This has now been brought down to case law, the Camell Laird case. The Minister brings that forward as an answer to Deputy Dillon, who asked about criminal cases. The Camell Laird case was a civil action. It is one where the non-disclosure of a document can easily be justified. It concerned a case of a submarine that sank. A number of lives were lost and the dependents of one of the officers lost on the ship took an action for negligence against the constructors of the submarine. They asked for documents which would show the type and construction of the submarine and, naturally, during the war period, it was considered that to disclose what was put forward as a secret construction and new improvements to a ship would, of course, vitally prejudice the safety of the State. Notwithstanding that, the courts were very reluctant to accept the fact that the State claimed the privilege.
That rolled on to a few other cases. There is a very well-known one of a man called Ellis against the Home Office. Again, it was a civil action. The man had been put on remand and sent to one of the English jails. He found himself assaulted and very violently assaulted by another prisoner, a man who was a convict. He discovered that this convict had been under medical treatment and he naturally made a complaint that a person who was under restraint as a prisoner should not have been allowed to wander around a jail and certainly should not have had access to the weapon with which he hit Ellis. Again, the State claimed privilege for the disclosure of the medical documents in that case. Again, it was a civil action. There are a couple of matrimonial cases. Broom is one and I cannot recall the name of the other.
In this country, the whole matter was discussed in great detail in a case taken against a person called Simpson in connection with what was called an indecent play. It was sought to put a police officer into the witness box and to ask him what his instructions were in going down to see this play. The matter of privilege was raised and was claimed. In the course of the judgment of the President of the High Court, which is the most detailed of the three judgments given, very definitely attention is called to the fact that occasionally an effort is made to get disclosure prohibited in connection with criminal matters. That was left open as a moot point.
There is a great difference between what the Minister is talking of and what is proposed here. The matter the Minister is talking of is simply where the State claims privilege, either on the ground that the disclosure of the document would prejudice the safety of the State or that it was intended to facilitate administrative action so that those who belonged to Departments of Government might write minutes freely without any belief afterwards that they would be disclosed to the public. Surely that is an entirely different matter from bringing a charge of a criminal type and founding it on a document and then saying to the court: "We will not let you look at that document?"
The case will be made under Section 4, if it is enacted, that a person shall not communicate any official information to any other person unless he has been authorised to do so. To get the gist of the proposal, you have to look back to earlier sections. According to the definitions, "official information" is information "which is secret or confidential or is expressed to be either and which is or has been in the possession, custody or control of a holder of a public office." The holder of a public office includes a person of ministerial rank or the rank of Parliamentary Secretary, so in order to prove an offence, all that has to be shown is that someone ranking as a public official had a document and that the Minister certified that the document which was secret and confidential was communicated to someone else. There is no question of what is called a guilty mentality.
There is the case which Deputy Sweetman talked about of the matters which will come to the hands of a Minister for Finance a few days before he makes his Budget Statement, but that is a special type of document. So far as my memory goes, every Cabinet document that comes to the hands of members of the Government is labelled "Secret and Confidential". Supposing one of those documents was very much out of date. During my time in office, a departmental committee considered a television service. They submitted a big report marked, "Secret and Confidential". That report was completely out of date a couple of years after, but it was still a secret and confidential document. If I, being a member of the Government, communicated that document in the sense of throwing it into a wastepaper basket, or sending it to a wastepaper merchant, all the Minister has to show is that he certifies that the document is secret and confidential. The courts need not look at the document, according to the Minister.
I turn to the penalty section, Section 13, in which certain penalties are laid down. According to subsection (2):
A person shall be triable summarily for any offence under this Act and on conviction shall be liable to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months or to both.
How is the judge to determine the penalty, if he has not seen the document? According to the Minister, all he has is a statement from some member of the Government that it is a secret and confidential document. How will he determine between a fine of £5 and a fine of £100, and a term of imprisonment of a week and a term of imprisonment of six months? How can he understand what is the gravity of the offence, unless he looks at the document? The two things are completely distinct.
The State claims privilege for documents and it wants to safeguard information, but it does not base a prosecution on that. It is a vast extension of that. That is a procedure which has been very seriously criticised by judges in England. It only came under real consideration in the Simpson case because there was a very definite acceptance of the line laid down in the Camell Laird case with reservations in regard to criminal matters. It is the gravity of the offence that decides the penalty, and yet we are told that the judge will decide in blinkers.
In the penalty section, it may be summary trial before a district justice, or else it may be trial on indictment. If it is trial on indictment, a jury will have to try the matter. How will a jury decide whether or not the offence is serious, unless they get a look at the document or get some disclosure? I have a later amendment down to the effect that a person shall not "in any manner prejudicial to the safety of the State" communicate any official information.
This Bill must be looked at in its proper framework. The two Official Secrets Acts in England are based on preventing spying and prohibiting the taking of maps or plans of dockyards and such places which are official secrets. We have no such guardianship here. The Minister just signs a document saying that it is secret and confidential and the judge has to take that.