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Select Committee on Legislation and Security debate -
Tuesday, 25 Mar 1997


Amendments Nos. 1 and 2 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 5, subsection (3), line 38, to delete "18 months" and substitute "one year".

The purpose of amendments Nos. 1 and 2 is to ensure that the provisions of the Act will apply to local authorities after one year instead of 18 months as specified in the Bill. There is a serious democratic deficit at local government level. Effectively, local authorities are run by the county or city manager and his/her officials. Recently we had the extraordinary case where a councillor had to sue the county manager to obtain access to records. In fairness it should be said that many managers are very willing to cooperate with elected councillors, members of the public and the press but it should not be a question of co-operation. Local authorities play an increasingly important role in people's everyday lives and the impact of decisions made there have a large bearing on them. There is no reason a culture of secrecy should prevail in local authorities. Whatever arguments are made — and some are spurious — in relation to central government secrecy, particularly in the area of the security of the State, there is no reason whatsoever for any culture of secrecy to prevail at local authority level. It is vital, now we are putting in place a legal right to access to information, that this Bill should reflect the optimum level of access by the public to information.

Some progress was made in the Seanad as regards the 18 month period but there is room for further changes. I propose to substitute "one year" for "18 months" so that the provisions of the Bill will apply to local authorities six months sooner than is currently specified. Similarly, amendment No. 2 will reduce the implementation time for health boards from 18 months to one year.

I appreciate Deputy O'Donnell's point and, like her, am eager to see this legislation come into force as quickly as is practical and feasible. The extra six months in the outer limit has been provided to give enough time for a proper consultation and preparation phase in local authorities and health boards. Unlike central government where a lot of detailed preparatory work is taking place, it has not yet happened in county councils and health boards. If these bodies are ready in 12 months I want them to comply with the legislation by then and I am anxious to ensure that they will be ready for the introduction of freedom of information. We all have experienced problems gaining access to environmental information regulations, as Deputy McDaid said on Second Stage but if something is introduced before the ground has been prepared it will be a disaster. The section covers the practicalities involved and gives us the potential of the extra margin. Like Deputy O'Donnell, I too hope we will not need it.

It is clear the Minister is not minded to accept the amendment. A year is enough time to allow local authorities put in place the procedures whereby they can comply with the legislation. Surely some preparatory work will be done before the Bill comes into effect; there is another provision stating that the Bill will not retrospectively effect information for two years. There is ample time for local authorities to put their affairs in order. It is up to the Minister but she is giving them too broad an ambit for delay. I will withdraw the amendment if the Minister is not willing to accept the point.

The period was three years and it has been reduced to 18 months.

There has been some progress.

Amendment, by leave, withdrawn.
Amendment No. 2 not moved.

Amendments No. 3 and 36 are related and may be discussed together.

I move amendment No. 3:

In page 6, between lines 3 and 4, to insert the following subsection:

"(4) This Act shall repeal the Official Secrets Act, 1963.".

This is important legislation and we must get it right from the start. I have no intention of delaying the Bill, particularly since a general election is looming and the public has a right to this information. Having said that, there was some confusion in the Dáil recently when, in reply to Deputy Michael Kitt, the Taoiseach said it was not this Government's intention to repeal the Official Secrets Act. He was later contradicted by you, Chairman.

I do not think the Taoiseach——

The Taoiseach categorically stated there were no plans to repeal the Official Secrets Act but you flatly contradicted him. We must, therefore, clarify whether it is intended to repeal that Act and perhaps the Chairman can do so. As you said, Chairman, this committee's report said the Official Secrets Act had contributed significantly to a culture of secrecy in the Civil Service and was inconsistent with the right to freedom of expression and the principles of good Government. We feel strongly that the matter would be simplified if this Bill repealed the Official Secrets Act, although legal opinion may be different. As it stands, the Act gives the prosecution sweeping in camera powers which are even greater than those of a court. It was used in recent cases against the journalists Ms Susan O’Keeffe and Ms Liz Allen and the sooner it is repealed the better.

The intention of this amendment is to discover the Minister's thinking on substituting this Bill for the Official Secrets Act. As the Chairman has pointed out, the committee recommended replacing the Act with other legislation — one Bill to legislate against espionage and the other to provide that unauthorised disclosure, commonly known as leaking, will be dealt with by the Civil Service disciplinary committee. We may lose a great chance to replace the Official Secrets Act with this legislation and I ask the Minister to spell out any complex reasons she may not be able to do so. If we are serious about providing freedom of information, it is our contention that we cannot do so without repealing the Official Secrets Act. I hope the committee's report will soon be before the Dáil; perhaps the Minister can tell us when. The two matters go hand in hand. Pending the Minister's explanation, I propose that the Act be repealed.

I support the amendment in as far as it gives the Minister an opportunity to explain how the Government proposes to provide a freedom of information procedure while keeping the Official Secrets Act on the Statute Book. Having studied the matter, the Select Committee on Legislation and Security recommended that the Act be repealed as soon as possible. It is illogical to put this marvellous Bill on the Statute Book at the same time as the outdated and deeply undesirable Official Secrets Act. This legislation will not come into effect until a year after it is passed so it must be possible for the Minister to give a commitment that, by then the Official Secrets Act will be a thing of the past. I do not see the logic of leaving the matter in abeyance.

This Bill puts the public right to information and access to information and records on a statutory basis and it would be more coherent either to amend this Bill to repeal the Official Secrets Act or to bring forward a slimmed down version of the Official Secrets Act in so far as it is necessary to deal with the key elements mentioned. The Select Committee on Legislation and Security, which has studied this matter in detail, has decided it is time to repeal the Official Secrets Act, 1963. Perhaps the Minister could explain the reasons for the delay in giving a commitment to repeal it. This is an opportunity to hear her view on this matter.

I congratulate the select committee for its excellent report on the Official Secrets Act, 1963. Like other Members of the committee, I want this outdated legislation removed from the Statute Book as soon as possible.

Deputy O'Donnell suggested a sensible timescale. Within the next year, during which the administrative arrangements will be put in place, the Department of Justice should replace the Official Secrets Act, 1963, with suitable legislation which will address the two points made in the select committee's report -the replacement by criminal sanctions in relation to espionage and disclosure of particular information, such as sensitive security, defence or law enforcement information which could cause serious damage to the national interest and replacement by disciplinary and civil legal sanctions in relation to unauthorised disclosure of other information which could cause damage. However, if we repeal it with a one line amendment, as suggested by Deputy McDaid, we would leave a vacuum so that if somebody released sensitive security information which was damaging to the national interest — for example, in relation to protections against potential Northern terrorism — there would be no sanctions in place. We need to replace the Official Secrets Act, 1963, with a more modern and appropriate framework as recommended by the select committee.

This Bill tears the heart out of the Official Secrets Act, 1963. Section 48 changes the operation of section 4 of the Official Secrets Act which presumes that everything is secret. We have replaced it with the presumption that everything is on the table unless it is sensitive information or causes specific damage to an important area. All that is left in terms of repeal is to examine an appropriate sanctions regime. I have already spoken to the Minister for Justice in whose bailiwick this lies. We should set ourselves the timescale suggested by Deputy O'Donnell so that within the next year we will have said goodbye to the Official Secrets Act.

Is the Minister accepting amendment No. 36 which seeks to delete "AMEND" and substitute the word "REPEAL" in the long title?

If I did that there would be no penalties in place if someone leaked sensitive security information. It is appropriate for the Department of Justice to lift criminal sanctions for trivial breaches of confidentiality. I hope that within the next year, when it has examined the select committee's report, it will proceed with that repeal. We cannot do it with a one line amendment to this Bill.

The Minister seems to contradict herself because she said the Government would repeal the Official Secrets Act, 1963, yet the Long Title states the Bill will amend it.

It would require separate legislation.

The Minister says it tears the heart out of the Official Secrets Act, 1963. I disagree with that because the Minister can certify something as secret and it is up to the citizen to disprove it. The onus should be on the Minister to go to the information commissioner to determine why it should be kept a secret. However, the Minister is putting the onus on the citizen.

I support the spirit of Deputy McDaid's amendment that we should repeal the Official Secrets Act. The Minister has accepted its spirit but the difficulties involved are well founded. Deputy McDaid mentioned me contradicting the Taoiseach. However, the parliamentary question to which he referred was tabled in early February before our report was published on 25 February. At the time the question was tabled the Taoiseach was correct to take the stance he did and I did not contradict him. Since the publication of the report, the Taoiseach is in a much stronger position to say the Government intends to repeal the Official Secrets Act.

I hope, as the Minister said, the Department of Justice will act on the basis of our report. If we accept the letter of Deputy McDaid's amendment, we will leave a vacuum which will only be filled by criminal sanctions imposed by the Department of Justice. I sympathise with Deputy McDaid but I ask him to accept that it is not simply a matter of repealing the 1963 Act.

I hope we have a full debate in the Dáil on this committee's report and that it is followed by an indication from the Minister for Justice of a specific date for the repeal. I agree with the sentiments expressed by Deputy O'Donnell in this regard.

Amendment, by leave, withdrawn.
Section 1 agreed to.