting to what the Minister said but I want to go on from here and say that what this amendment seeks is to recognise the present practice. I would ask the Minister to realise that even if the associations are satisfied with the present situation, the rejection of this amendment would be a serious alteration of the present position. If the Minister declared his intention of not accepting this amendment, if the Minister stated quite clearly that it was quite impossible for himself or the Government to allow the staff associations to be free in this particular respect and he then polled the staff associations on it, I do not think the degree of satisfaction which would be registered would be very high. I think Civil Service staff associations would wish to see that their operations should be safeguarded in the particular way sought by this amendment.

Why do I think that it should be necessary that we should put something in the Bill to safeguard the present position? It might, perhaps, be said that we could leave things as they are and they will continue as they are. The reason why I think we should have a provision which allows the staff associations some freedom of action is that we must consider under what circumstances a Minister would attempt to apply the law more rigorously. We would all agree that it would be at the time of a dispute with the staff associations, a time when the Minister found himself frustrated in dealing with staff associations, that he would be tempted to say that the present practice was too lenient and move in the direction of a more rigorous application of the law. Of course, this is the very time that a Minister should not be allowed to do any such thing. When a dispute exists between a staff association and a Minister that is the very time when the Minister should not be allowed to aggravate the situation in this particular way.

While it might be said that the cautious, proper and conservative approach is to leave the law as it is and trust that Ministers will not be frustrated in this way and will not in any way attempt to apply the official secrets law more rigorously than he has done, I do not think this is the action of a humane employer. At this stage the Government which are the employers of the Civil Service in this country, their employers on our behalf, should show a more enlightened staff policy.

Mr. Haughey

First of all, I should like to say that I, too, would like to see the present good relations between staff side and Departments continue to exist. I do not see any reason why this Bill should interfere with that in any way. I want to quote for the Seanad the terms of the existing circular issued to civil servants:—

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.

If they have been able to carry on successfully within the terms of that circular since it was sent out in 1932, I do not think the present Bill, which is much less restrictive, need cause them any trouble. As a general rule, to the extent of almost 99 per cent., the terms and conditions of employment of civil servants are public knowledge. Indeed, they are known to an extent which is not applicable to any other form of employment. They are all published in great detail in the Appropriation Accounts, Estimates and so on and, therefore, there would normally be no question of a civil servant's talking to his staff association involving him in the disclosure of information which would get him into trouble under the terms of the Bill. What is involved in the amendment, and it is a thing which I cannot accept, is the—whether Senator Dooge would like it or not—I do not think he would like it—giving of authority to civil servants to disclose secret or confidential information. That is clearly inherent in the amendment. Provided it is for the purposes set out in the amendment, a civil servant would be entitled to disclose secret or confidential information and that we could not, I think, contemplate.

There is a more important point as a subsidiary to the amendment. It would entitle a civil servant to be the judge of when he should be entitled to disclose secret or confidential information in connection with his employment. That again, I think, would be disastrous. You could not authorise a civil servant to disclose information or leave to a civil servant to decide in his own particular case whether or not information which he was proposing to disclose for the purpose of negotiation with a staff association was or was not secret or confidential.

Professor Hayes

It is very difficult to understand the Minister's difficulty. I read this amendment and it seemed to me so eminently reasonable that I did not feel it needed any argument at all. I take it it does not include the Garda Síochána or the Army and if I am an individual in the Civil Service, an ordinary civil servant, how could it happen that disclosing my terms or conditions of employment would involve me in something secret and confidential when I am discussing them with an association duly authorised for negotiation purposes? Mind you, the amendment excludes information prejudicial to the preservation and safety of the State. I have seen a good deal of the civil service and I cannot see at what point an individual civil servant disclosing his own conditions of employment to his negotiating body would be in a position to disclose something secret and confidential.

Mr. Haughey

Neither can I. That is my point. I cannot visualise it and that is why I say that the amendment is not necessary.

Mr. Dooge

It is necessary because we should not be limited by the Minister's imagination.

Professor Hayes

I listened to the Minister and my impression was that he did visualise it and this was why he had rejected it. My knowledge of English seems to be defective. I did not understand the Minister or anybody else. I thought the Minister thought a civil servant might be obliged to disclose something secret and confidential in order to make his own personal case to a duly authorised negotiating authority and because he was so convinced he thought he could not accept the amendment. Now, however, by way of interjection to me he points out that he agrees with me on the amendment, that the amendment contemplates something which could not occur. You see the trouble about human beings is that not only have you to do justice but you must appear to do justice and allay people's fears even when you think those fears have no grounds. If civil servants are in the position of being nervous that their present right to improve their terms of employment through the machinery of the duly authorised negotiating body is prejudiced by the Bill, this safeguard should be inserted and I can see no reason why it should not. There is this idea that you cannot put anything in the Bill. According to the Minister this cannot happen—no Minister would do so so you cannot put it in the Bill—but if this is something which the organisations fear——

Mr. Haughey

They do not. They have not said a word about it.

Professor Hayes

That is another question. The amendment is reasonable.

Mr. Haughey

I cannot possibly visualise a situation where it would be necessary for civil servants, in order to conduct their affairs with a staff association, to disclose secret or confidential information because the conditions of all ranks, not only their present pay but their future pay for the next 20 years, are clearly known.

Professor Hayes

It is in the Estimates.

Mr. Haughey

I could not visualise that and, therefore, the amendment is unnecessary. Civil servants should be able to conduct their discussions with staff associations without in any way getting into trouble regarding the confidential provisions in this Bill, but the amendment envisages a thing which I cannot accept in principle. I would object very strongly to a civil servant being entitled to disclose secret or confidential information even for the purpose of conducting his own affairs with his staff association, if such a thing ever did arise. That is why I object to the amendment. It involves that principle. It is inherent in the amendment that Senator Dooge would authorise civil servants to disclose secret or confidential information if it were necessary to do so for the purpose of carrying on their discussions with their staff associations. That is the principle to which I am objecting.

Professor Hayes

The Minister is running two different horses in two different directions.

An Leas-Chathaoirleach

Both the Minister and Senator Hayes are violating Standing Orders by speaking twice.

Professor Hayes

It was a mere interjection.

Mr. Haughey

These are asides.

Mr. Brosnahan

I have discussed this amendment with Senator Dooge. I also feel it is quite a reasonable amendment. I see in the Minister's statement the same kind of dichotomic position that Senator Hayes has detected. When the Minister was replying he said he did not want the civil servant placed in the disastrous position of having to reveal secret and confidential information. He said that would be a disastrous situation. Later, he says the amendment is not even necessary. Therefore, I do not think the Minister's statement is perfectly clear or that he has convinced me that he has a very clear point of view on it.

Mr. Haughey

I have convinced myself.

Mr. L'Estrange

The Minister is not the only man in his Party who looked into his own heart.

Professor Hayes

It is a Fianna Fáil habit.

Mr. Haughey

I include the intellect as well.

Mr. Brosnahan

I have the highest respect for the Minister's intellect but on this occasion I cannot understand him because he does seem to be putting forward two opposing points of view in the one reply. The right of the individual should not be so limited that he is not in a position to discuss the terms of his employment with the members of his staff association. I should like to support the amendment.

Mr. Haughey

May I say——

An Leas-Chathaoirleach

I am afraid the Minister may not——

Professor Hayes

We have no objection to his saying something.

An Leas-Chathaoirleach

——unless the Seanad agree. I am concerned to protect the Chair.

Mr. Haughey

If I say something else, I may tempt somebody to say something in reply.

Professor Hayes

We shall observe the self-denying ordinance and we shall say no more.

An Leas-Chathaoirleach

Then if the Minister wishes——

Mr. Haughey

On reflection, I do not think so.

Professor Dooge

I think that what Senator Hayes said is true—that it is a perfectly reasonable amendment. It is an attempt to ensure that the present practice will continue. It is an attempt to ensure that should unusual circumstances arise in the future it will not be the serving civil servant who will suffer. That is the purpose of this amendment.

The Minister says that he cannot envisage any circumstance in which a civil servant could reveal information regarding his terms or conditions of appointment which could be secret or confidential. My concern was that under the conditions of a dispute between a Minister and his staff we would tend to get frustration on both sides and the position could clearly arise that the Minister would take exception to some purely staff matter regarding a person's own individual employment being revealed to a staff association.

This need not be something which would, in fact, be secret or confidential. But the Minister has, by his persuasion in this House, ensured that it does not need to be secret or confidential in fact because, whether it is secret or confidential in law, is determined not on the facts of the case, not reasonableness, not justice but a seal given by the very Minister who is a party to the dispute in question. This is why I think it is an utterly reasonable amendment. If this amendment is rejected, civil servants will know that when they come into dispute with the Minister, the revelation of any fact in regard to their terms and conditions of employment would leave them open to a certificate, under subsection (3), that what they have revealed is secret or confidential—and no person can go behind that certificate and no pleading in court by that civil servant that all he had revealed to the staff association was something which any person can reveal to his trade union, no pleading of this kind is possibly allowed for.

The Minister says there is no anxiety. I assure the Minister that the staff associations of the Civil Service are anxious and they are anxious that protection of this sort should be given to them. I think that the Minister should take the view that he will do damage and severe damage to staff relationships in the Civil Service, and will injure the Civil Service morale if he persists in rejecting this reasonable amendment.

An Leas-Chathaoirleach

Amendment withdrawn?

Professor Dooge

By no means.

Question put: "That the proposed words be there inserted."

The Seanad divided : Tá, 19; Níl, 23.

Tá

• Brosnahan, Seán.
• Carton, Victor.
• Davidson, Mary F.
• Desmond, Cornelius.
• Dooge, James C. I.
• Fitzgerald, John.
• Fitzpatrick, Thomas J.
• Hayes, Michael.
• L'Estrange, Gerald.
• McAuliffe, Timothy.
• McDonald, Charles.
• McGuire, Edward A.
• Mannion, John.
• O'Brien, George.
• Ó Conalláin, Dónall.
• Prendergast, Micheál A.
• Quigley, Joseph.
• Quinlan, Patrick M.
• Ross, J. N.

Níl

• Boland, Gerald.
• Brady, Seán.
• Brennan, John J.
• Browne, Seán.
• Farrell, Joseph.
• Fitzsimons, Patrick.
• Flanagan, Thomas P.
• Healy, Augustine A.
• Hogan, Daniel.
• Lahiffe, Robert.
• McGlinchey, Bernard.
• Mooney, Joseph M.
• Nash, John Joseph.
• Nolan, Thomas.
• Ó Donnabháin, Seán.
• Ó Maoláin, Tomás.
• O'Reilly, Patrick.
• Ó Siochfhradha, Pádraig.
• Ruane, Thomas.
• Ryan, Patrick W.
• Ryan, William.
• Sheldon, William A. W.
• Yeats, Michael.

Tellers: Tá: Senators Fitzpatrick and L'Estrange; Níl: Senators Farrell and Ó Donnabháin.

Question declared lost.

Business suspended at 6 p.m. and resumed at 7.30 p.m.

Amendments Nos. 14 to 16, inclusive, not moved.

Professor Hayes

I move amendment No. 17:

In page 5, section 6, between lines 14 and 15, to insert: "() The powers of the Taoiseach under subsection (3) shall not be exercised in relation to any document circulated before March 9, 1932".

I move this amendment in order to clarify certain things which occured on Committee Stage. The subsection gives power to the Taoiseach to demand from certain people documents that may be in their possession. The qualification in the Bill is that the document must be an original document. Under subsection (3) of Section 6 the Taoiseach may give directions as to the return or disposal of any original documents.

On Committee Stage I tried to restrict the exercise of this power and to have the power begin from the date of the passing of the Bill. It has become almost a habit of the Minister to say that on the face of it something appeared reasonable but on examination it was found not reasonable. The Minister finds nothing reasonable when he examines it. One is tempted to say that he should not examine anything. I do not know what the word "original" here means. I do not quite know why this provision is inserted in the Bill because, in the past 40 years, so far as I know, no Taoiseach —and there have been several—has asked for the return of documents from people who have been Ministers or Parliamentary Secretaries.

I do not know what "original document" means either. The Minister defined it in a way which I said at the time would get no marks in an examination. He said it was a document of origin and the example he gave was that someone might make away with the lease of Government Buildings. I would say that if any person, whether he was an ex-Minister or not, had in his possession the original lease of premises which belonged to someone else there is sufficient power in law at the present moment to make him give it up. I certainly do not think this provision could make him give it up.

In the past 40 years when we had violent internal disturbances and a war situation for six years this power was never exercised, never demanded, and it never appeared to be desired, so I do not know why it is here. However, it seems to me that it should be exercised only from the time it was proclaimed as something that was going to be exercised. I have inserted the date on which the Fianna Fáil Party came into office—9th March, 1932— and I think that the power should be exercised as from that date. Perhaps on consideration the Minister might find that reasonable. He seemed to indicate on Committee Stage that he was in favour of having this power exercised only as from a particular date. If he does not accept my date, and if there is any other date he could suggest, I should be happy to oblige him and be reasonable.

Mr. Fitzpatrick

I formally second the amendment.

Mr. Haughey

I do not think Senator Hayes is really as determined about this amendment as he has been about other amendments——

Professor Hayes

Really as what?

Mr. Haughey

As determined about this amendment as he was about other attacks that he made on some of the principles enshrined in the Bill. This subsection is put in the Bill for a very specific purpose. We want to ensure that if a former Minister or Parliamentary Secretary holds on to an original document which came into his possession when he was in office he can be compelled to return it. We stipulate that only the Taoiseach for the time being should be authorised to demand such a return.

The present position is, I think, fairly doubtful. Section 2 of the 1911 Act stipulates that it shall be an offence for a person to retain a "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." It seems to me that on the face of it this applies to Ministers and Parliamentary Secretaries. The unsatisfactory nature of the provision arises from the use of the phrase "lawful authority." It seems to be desirable that we should stipulate that the only person who should be in a position to demand the return of documents from former Ministers and Parliamentary Secretaries should be the Taoiseach. That is really the raison d'etre of the subsection. I do admit there is some difficulty about the phrase “original document” but we must put some restriction on what the Taoiseach for the time being would be entitled to demand back and it seems to me that “original document” is about the best possible concept we can use.

I would imagine that there is this distinction or that this is a sort of difference we might draw: Senator Hayes mentioned the documents which had been circulated to him as a member of the Cabinet and of which every other member of the Cabinet got a copy. I would not regard those as original documents but I would regard the file which would be compiled in the Minister's Department as an original document and I feel that it is reasonable that if a Minister or Parliamentary Secretary took such a file home and either through inadvertence or deliberately, retained it, the Taoiseach should be entitled to insist that it be handed back to become part of the records of the Department.

That is the sole purpose of the subsection. There is nothing sinister in it. I am quite certain that the likelihood of any document prior to 1932 or any other date of that nature being demanded at this stage is so remote as to be completely unreal. Nevertheless, as Senator Ryan pointed out on Committee Stage, it would be illogical to fix a specific date. If the Taoiseach is entitled to demand back original documents, he should be entitled to demand them back at whatever date they came into the possession of the former Minister or Parliamentary Secretary.

Professor Stanford

Just on the phrase "original document," it seems to me perfectly clear. Perhaps, I am simple-minded in this. Certainly, in classical scholarship an original document is a document which is not a copy of a preceding document. When that is the case, I do not see how it would cover in a law court any document which is a copy of a pre-existing document. So that the Minister might have as many copies as he likes of the lease of Leinster House in his possession, and the Taoiseach would not have power under this Bill to ask them back. But, if he has a document which is not a copy of any preceding one, then the Taoiseach has power to ask it back. From the historical point of view it seems perfectly clear and desirable that such documents should be recovered to the Central Office.

Professor Hayes

The Minister finds fault with us first for misrepresenting him and then for not being determined enough in attacking him. I suppose it is impossible to please the Minister. I could say, for example, with a new determination that the Minister does not seem to understand what is in his own Bill. I could say that gently without being charged with being determined. I do not know what is an original document. My understanding was the same as my colleague's Senator Stanford's, but, from the Minister's recent explanation it would appear that the documents I may have at home or any other ex-Minister may have at home, which were copies circulated to members of a Government, are not original documents but if I had a file at home and the file contained copies of letters that would be a document that should be asked for under this subsection.

Mr. Haughey

If it had the original working papers.

Professor Hayes

Supposing some of the documents were copies, could I take them out of the file and retain them?

Mr. Haughey

No. That would bring the whole file within the ambit of the subsection.

Professor Hayes

I agree entirely that it would. Then I come to the conclusion that the Minister does not really know what he wants and has not thought this thing out properly. There is a possibility—I agree that, perhaps, it is a remote possibility— that when certain documents were being revealed for the purpose of indicating certain historical facts as they appear to certain people this power might be used to prevent the issue of these documents. That may very well not be so but it does appear to me that as the subsection is worded it gives the Taoiseach power or purports to give the Taoiseach power which it would appear to me it is extremely difficult to exercise.

This is an old hobby horse of mine, Sir. Officials advising Ministers, and Ministers themselves accepting the advice, tend to get Bills which in order to hit one nail upon the head cover an immense ground. They endeavour to stop every gap and provide for every possible contingency. This is an example of it. It seems to me that if the Minister is in earnest and that it meant something he would take the word "original" out and leave in the word "document".

Mr. Haughey

Do not tempt me.

Professor Hayes

I do not think it makes much difference either way but I feel that the power should be exercised only from a particular date and the Minister himself appeared to feel that. However, what he has succeeded in proving—and I am afraid I am somewhat convinced myself—is that the subsection is not workable and does not mean anything at all. So, if it does not, perhaps, we ought not to bother any more about it.

Amendment, by leave, withdrawn.

An Cathaoirleach

Could amendments Nos. 18 and 19 be discussed together?

Mr. Fitzpatrick

As the Minister has met me on amendment No. 18 by introducing amendment No. 19—as a matter of fact amendment No. 19 goes further than I had ventured to suggest in amendment No. 18—I shall not move amendment No. 18—I thank the Minister for meeting me.

Amendment No. 18 not moved.

Government amendment No. 19:

In page 7, line 29, before "no" to insert "not in any case to a date later than eight days after he has been first remanded, and".

Mr. Haughey

I have great pleasure in meeting the Seanad, and Senator Fitzpatrick in particular, in this amendment.

Amendment agreed to.

An Cathaoirleach

Amendments Nos. 20 and 21 go together.

Mr. Fitzpatrick

I move amendment No. 20:

In page 8, line 9, before "seized" to insert "or thing".

In order to explain this amendment I think I will have to read subsection (5) of Section 16 as it stands at present.

That subsection reads as follows:

Any document seized under this section may be removed and retained for so long as the Minister for Justice thinks proper, 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 to the thing so seized in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.

As the Seanad will see, that subsection deals with a document or other thing which may be seized under the Act and it deals with them differently. It provides that a document which is seized may be withheld from the owner for as long as the Minister for Justice directs but any other thing which is seized under this Act can be held only for a period of one month. Then if proceedings are brought for an offence under the Act it may be held until the termination of those proceedings and thereafter dealt with in accordance with the law. What I cannot understand is why the Minister, in drafting this Bill, has thought fit to differentiate between a document and something else seized under the Act. The document comes out second best. Under the subsection as it stands now a document may be seized in a raid on a house and no charge may ever be brought against anybody and still the document may be withheld from its rightful owner for all time. I do not think that is reasonable.

A document, the Minister told us, may not have any great value but an ancient manuscript, an ancient document, could be every bit as valuable or more valuable than an antique gun, an old uniform, a picture or a photograph. There is not, I think, very much in this section and I am surprised that the Minister did not look into the matter between the Committee Stage and the Report Stage and tidy up the section by accepting this amendment. Certainly on Committee the Minister made no case in favour of this subsection as it stands beyond saying that something else may be valuable but that he could not visualise a document being valuable. I could go on repeating all night that a document could have great value. It could have sentimental value or, indeed, market value, an original manuscript, family history——

Mr. Haughey

A birth certificate.

Mr. Fitzpatrick

——the lease of a person's house or some other valuable document. It could, in fact, be a deposit receipt. Why the section was put as it is I cannot understand. There is not much necessity for me to say any more in favour of this now. I shall await the Minister's explanation and I could have something more to say then.

Mr. Lindsay

I formally second.

Mr. Haughey

I have not anything to add to what I said on the Committee Stage and I am very sorry my explanation was so unsatisfactory from Senator Fitzpatrick's point of view. Regarding the point he made last, I should like to point out that you could not go around seizing any old document. You could not seize the Book of Kells out of Trinity College.

Mr. Fitzpatrick

I do not see why you could not.

Mr. Haughey

Because subsection (3) says that it must be evidence of or relate, directly or indirectly, to a contravention of Section 9. It is fairly difficult, therefore, to visualise a valuable or priceless or valuable old document being seized in this connection. What would normally be involved is a seditious document, a document which would be evidence of the commission of crime. Do not forget that we are dealing with Section 9 offences only in which the safety or the preservation of the State is involved. It is not unreasonable to grant the Minister power to retain this type of document indefinitely. You could in this case have a document the very publication or release of which would be harmful or prejudicial to the safety of the State. That is why the differentiation is made between a document and a thing.

I cannot readily visualise a document being of any value or its being kept by the Minister constituting a hardship for anybody. I could visualise that in the case of a thing. The police might seize a printing press, a transmitting apparatus or something of that nature which would be fairly valuable property. In the case of property, there is the stipulation that it may be held only for a month. That, and the other provisions of that sort do not apply in the case of a document because a document might be seized, the publication of which could be quite harmful to the safety and preservation of the State. That is why in the case of a document the Minister should be entitled to hold on to it indefinitely.

Mr. Fitzpatrick

I regret that I cannot accept the Minister's explanation. If a document such as that described by the Minister is seized, surely proceedings will follow and a charge will be brought against somebody under the Act?

Mr. Haughey

It might not be possible.

Mr. Fitzpatrick

The section gives power to deal with a document under the law as it stands.

Mr. Haughey

Senator Hayes referred to turbulent times in our history and I am sure there are documents in our files and at Garda headquarters the publication of which, even at this stage, would be, to say the least of it, undesirable.

Mr. Fitzpatrick

Indeed, I am sure there are a lot of documents at large that might be very embarrassing but if you have a document the publication of which might be prejudicial to the safety of the State I say that a charge would be brought under the section.

Mr. Haughey

You might not be able to establish a charge.

Mr. Fitzpatrick

If a document such as the Minister describes were found in a person's house, I think it would certainly come within one of the all-embracing sections of the Act. A charge would be brought and it would be dealt with in the ordinary way. Here you could visualise the lease of a person's house being seized. The house was being used for illegal assembly, it was thought, and, therefore, it would be necessary to seize the lease.

Mr. Haughey

How would that come under subsection (3)? It would have to be a document which would be evidence of or relate to a contravention.

Mr. Fitzpatrick

The lease would be evidence of the ownership of the house. The lease could be seized for that purpose and under this subsection it could be held indefinitely. I really cannot see the difference. I can see a gun being seized and, perhaps, being far more dangerous.

Mr. Haughey

That can be done under a different Act.

Mr. Fitzpatrick

It probably could —under the Firearms Act, or something like that. I could see great hardships arising under this section. I do not think we should place in the hands of any future Minister authority which could be abused.

Amendment, by leave, withdrawn.

Amendment No. 21 not moved.

Mr. Fitzpatrick

I move amendment No. 22:

In page 8, section 17, between lines 40 and 41 to insert: "() Nothing in this section shall require any person to furnish information which would incriminate himself".

This I regard as a very important amendment. It is an amendment to Section 17. Section 17 reads as follows:

Where an officer of the Garda Síochána not below the rank of chief superintendent has reasonable grounds for suspecting that an offence under Section 9 has been committed and for believing that any person is able to furnish information as to the offence or suspected offence, he may apply to the Minister for Justice for permission to exercise the powers conferred by this subsection and, if such permission is granted, he may authorise a member of the Garda Síochána 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.

I object to that section as it stands on the grounds that, under it, a person may be called upon to give information which will incriminate himself. It is a well-known principle in law that a person should not be called upon to give information or to answer any question which would incriminate him. I raised this point on the Committee Stage. The Minister then stated that it was not intended that a person should be called upon to incriminate himself under this section.

I say that there is grave doubt as to whether or not a person could be called upon to answer questions or give information which would incriminate himself. My opinion is that, as the section stands, if a person were asked to give information he could not refuse to give it even if it did incriminate him and, if he did, he would be guilty of an offence. I would refer the Minister and the House to the Offences Against the State Act, 1939, and to Section 52 of that Act. That is the section under which a detained person can be questioned and asked to give information. Subsection (1) of Section 52 of the Offences Against the State Act, 1939, reads as follows:-

Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the Garda Síochána may demand of such person, at any time while he is so detained, a full account of such person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or subsection of this Act or any scheduled offence.

In my opinion, if a person were called upon under the Bill now before the House, when it becomes an Act, to give information which might incriminate himself and refused to give it, and if he were prosecuted for that and put up the defence that he should not be asked to give information which would incriminate himself, and that the section did not intend that he should do so, the advocate for the prosecution could well state that if that were the intention of the section it would have said so because Section 52 of the Offences Against the State Act says specifically that he shall be called upon to give information about the commission of an offence by another person.

Therefore, when the Legislature intended that the information should relate to another person, in the past, it said so. In my opinion that would be taken as a sound argument for saying that the present section extended the information in the possession of a person to an offence committed by himself.

This is another case of the Minister's failing to meet the House in a reasonable manner. Here is a subsection which the Minister says means one thing and which Members of the House say means another thing and which may very well be held by the courts administering it to mean something other than what the Minister says it means. The Minister refuses, by the addition of a few simple words, to clarity the position and to put the matter beyond all doubt. I say that that is not meeting the House in a reasonable manner and it is not treating the Seanad as a serious, deliberative, helpful Assembly.

Taking these two sections together —Section 52 of the offences against the State Act and Section 17 of this Bill—there is a convincing argument for using Section 17 of this Bill to extract information from a person on which he can be convicted. If the position were vice versa, I could understand it because the Offences Against the State Act was Emergency legislation. The Bill with which we are now dealing is ordinary, peacetime, permanent legislation. I await the Minister's observations.

Mr. Carton

I formally second the amendment.

Mr. Haughey

First of all, I want to point out that these provisions deal entirely with Section 9 cases—offences under Section 9; in other words, offences where the safety and preservation of the State are concerned. Senator Fitzpatrick upbraids me for not being reasonable with the Seanad and says that the Seanad is endeavouring to be helpful. I cannot see that in this regard. The only people to whom Senator Fitzpatrick in this amendment is trying to be helpful are spies and foreign agents.

Professor Dooge

No. People accused of being spies or foreign agents, not convicted.

Mr. Haughey

He is trying to make the position of the Executive in regard to these people more difficult. We have to be practical about these things. One can be liberal to the point of being irresponsible.

Mr. Fitzpatrick

Is the Minister changing his argument from that on the Committee Stage, because on the Committee Stage the Minister expressed the view that the section did not mean what I said it means and that it could not be used as I said it could be used? Is he arguing something else now?

Mr. Haughey

I am making this argument, that I am not being obscurantist or anything else in refusing to accept this amendment from Senator Fitzpatrick nor am I being unreasonable. I am merely trying to put down in this Bill provisions which will make the job of the Executive in preserving the security of the State reasonably effective. What is being provided in this Bill is far less stringent and far less draconian than what is in the existing law. If the Senator is serious about this amendment, he seems to me, therefore, to have betrayed an appalling lack of concern about the terrible position which obtains at the moment.

At the present time under Section 6 of the Official Secrets Act of 1920 the Garda can demand information without the intervention of the Minister for Justice at all. In the Bill the Minister for Justice is now interposing between the Garda and the person concerned. I am making it necessary for the Garda to procure the permission of the Minister for Justice before they exercise the power with which we are dealing. Furthermore, at the present time the rank of the member of the Garda Síochána involved here is either an Inspector or a Superintendent. I am restricting it to a Chief Superintendent. Under the 1920 Act information can be demanded of a person relating to any offence. I am restricting that in this Bill to an offence under Section 9, in other words, offences where the safety and preservation of the State are concerned.

What I am providing here is far more liberal and far less draconian than the existing law. This provision will normally relate to a case where the Garda are seeking evidence from one person about an offence committed by another. If the situation to which Senator Fitzpatrick adverts arises, namely, a position where a person has information about a crime committed by himself, the Garda in that case will arrest the person and bring him to trial for that. They will not bring him to trial for refusing to give a statement——

Mr. Fitzpatrick

They will not seek to convict him out of his own mouth.

Mr. Haughey

If they think a person has evidence about an offence which he committed—anybody who commits an offence has evidence about the offence—the Garda will not go through any tortuous procedure; they will arrest the person and put him on trial for that offence.

Mr. Fitzpatrick

This is police state legislation.

Mr. Haughey

At that rate, the Senator is living in a police state at the moment and has being living in it for the past 30 years and it did not worry the Senator too much.

Professor Hayes

The Minister in this Bill constantly shifts his ground. This matter was raised in Committee on the 28th November last and at Column 1581 of the Seanad Debates of the 28th November, 1962, Senator Fitzpatrick said to the Minister:

Does this section enable a Garda officer to question an accused person and require him to give information which might convict him?

Mr. Haughey: I think the overriding principle that no man need give evidence against himself would govern that.

Which I take to mean that no man under this legislation would be required to give evidence against himself. Later on in the same column the Minister said in relation to Section 17:

I think the whole section clearly applies to information about a crime committed by somebody else.

The amendment seeks to prevent the section from applying to a case where a man is asked to convict himself out of his own mouth and where it is an offence if he refused to answer. The Minister's line in Committee was that there was no such thing in the Bill. His line now is that that was the ordinary law and that the Bill is better than the ordinary law. The two things are quite irreconcilable. I am as much concerned as the Minister is for the preservation of the safety of the State—I do not think anyone could deny that—but I do not want in ordinary peacetime, even for the preservation of the safety of the State, to infringe the principle that a person cannot be asked to answer questions which would incriminate himself.

While the Minister appears to believe that there is a principle of law which prevents that from happening, I do not see how any principle of law will override a provision in a statute such as the Minister has here. We cannot have it both ways and it is quite unworthy of the Minister to say Senator Fitzpatrick or any other Senator wants to preserve the position of spies and foreign agents. Senator Fitzpatrick has no concern for spies and foreign agents. He has concern for ordinary Irish people who, under the provision of this legislation, might find themselves compelled under penalty to answer questions which might incriminate themselves. If it is not in the legislation we ought to have proof of that and we have no proof of it. The legislation here in front of us plainly means that. If the Minister does not want it to mean that he should accept the amendment.

Mr. Nash

Whether in peacetime or wartime any person, be he Irish or be he foreign, who does anything contrary to the preservation of the safety of the State deserves to be treated with justice. That means if he is innocent he should be held to be innocent. If he is guilty he does not deserve to be held innocent. As regards the principle of a person incriminating himself there are many exceptions to that principle incorporated in our legislation within the past two or three years and in older legislation. It is in the Road Traffic Act, 1961, where a person who is not even the owner of a car can be questioned by the Guards and be required to give certain information. If he does not give it he is liable to be charged with an offence even though he is not the owner of the car that is thought to be involved in some breach of the traffic laws. It is also to be seen in older legislation which still applies in this country and in respect of which there are prosecutions in our courts every other day.

If a person is found to be in possession of goods and the police have reasonable grounds for believing those goods to have been stolen they can prosecute him and have him brought before the district court. If he is not able to give a satisfactory explanation to the district justice as to how he got those goods he is liable to a penalty of imprisonment. We have that where it is merely a matter of damage to property as in the case of a traffic offence. We have it in the case of suspected stolen goods. This has reference to a case where the safety of the State is at question. Now, before a man can incriminate himself, he must, first of all, be guilty. If you question somebody who is innocent, no matter what answers he may give he will not prove himself guilty because if his answers are truthful that is the end of the matter. If he is guilty the Guards may, of course, thereby get evidence to convict him. Good luck to them if they do, provided they do not indulge in any third degree methods.

They should be entitled to question him the very same as, and more particularly than, they are entitled to question a person who has some knowledge of a driving offence under the Road Traffic Act, even if he is not the owner of the car. Surely, if we are to give protection for what may be small injuries to property, or small thefts, it is reasonable that there should be such provision in a statute where the safety of the State is concerned.

Mr. Lindsay

During the course of the debate, I have remained in a state of detached amusement, but when I find a member of this House with the experience and stature in the legal world of Senator Nash rising here tonight to give a parody version of the principle of the presumption of innocence until guilt is proved, I am forced to my feet to say something in defence of the well-known principle of our criminal law that the onus of proof never shifts at any time from the prosecution and that the accused is never called upon at any time during a case to prove his innocence.

Senator Nash says that if a person is innocent any answers he gives will, of necessity, make that innocence more apparent, and if he is guilty and the Garda question him, more power to them if they extract his guilt or evidence of his guilt from him. If that is not an invitation to third degree I do not know what it is.

Tomás Ó Maoláin

No.

Mr. Lindsay

I would most emphatically object to any such invitation being extended from this House by the Senator, through the Minister, in relation to this Bill or any other Bill, to the police force of the country to engage in third degree on a person they suspect, either rightly or wrongly, of being guilty of anything, and put him through the mill in order to extract it from him.

Mr. Haughey

Third degree methods are never used in this country by the Garda.

Mr. Lindsay

There are opinions on each side in that respect. I do not want to enter into a controversy in that regard but I do want to say that if accused persons in this country did not make statements under any circumstances, and held out in grim silence, there would not be ten per cent. of the convictions that are got at the present time. Anyone who likes to draw any inference from that can draw it.

Mr. Haughey

There is such a thing as clever cross-examination and the Senator, being a barrister, should know that.

Mr. Lindsay

Clever cross-examination in the guardroom on a person brought in—surely the Minister is not advocating that the police should engage in clever cross-examination? The Minister must know, not only as Minister for Justice but as a barrister, that a statement got by question and answer is not a valid statement. It is not a voluntary statement.

Mr. Haughey

It is a legitimate line of inquiry by the Garda.

Mr. Lindsay

Is the Minister contending that a statement arrived at——

Mr. Haughey

Not a statement.

Mr. Lindsay

——as a result of question and answer, is a voluntary statement, and that any part of it, or the whole of it, is admissible in evidence against the accused?

Mr. Haughey

The Senator said that if persons held out in grim silence and did not make statements or did not at any time confess or make a confession, only 10 per cent. Of the convictions that are now procured would continue to be procured.

Mr. Lindsay

Yes.

Mr. Haughey

Then by inference he suggested that information was got from accused persons by certain undesirable methods. I maintain that that inference does not naturally follow. I say that no such thing as third degree is used by the police in this country. Information can be got from an accused person by examination and questioning by the police and that is all.

Mr. Lindsay

Would the Minister deny to a person apprehended, but not yet accused, the right of saying to the police officers: "I will not answer"?

Mr. Haughey

Not at all. He is perfectly entitled to say that.

Mr. Lindsay

When a statement has been got at 6 o'clock or 7 o'clock in the morning, the accused having been apprehended, in the words of the police, may be at 6 o'clock or 7 o'clock the evening before—and having been in the day room all night without sleep, with, perhaps, intermittent cups of tea —is the Minister naive enough to believe—and is he further naive enough to ask us to believe—that a little persuasion has not been used?

Mr. Fitzpatrick

He does not see anything wrong in that.

Mr. Haughey

I deny that any form of third degree is used by the Garda.

An Cathaoirleach

May I suggest that we are getting outside the scope of the amendment?

Mr. Lindsay

Perhaps, we are. I want to go back to the point that Senator Fitzpatrick made on his amendment. No man or woman should be put in the position of being compelled to answer questions which might incriminate themselves. That golden vein runs right through the whole of our criminal law and no one should be put in a position of jeopardy in that regard. The presumption is there, and I hope long will it continue to be there, that, whether a person is guilty or innocent, he is presumed innocent until he is proved guilty in a court of law after due process of the law.

Mr. Fitzpatrick

It is rather difficult, if not impossible, to conduct a debate on this Bill with the Minister with the attitude that has been adopted. I have not had very long experience of Parliamentary procedure but I take it that the various Stages through which a Bill goes in this House and in the Dáil have a certain purpose.

On Committee Stage, on 28th November last, we discussed this section, and I suggested to the Minister, as Senator Hayes has previously pointed out, that this section could be used to extract from an accused person evidence on which he could be convicted. The Minister then said to me that the section meant no such thing. I think I was entitled to assume from that, that the Minister and I were in agreement on the section, and that both of us were agreed that the section was not intended to be an instrument under which a person could be compelled to convict himself.

Mr. Haughey

We still agree on that.

Mr. Fitzpatrick

I thought it was only left for me to try to convince the House that the section needed some amendment in order to carry out the Minister's intention and my intention and you can imagine my amazement when I came in here this evening and found the Minister fighting on an entirely different front and saying that of course a person can be asked questions which may convict him under it and, if he is a spy or suspected of being a spy, why should he not be? If I had known that I was coming in to meet that case, I would have prepared the case against it. I would have brought in the 1911 and 1920 Acts and would have them here in front of me. I have been deceived by the Minister. I was invited by the Minister to come in here and to make one case——

Mr. Haughey

I never invited the Senator to make any case.

Mr. Fitzpatrick

Well, I am entitled to make it.

Mr. Haughey

You certainly are.

Mr. Fitzpatrick

The Minister tacitly invited me by his conduct and his attitude on the previous occasion.

Mr. Haughey

If I tacitly invited you to have a drink, you would not take it too seriously.

Mr. Fitzpatrick

I said in the early stages of this debate that Section 3 discloses a dangerous trend in criminal legislation by the Minister and his advisers and the further we go through this Bill, the more I am convinced that that is so and the more I am convinced that the Minister is a dangerous Minister in the Department of Justice.

I am rather amazed at my colleague, Senator Nash, who stands up here and says that this thing can do no harm to an innocent man and if a person is guilty, then he should be convicted and if the police get information from him to convict him, good luck to them; get it by any means they like, as long as they do not use third degree. What are we doing here? We are creating a statutory third degree.

Tomás Ó Maoláin

Pampering spies is what you are trying to do.

Mr. Fitzpatrick

Pampering accused persons.

Tomás Ó Maoláin

Pampering spies.

Mr. Fitzpatrick

We are creating here a statutory third degree.

Tomás Ó Maoláin

We are dealing with spies.

Mr. Fitzpatrick

When you hear Senator Ó Maoláin and these people over there getting noisy, you know they realise they are on a loser. They know they are beaten and all they have to help them is the number of their feet.

Tomás Ó Maoláin

One gets disgusted hearing this namby-pamby attitude to spies.

Mr. Fitzpatrick

We are creating here statutory third degree. We are saying to an accused person: "You answer these questions; you give me this information or, if you do not, you will get six months imprisonment." If that is not third degree, I should like to be told what it is.

A Senator

Would he get six months imprisonment for killing a man?

Mr. Fitzpatrick

I do not like to hear about killing from that side of the House.

Mr. Haughey

Senator Fitzpatrick is too young to be indulging in that sort of remark.

Mr. Fitzpatrick

The history of this country has been written and we know all about it. I am making a case and I would be obliged if I were allowed to continue to make it. I am making a case that this section is a section which is a complete and absolute departure from a settled criminal law practice in this country and I say, and I repeat, that it is creating for the first time, as far as I know, a statutory third degree.

Mr. Yeats

Is it not the law now?

Mr. Fitzpatrick

I wish Senator Yeats would make some sort of contribution to this debate in an orderly way. May be he is not allowed to. These ignorant interjections are no help.

Mr. Yeats

Ignorant, but true.

Mr. Fitzpatrick

As long as you admit they are ignorant, it is all right.

Mr. Yeats

They are true.

Mr. Fitzpatrick

Senator Nash has stated that under the Road Traffic Act people may be asked for certain information. It is a fact that within the past few weeks summonses brought under that section have been dismissed in Waterford and have been dismissed in Leitrim and that cases stated to the High Court are pending. In fairness to the House, Senator Nash should have told us that.

Perhaps the Minister will take the attitude: "Oh well, if that is done, it is bad law." The Minister is now taking the stand that this section means what I said it meant the last day, that a person can be invited to answer questions which might incriminate him. I say that that is very dangerous legislation and I do not think that it is a section of which this House should approve.

Question put: "That the proposed words be there inserted."

The Seanad divided: Tá, 16; Níl, 25.

Tá

• Carton, Victor.
• Crowley, Patrick.
• Davidson, Mary F.
• Desmond, Cornelius.
• Dooge, James C. I.
• Fitzgerald, John.
• Fitzpatrick, Thomas J.
• Hayes, Michael.
• Lindsay, Patrick J.
• McAuliffe, Timothy.
• McDonald, Charles.
• McGuire, Edward A.
• O'Brien, George.
• Quigley, Joseph.
• Ross, J. N.
• Stanford, William B.

Níl

• Ahern, Liam.
• Boland, Gerald.
• Brady, Seán.
• Brennan, John J.
• Browne, Seán.
• Cole, John C.
• Farrell, Joseph.
• Fitzsimons, Patrick.
• Flanagan, Thomas P.
• Healy, Augustine A.
• Hogan, Daniel.
• Lahiffe, Robert.
• McGlinchey, Bernard.
• Nash, John Joseph.
• Nolan, Thomas.
• Ó Donnabháin, Seán.
• Ó Maoláin, Tomás.
• O'Reilly, Patrick.
• Ó Siochfhradha, Pádraig.
• Ruane, Thomas.
• Ryan, Eoin.
• Ryan, Patrick W.
• Ryan, William.
• Sheldon, William R. W.
• Yeats, Michael.

Tellers: Tá, Senators Fitzpatrick and Carton; Níl, Senators Farrell and Seán Ó Donnabháin.

Question declared lost.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Lindsay

On the final stage of the Bill, I want to make a few observations which I hope will be pertinent observations. However pertinent they are, of course, I have to be conscious of the fact that anything I say will be of no avail towards changing this particular piece of legislation. It is, nevertheless, necessary, in my view, that views should be expressed even at this stage to show that certainly on this side of the House we are not impressed by the approach being made to us in this atmosphere of law reform and the manner in which we are being treated. When work and research have been put into various sections and aspects of this Bill they have been pushed aside by a variation of argument that amounts to very dangerous Parliamentary evasion.

The schoolbooks tell us nowadays that we are living in an age of speed. Others talk of an age of nuclear armament, but as far as I can gather from various utterances made by the Minister for Justice in the Dáil, in the Seanad, to various bodies outside and even recently at the Council of Europe at Strasbourg, law reform is his theme. This is part of the programme of law reform, a programme which must and should be welcomed by all Parliamentarians in either House and by people outside with an interest in law and law reform and its implications for the citizens in general. With such a programme I am in wholehearted agreement and in the efforts behind it I am prepared to play a full part, given, of course, the circumstances of equality of argument and an atmosphere of co-operation.

This particular Bill, the Official Secrets Bill, which has now been considered by this House as well as by Dáil Éireann, is part of this programme of law reform and such a programme in my view, and I am sure in any reasoned view, should be conducted in an atmosphere of co-operation and mutual help and agreement because the matters with which we are dealing are not party issues. We are dealing with matters affecting the preservation of the State in this particular Bill and they affect our people as a whole. Accordingly, I think that what was done in the case of the Civil Liability Bill, a Joint Committee, is something which could very well be brought in here. The same Minister is in charge. He knows very well the value of referring these kind of things to committee, particularly when they are matters affecting the whole nation.

It is curious that, with such a programme and with co-operation and the atmosphere of mutual help which is so essential, the Minister has surrendered so little in the face of a great many amendments, all of them reasonable and many of them pre-eminently reasonable. The Minister seems to have come here and to have made up his mind that he is going to have his way and that his way is the reasonable way. Of course, that does not always work. It cannot always be expected to work —that the person in charge is always right. It would be a very bad thing if it were.

There are many objections to this Bill. In some ways, it is a rehash to some extent of the 1911 and the 1920 Act. For over 40 years we have got on extremely well without this Bill. I inquired at the very beginning—I asked only a few questions on the Second Reading—as to the reason for bringing this Bill forward at this time. That question has remained unanswered. I also asked what was the purpose of it at this time and the necessity for it. That question has remained unanswered. I asked whether it was likely in connection with the certificate—about which there has been so much disputation—this question of retrospection would be involved. That question has been answered, in my view, neither adequately nor sufficiently comprehensively. We have been left somewhat in the dark as to whether the retrospection will be confined to the document or confined to the mechanics of the certification. All of that kind of phraseology is misleading and certainly from many points of view most dissatisfying.

I do not think any lawyer likes the idea of giving power to the Executive, to demand of its citizens information whereby those particular citizens may almost certainly find themselves convicted. We should jealously guard the principle of law that a man is innocent until proved guilty—and proved guilty in due process of law, not through clever cross-examination in a Garda day room over a period of time. If a man comes into a Garda day room and says: "I shall not make a statement" I think the matter should end there. He should not be detained any further without being charged with all speed and put into the position where he would be able to avail himself at once of legal aid.

I do not like the idea of a Minister having power—it is true it was there before—to certify that something is secret and confidential for the purpose of bringing it into court in order to supply the proof necessary to convict somebody. I thought Senator Dooge's contribution this afternoon on that particular aspect of this Bill was so forceful as to be coercive upon the Minister into its acceptance. But there was nothing doing.

I must come back—much as I dislike it—to Senator Nash's contribution some short time ago. All I can say about this is that it was a perfect example of Party loyalty suppressing for the time being what I am certain are his honest beliefs and his own honest practices always outside.

Senator Fitzpatrick has dealt with the position under the Road Traffic Act. That will be brought to play in the Supreme Court by way of case stated. It has been, I think, or is in the process of being so stated. The analogy in the Larceny Act, 1916, drawn upon by Senator Nash in relation to stolen goods, is not an analogy in the strict sense of the word in relation to this. When talking of the preservation of the State, I think the best way to preserve the State is to preserve the liberty of every subject in it. If that liberty of the subject is preserved and jealously guarded and if it is brought home to every subject that his rights are there, so guarded and so protected, it will make him so much more the better citizen and so much less likely to indulge in practices prejudicial to the safety of the State.

In this campaign involving a programme of law reform, I would again, and, finally, commend to the Minister the idea of the joint committee and not to bring forward legislation of this kind that affects all our citizens— whether they be supporters of the Government or of the Opposition Parties—that affects their liberty and their liability, civil and criminal, before it has been considered by a joint committee. These should not be Party matters but should be matters for a joint committee that would consider them in the light of experience and in an atmosphere of calm.

If the Minister is to have success in this business of law reform, if he is to look for unity on certain basic principles of law not only in this country but all over Europe, in accordance with his recent speech in Strasbourg —it is a commendable aspiration— then I think, and I do not say this with any disrespect but with the sympathy necessary to the occasion, the Minister is making the wrong approach, particularly to this House, when he comes here determined, as it were, not to give in on any suggested amendment.

If it is not feasible to do it by reference to the joint committee to which I have already referred, certainly in this House it would be better to approach it with the idea that at least some of us on this side of the House have an interest in the subject, have an interest in the citizen, in his liberty, in the preservation of his liberty, and that when we make suggestions and put down amendments we are not putting them down to thwart the Government in any way but as a result of careful research and hard work based, as they must be based, on the experience of some of us in the courts. The Minister is still young enough to learn that particular aspect of it. If the Minister wants to go down in the Parliamentary history of this country as the great reformer, he will have to learn the lesson that reform comes from conform and conforming means the universal common good.

Mr. McGuire

I purposely have not taken any part in this debate because I felt the questions mostly concerned experts in law, although I did recognise that the questions were ones which to some extent concerned every citizen. They were questions concerned with the safety of the State and the liberty of the subject. As these questions were of such a deep nature and such a high quality, I felt that being what I might call just an ordinary intelligent citizen, I was not qualified to take part in these highly technical discussions we have heard here, and I must say this debate has been a credit to the Seanad.

The only reason I rise to speak at this stage is that I believe I would be failing in my duty as a citizen and as a Senator in not expressing my disappointment once again that a purely Party machine should have been brought into operation here to grind down these well-argued and reasonably-presented amendments which, as the last speaker has said, were not produced with any Party feeling or any Party desire to score against the Government but in order to make the Bill good, to make the Bill one that would achieve its object of preserving the security and safety of the State and, at the same time, preserve the liberty and security of the individual citizen against the State.

In this modern world in which we live, more and more power is being given to the State against the individual citizen. In Ireland, we fought so long for liberty and talk so much about liberty that we ought to be very careful about everything we do that affects the right of the individual to security and freedom. I have been in the Seanad now for 15 years and I have seen with sadness many many times very capable Ministers who, when they come in here and have civil servants behind them—who are very good in their own way—try to give the impression they are infallible. We talk about infallibility in religion but the way it is upheld in the Seanad is pathetic. I have seen men working very hard at these amendments, all very good men on this side of the House, men high in the professorial life of this country, and their amendments, which have been carefully reasoned, are turned down merely by a vote when it comes to the point of decisions.

I believe that if many of the Bills that have been passed through the Dáil and this House were challenged under the Constitution, they would not stand up and those that have been challenged have not stood up. Very few Bills have been challenged on constitutional grounds because it is a very expensive procedure to do so. Many people who know a lot about this subject have told me that literally hundreds, if not, thousands, of cases could be made under the Constitution against Bills that have been put through the Oireachtas. That is a very bad thing and I am sorry to say there were one or two things that Senator Dooge spoke about that could have been accepted. It is a pity.

A strong case was made but perhaps there were things said which created an atmosphere and which put the good things in the background. In my 15 years in the Seanad, I have seen good work being set at naught. I have put down only five amendments during all the time I have been a member of the Seanad, four of which were accepted, but I have seen Senators putting down 20 amendments and not a single one was accepted. It is because of this atmosphere in the House that the work of the Seanad is set at naught and I cannot help saying this, having listened to this debate.

Tomás Ó Maoláin

I would like to assure Senator McGuire that these amendments which were suggested were turned down, not because of the machine but because we believe that the Bill as it was presented is better than any of the suggestions offered in the amendments. Senator McGuire must not assume just because the members on the opposite side went to a lot of trouble in thinking out these amendments, they were therefore better than the provisions in the Bill.

I was nauseated by this pampering of spies and the concern that was exhibited for people who might betray the country. Those who read their daily newspapers and listen to the radio and know what has happened in the USA and Britain, both in the Civil Service and in private life should not grumble and should ask themselves whether even this legislation is strong enough to meet the menace which may present itself to us in the not too distant future as it has presented itself to other countries. This is a very good Bill and as it stands will go a long way towards preserving the safety and security of the State and ensuring justice for all those who behave themselves as good citizens should behave themselves.

An Leas-Chathaoirleach

The Minister.

Professor Hayes

Is the Minister concluding?

Mr. Haughey

Not necessarily.

Professor Hayes

The procedure is that the Minister concludes on the Fifth Stage. He may intervene if he wishes.

Mr. Haughey

I shall wait with mounting impatience.

Mr. Ross

I do not want to strain the patience of the Minister. I wish to speak as a Senator completely independent of Party and as a practising lawyer. When this Bill was introduced, while I could not agree with some of the provisions in it, I felt the Minister was introducing a further stage in his policy of law reform. As such, I very much welcome the Bill and in principle, I give my wholehearted support to the Minister in his programme of law reform because I have no doubt it will be of tremendous help to practising lawyers.

However, I must echo with you, Sir, when you were speaking from the floor of the House, and with other Senators, my great disappointment with the attitude the Minister has taken on this Bill. I should like to believe Senator Ó Maoláin when he says the decisions were taken on merit and not on Party principle but I think I would be extremely naïve if I were to look back on to-day's proceedings and on the debate on this Bill in the House and not see abundant proof of a Party machine in action. That is so, to my great disappointment because I do not believe this is in any way a political Bill or need be a political Party Bill. Many of the amendments which were put forward could have been accepted by the Minister, I believe, without loss of power to the Government or the Minister.

I believe that the Minister has now armed himself with a Bill, and what will in due course be an Act, which he will regret bitterly in years to come. We will not see the fruits of the work that has been put into the Bill, or the results of the Bill for ten, 15 or 20 years. I think in years to come we will regret the power which has been voted and accepted in this Bill, and I can foresee a time when the Minister himself will regret these powers having been given to people who may one day be his political opponents, or who may one day use these powers in a manner in which the Minister and the House never intended them to be used.

Professor Dooge

I have very little to say on this Stage of the Bill but I should just like to make a few comments on the form in which the Bill now passes from the Seanad. Like other speakers I commend the Minister for his zeal in law reform. I think he is doing good work in this regard but something has gone sour in this particular Bill.

As it stands now, the Bill is a bad copybook headline for law reform in this country. Whether or not we are essentially re-enacting the 1911 and 1920 Acts, what we have here in the Bill at the moment, and what we are enacting into law, is legislation of a type of which we could do with much less. The whole approach to the Bill puts too much power and judicial decision in the hands of the Executive. The Minister's approach has been that every scrap of information that comes into the public service is ipso facto secret and confidential and that ipso facto each scrap of information can be the basis of a criminal prosecution.

Of course, every tiny little breach of this Act will not be the subject of a criminal prosecution. Only those will be the subject of a criminal prosecution which the Attorney-General agrees should be and probably in practice only those in which the Minister certifies that a certain element of secrecy is part of the process. What, in fact, will go before the courts under this Bill, will not be what has been determined by the Legislature to be criminal acts, but a selection and sample from breaches of the law which the Minister and the Attorney-General, being in the Executive, decide should be brought before the courts.

This Act in all its rigour will be broken repeatedly. I believe that the 1911 and 1920 Acts are repeatedly broken. If we are to look at them in their full rigour, the fact that we have only had one prosecution under the 1920 Act does not say that there has never been a breach of the law. The position is, as we know, that many a good story that goes the rounds started life as an official secret. Many a good story is told which was originally an official secret and under this Bill, as under the present Acts, it remains an official secret all its life.

I think that everything in this Bill, as everything in the 1911 and 1920 Acts, is far too inclusive. I think that is bad legislation. We should be able to do more in this House to define more closely what is and is not an offence for the purposes of a criminal prosecution. It is too late now but it should be done in future Bills. We should ask the Minister to use his best endeavour that in future Bills of this type, which are not matters of Party contention, we should try and arrange to bring more of the details of the legislation before the House.

A measure of this type is altogether too all-embracing. As I have said before, I am not at all happy about the position of civil servants under this Bill. The position may not be worsened compared with the 1911 and 1920 Acts, but the position is that under this Bill as it goes into law the Civil Service associations are at the mercy of their Ministers. Civil Service associations who have to negotiate with Ministers are like so many ticket-of-leave men who can act only, and are at liberty to act only, so long as their Ministers allow them to do so. In general the position under this Bill is that it will lead to bad law and worse administration.

I want to say finally that I have no apology to make for fighting every inch of the way on this Bill. I believe the fight that has been put up on every Stage of the Bill in the Seanad —and I can assure the Minister that the resistance to this measure and the aspects of the measure to which exception has been taken have been firmly founded on conviction—requires no apology. I sincerely hope that when a Bill of this scope comes before us again there will be no need for the long, complicated and sometimes confused discussions which we have had in the Seanad on the Official Secrets Bill.

Professor Hayes

Like everyone else, I welcome law reform, but I think law reform should not be confused with determined efforts to still further strengthen the hands of the Executive. I am not in favour of a weak Executive. I have done my share to see that government in this country is enforced. I am not in favour of spies or informers and the attitude that Senator Ó Maoláin adopted tonight in confusing an accused person with a convicted person indicates how the Minister's support is completely wrong in its whole attitude towards this question of our criminal law. Nothing could be more distant from the truth than the statement that if you make any attempt to help a particular man you are supporting spying.

Tomás Ó Maoláin

Who said that?

Professor Hayes

Nothing could be more subversive in our public life than that attitude on the part of any group of people. It is particularly objectionable when it is taken up by those who control the majority in the Dáil and the Seanad. Law reform does not mean, as this Bill does mean as we find it now, that you take and fill up every gap; you take every possible measure, do everything to fill every point and control everything and at the same time, because you do not like the judges, exclude the judges from the core and kernel of the Bill. That is what is done in this Bill as we find it here now.

The Bill as we find it now is quite unnecessary. It is an extravagance; it is a waste of public money. There were two Acts under which we have been working, as I said before, for more than 40 years of great turbulence and of great difficulty, internal and external. There was nothing wrong with them. Here, the Minister has obviously—and I pay this tribute to him—taken great personal trouble about this Bill. He could have been better employed. A great deal of official time has been taken on this Bill. That official time could have been better employed. There were long debates in the Dáil and long debates in this House, none of them having, I am afraid, much fruit or much success in convincing the Minister. I am afraid that is very wasteful. We all could have been much better employed.

Only one case has been taken in the past 40 years. That has been dealt with already. The accused was found innocent by the jury; the judge commented adversely upon the prosecution and the accused was made to pay his own costs although he was a poor man, although the judge had found in his favour and although the judge had said the prosecution should never have been taken.

The Minister does not like judges. when that was brought to his attention, the Minister said the judge allowed himself some ill-considered remarks. That was not a remark for a Minister for Justice to make about a judge. Quite recently, here, when Senator Fitzpatrick brought to the Minister's attention the fact that the Supreme Court on the previous day here in Dublin had found certain provisions of an old British Act to be unconstitutional, the Minister allowed himself to say: "It is good law in Britain", which implied that the British knew the law and our judges gave him bad law. The Minister knows as well as I know, as well as we all know, that the problem in Britain before the court was quite different from the one here because here we have a written Constitution and the judges here were giving their decision in accordance with that Constitution. The British were in quite a different position.

The only other thing I have to say is that, as I say, judges have been excluded because sincere people, as I said here before, wanting to get a job done in their own particular way, want to let nobody interfere with them; they want to build up a house on their own scheme. The judges, working on a different scheme, sometimes take the roof off the house, sometimes go in and destroy the foundations, but I would rather be tried by a judge than by a Minister and I would rather be tried by a judge, no matter who appointed the judge, than by any group of civil servants.

That is the position I am in and we are all in. That is what our experience teaches us all. That is what the Minister does not want and that is what the row is about here in the Seanad, that we do not believe that the judges, whoever appoints them, should be excluded from the interpretation of the law and from the interpretation of evidence.

That is the view of the only lawyer in the Fianna Fáil Party who spoke on this matter, Senator Nash. He went so far as to say that a particular subsection now in this Bill was unconstitutional but he found himself in the position, in accordance with his Party loyalty, of voting to put into the Bill the subsection he thinks is unconstitutional. In other words, his Party loyalty submerged his legal knowledge and experience, which presumably got him into the Seanad. One can only hope the submergence of his legal knowledge and experience is only temporary but perhaps that is a vain hope.

However, the Bill has been improved slightly. Despite the pessimistic view taken by Senator Dooge, it has been improved slightly here, but very slightly, and the Minister takes two different lines all the time. Only to-day he took the line that a civil servant never knows any secrets and therefore an amendment is unnecessary or that the amendment actually encourages a civil servant to reveal secrets. He has been—perhaps because he is not quite convinced himself— peculiarly shifting and evasive on this whole matter.

The Bill as it is now before us is a bad Bill in several respects, but probably in its working out, it will not prove to be as bad as some of us think. As Senator McGuire has said, this House has a function to examine these Bills. In this case, the Bill was examined very impartially and the case put very clearly and not in a partisan fashion. In fact, as far as I myself am concerned, I did not read the Dáil debates on the Bill. I find I approach a matter better when I do not do that. We got some satisfaction from the Minister, and perhaps one should say thanks to the Minister for that, but I do think the Bill as we now find it, slightly improved as it is, is wasteful, extravagant and unnecessary.

Mr. Crowley

Like most of the members of the House who, like myself, are ordinary laymen, I had preferred also to leave the main arguments in favour or against this Bill to the representatives of the legal profession but even at this late juncture, having listened to the debate, although I did not have the opportunity, unfortunately, of hearing this afternoon's debate which, I understand excelled all the others, I do feel that an obligation rests on me to express one or two views regarding the Bill.

I am rather shocked, quite frankly, as a layman, to hear a number of speakers suggest that, however remotely, this Bill can be defended to some extent on the ground that it does take us a step further towards law reform. To my unenlightened mind— perhaps it can be so described and I am quite willing to accept the admonition —if this Bill cannot be defended on some better grounds than that, namely, of making it easier either for the administration or the advocacy of the law by the legal profession, that fact in itself would condemn it right from the outset.

Tomás Ó Maoláin

Nobody said that.

Mr. Crowley

The Minister's rejection of the last amendment moved to this Bill appeared to me clearly to suggest that he repudiates what always appeared to me to be a fundamental principal of law. When a murderer is charged with murder, he must first, by law, be warned of the possible consequences of making even a statement, apart from direct evidence in court, which may in some sense incriminate him. Yet we have the position here tonight that the Minister rejects a very simple but, in my view, a very necessary amendment to a Bill which merely asked that nothing in the Bill should require any person to furnish information which would incriminate himself. That is an extraordinary attitude for the Minister to adopt and I certainly am looking forward to hearing what the Minister has to say in defence of his rejection of that amendment.

Mr. Haughey

I have already said it.

Mr. Crowley

I do honestly hope that if and when this Bill becomes law, as the Minister apparently is determined to make it, somebody will in the very near future have the courage to challenge its constitutional validity. I now express the hope that the Bill will be declared to be unconstitutional, as, in my humble opinion, it is.

Senator Dooge has already referred to the concern which has been expressed in many quarters in particular about the position of civil servants under this Bill. I want to assure the House that Senator Dooge has not either exaggerated or over-emphasised that concern. I have heard long discussions among people who should and who, I believe, do know what they are talking about as to the possible implications of this Bill and, further, I have had experience of at least two instances in which people in the Civil Service can in fact be brought almost to interrogation on simpler matters even than this Bill would now appear to commit them. These are obviously matters to which, quite frankly, I think the Minister should be obliged to give a great deal more thought than he appears to have given, or than his Party appear to have given, before this Bill passes into law.

I am all the more surprised at the Minister's attitude because of his appearances in this House in the past on other measures when, I think it is fair to say, we found him amenable to reason and more than anxious to try to meet the views expressed in the House.

Mr. McGuire

Hear, hear.

Mr. Crowley

I think, in fairness, that must be said before this debate concludes. On that account, it is to be regretted that the Minister did not present himself to this House, in defence of this measure, in a much more reasoned attitude than he has adopted throughout the debate.

Mr. Fitzpatrick

I should like very briefly to go on record as being in violent opposition to this Bill going on the Statute Book (1) because it contains a number of very undesirable provisions and (2) because it establishes a number of very dangerous precedents.

Subsection (3) of Section 2—which makes the certificate of the Minister conclusive evidence against an accused person on a vital matter and takes away the discretion of the court—is obviously highly undesirable and highly dangerous.

The Section under which a document can be taken from a man's house and kept indefinitely, without any charge ever being preferred against that man, is an undesirable section which should not remain in the Bill.

Section 17—under which a person can be called upon to give information which might incriminate him—is an undesirable section which should not be in the Bill.

Senator Ó Maoláin speaks of spies. When he speaks of spies, he means people accused of spying. He wants to convict them before they are convicted and to treat them as convicted criminals the day they are charged. The next thing is that we shall have a Bill introduced and they will say: "You are treating murderers with kid gloves. Murderers, murderers, get them away and hang them." When they speak of murderers they will be speaking of persons accused of the crime of murder but not yet convicted.

When the Legal Aid Bill was before this House, I had occasion to disagree in principle with the Minister when he said he did not propose to provide legal aid for people who have been convicted of crimes on a number of occasions. He called them "habitual criminals." All that is a very dangerous slant. It betrays a very dangerous frame of mind on the part of the Minister and his advisers. I do not propose to go into detail except to say that when to-day the Minister was beat to it for an excuse on his seal, under Section 3, either he or some of his advisers threw before this House as an analogy or as an excuse for the seal and the Minister's certificate that once a seal was put on a lease it never was questioned. I never heard anything more childish or more ridiculous in my life. The lease speaks for itself.

It is true that this Bill is a Bill that will not be called upon very often. We have been told several times during this debate that the existing Act, dealing with this type of crime, has been called upon only once in the past 40 years. However, that is not my main objection to this Bill. It is, rather, that we are setting up here dangerous precedents—precedents that will be used in the future.

Since this Bill came before this House, the Minister was pressed on a number of occasions to provide a precedent for subsection (3) of Section 2. He could not produce it, because such a precedent does not exist. But future Ministers—be they of Justice or anything else—who want to rob the courts of their rights—and when I say "rob the courts of their rights" I mean rob the citizens of this country of their rights—will be able to point to the precedent established by subsection (3) of Section 2 and to say that a freely-elected, democratic Parliament of this country enacted it. Likewise, they will have a precedent under Section 17 for saying that it is no longer the golden rule of law in this country that no man may be called upon to convict himself. They will be able to point to Section 17 and to say: "There is the precedent and it was passed by a freely-elected, democratic Parliament in this country, after long deliberations." I do not say this in any offensive way when I say: "thanks be to goodness that it has been passed only by those tied to the Minister's Party in one way or another." I should hate to think it was passed by this House on a free vote.

Mr. O'Reilly

It is unusual, I think, to have such a display of oratory at this stage on any Bill. I am beginning to wonder why. I am like Senator McGuire, to a great degree. This Bill is a matter for lawyers —though I did intervene on Senator Dooge's amendment. Hence I am like the fool—jumping in where angels fear to tread—at this stage. However, I am entitled to ask why there is such a flow of debate at this stage.

I presume an attempt is deliberately being made to inject some venom into the debate in the hope of making it appear to people outside that the people opposite are the last defenders of human liberty in this country and that all the people on this side are just a voting machine, prepared to vote at the Minister's say without having any views whatsoever on the matter to be decided. It is ignorant presumption on the part of people who make that claim. It is quite unfair for any Senator to make that claim. If they had any real respect for the dignity of the human personality they would not dare to make such a suggestion.

Why is there this full-dress debate at this stage? I am convinced that it is the desire, as I have said, to make it appear that the people opposite are defending the rights of the individual——

Mr. Fitzpatrick

As we always did.

Mr. O'Reilly

—defending human liberty against a Minister and a group of people who vote at random. I wonder what concept of liberty exists in the minds of people who make that claim or who talk along the lines we have just heard in the full battery of debate, if I may say so. I wonder what concept of liberty exists in their minds. My view is that liberty exists somewhere between licence at the one extreme and extreme authority—tyranny —at the other extreme and that, at best, liberty is a point of balance existing between tyranny and licence, between tyranny and chaos.

An Leas-Chathaoirleach

Would the Senator confine himself to what is in the Bill?

Mr. O'Reilly

I shall try not to wander into a wider field of debate than already exists. In this matter the liberty of the individual which it has been suggested is being infringed upon can exist only in ordered conditions. No matter what Government are in power they have a duty to preserve order and to protect the entire community in many ways. That is what is proposed in this measure, to curb people who may commit acts which are prejudicial to the State or to society as a whole. In voting on the various sections of this Bill we have to decide whether the arguments put forward in this vaunted effort to preserve human liberty are to be accepted or whether we should take the Minister's view. If I take the Minister's view I do not think I should be accused at this stage of being part of a voting machine which was prepared to destroy human liberty and that another group of people are the last defenders of human liberty in this country.

Mr. Fitzpatrick

First and last.

Mr. Haughey

I am considerably surprised at this sudden oratorical outburst on the final stages of this Bill. Let me say at the outset that a large part of the debate on this Bill and the attacks which have been made on it are due to the fact that Senators are almost entirely unaware of the very stringent nature of the existing law on this subject. This Bill, as it leaves the Seanad, is a far less stringent, a far less restrictive and a far less draconian measure than the existing statutes, the 1911 and the 1920 Official Secrets Acts.

You, Sir, spoke about law reform and I agree with a great deal of what you said but I do not particularly regard this Bill as a piece of law reform in the real sense. I distinguish in my mind between pure law reform and what I call departmental legislation. To a large extent this Bill is departmental legislation in that sense. In answer to Senator Hayes's question as to the reasons for the Bill they are fairly simple. First of all, as part of the law reform programme it is one of my objects to have our statute law contained in modern Acts of this Oireachtas and that we should not have to be referring back for our statute law to Acts of the British Parliament or earlier Acts. I think that is a reasonable and sound objective and it is an objective which, apart from its patriotic or sentimental implications, has great advantages for our practitioners and our citizens.

Secondly, this is a tidying up measure. The existing statutes which govern the law in this regard, the 1911 and 1920 Acts, are out of date to a large extent. The phraseology is unsuitable to modern times and the Acts can be regarded as anachronistic. Therefore, this Bill is a consolidating measure inasmuch as it is consolidating in one Act what up to now has been contained in two.

Insofar as there is any reform in this Bill it has been to liberalise the situation and to remove out of the existing statute law some of its most objectionable provisions. As I said, the attacks which have been made on this Bill in the main were made in ignorance of the existing law and of its draconian provisions. Any comparative lawyer taking this Bill and comparing it with the 1911 or the 1920 statutes would regard this as a far more liberal and enlightened measure than the existing statutes.

Senators have expressed themselves disappointed that I have not been more forthcoming in this Bill. I mentioned earlier I would wait with mounting impatience and I am glad Senator Crowley did say that on previous occasions I have proved myself reasonably amenable to sensible suggestions put up by the Seanad and I like to think that that is true and I hope it will always be true. However, this is the sort of Bill where inevitably the Executive and Parliament will find themselves in conflict because, as has been pointed out, the Executive is concerned with the safety of the State, the preservation of the machinery of government, efficient administration and considerations of that sort. Therefore, a measure such as this cannot be approached with the same mutually co-operative and helpful attitude as a more real law reform measure would be.

Nevertheless, and in spite of what has been said here, I have accepted, in all, 17 amendments to this Bill from the time it was first introduced, either Opposition amendments or amendments put forward by me to meet points of view which have been expressed by the Opposition. I do not think that is too bad in regard to a Bill of this nature where it is inevitable that there will be a difference of opinion even between Members of the Seanad. Senator O'Reilly rightly pointed out that the Executive must be concerned for the general welfare and must have regard to the necessity to make the machinery of government work. I hope this Bill will go on the shelf and be very rarely invoked, but I think it is the duty of a wise Executive, and the duty of a responsible Oireachtas, to have a measure of this sort on the stocks, ready for use on the odd occasion when the safety or preservation of the State or some other emergency renders its invocation necessary. I sincerely hope that a great deal of the agitation which has affected the minds of Senators in regard to this Bill will, as time goes on, prove to be completely illusory because, as I say, this is a Bill which I hope will be very rarely invoked.

May I reply to a couple of points raised by you, Sir? I think that the machinery of a Select Committee or of a Joint Committee, is very valuable. Of course, it does bring with it its corresponding disadvantages. It excludes out of the discussions the non-technical man's contribution. There are very few measures, except the really technical ones, on which the ordinary Senator or Deputy cannot make a worthwhile, sensible, contribution. Inevitably, a Select Committee or a Joint Committee tends to be constituted of experts or technicians, and such Committees are at the disadvantage of being to some extent narrow, and of excluding from their orbit of operation the contribution by the non-technical member of the Oireachtas. Generally speaking, I would avoid a Select Committee or a Special Committee except on some complex or complicated technical sort of Bill for that reason.

I want to assure the House that so far as I am aware third degree methods are never used by the Garda Síochána. On the specific point you mentioned, Sir, the position is that until the point where the accused is charged, he is never forcibly detained in a Garda barracks. Any person who is suspected of a crime is absolutely free to come and go from the Garda station until the point where the Garda charge him with the offence.

Mr. Fitzpatrick

Is that made clear to him when he is brought in?

Mr. Haughey

It is.

Mr. Fitzpatrick

I doubt it.

Mr. Haughey

I am making it clear to everyone now. Until the time the Garda say: "We are going to charge you with an offence" and issue the usual warning, you are free to leave the police station any time you wish.

Some heat was engendered by some Senators about the fact that Senators had gone to a good deal of trouble preparing amendments and studying the Bill, and I had rejected them out of hand. In that regard, I want to say that I do not think the Seanad did a particularly good job on this Bill— not as good a job as I have seen it doing on other Bills. Unfortunately, practically no point of substance was raised which had not been raised in the Dáil. If the Seanad is disappointed in me, I am disappointed in the Seanad too, because it has not come up to its usual form. From time to time, I have accepted points put forward by Senators which were never raised in the Dáil, but if I may attack the Seanad for a moment, I want to accuse it of a certain dilatoriness because this time it did not come up with any substantial point which was not raised in the Dáil.

Professor Hayes

Was the exclusion of members of the Dáil and Seanad raised in the Dáil?

Mr. Haughey

That was accepted. I thank the Senator for reminding me.

Professor Hayes

It was a new point raised here.

Mr. Haughey

Of course it was not a point of substance and I accepted it only out of sheer good nature. I did not regard it as strictly necessary at all.

Mr. Fitzpatrick

Deputy McGilligan attended to it in the Dáil.

Professor Hayes

He did not.

Mr. Haughey

To come back to what I mentioned a few months ago— Senators were inclined to suggest that amendments were rejected out of hand. That is not so. Every amendment put down and every point put forward was carefully considered by me and my advisers. I think I had much more detailed discussions with the Parliamentary draftsmen and my advisers on this Bill than I probably had on far more important Bills. Each amendment was carefully considered and examined, even if at the end I had to come in here and oppose it and give the appearance of rejecting it out of hand. Nothing was rejected out of hand.

I want to reiterate that I am surprised at the storm which has blown up on the final Stages of this Bill. I think it is unnecessary. I think this is a valuable and useful piece of legislation and that it is far less severe than the two existing statutes. As I have said, I hope—and I think it is not a vain hope—that the Bill will go on the shelf and will not be invoked for the next 20 or 30 years. Again let me say that the perturbation of Senators is not justified.

I want to assure Senators finally that I have not changed, and I am still prepared to accept any point put forward by the Seanad for the improvement of any measure which I bring here before the House. With regard to the suggestions that I am a kind of anti-liberal, draconian, executive type of person, concerned only with getting established the Executive's point of view and grinding the ordinary citizen in the dust, I want to remind the Seanad that I am the Minister who brought in the Bill providing legal aid for poor persons, and I think that was a far more important provision for the less fortunate and weaker sections of the community, so far as the law is concerned, than any single amendment put down by the Seanad on this Bill.

Question put and agreed to.

Professor Hayes

And no bad feelings.

Mr. Haughey

Not a bit.

The Seanad adjourned at 10 p.m. sine die.