I move amendment No. 14, on behalf of Deputy McGilligan:
In page 7, line 8, to delete "shall" and substitute "may."
As the Minister himself used the expression when moving his amendment, I do not suppose he will resent my using it now. This section enables the State to compel the court, whether the court thinks it proper or not, in certain circumstances to hold a hearing or part of a hearing in camera. The section as it is worded, even allowing for the amendment which the Minister has introduced, provides that if the State makes an application to the court and bases that application on the statement that the publication of matter concerned with the trial would be prejudicial to the safety or preservation of the State, once the application is made, it cannot be refused under this section. The court may think it is the greatest nonsense, that it is an effort by the State or a Minister of the State to cover up something they do not want published, because it might not suit them to have it published. They may feel the safety or preservation of the State has nothing, good, bad, or indifferent, to do with the matter. But if the application is made and if it is based on a statement by the State that the safety or preservation of the State is in question, then the court must make an order either determining that the entire hearing will be heard in camera or whatever part the State makes the application in respect of should be heard in camera.
The suggestion in Deputy McGilligan's amendment is to try to remedy that to some extent by making the section permissive to the court rather than mandatory on the court. Deputy McGilligan suggests that instead of using the words in this section " . . . the court shall make an order to that effect," the word "shall" should be deleted and the word "may" substituted instead. I believe it is important that the Minister exercise the reasonableness about which he boasted a few minutes ago in connection with this amendment. To my mind, and to the minds of a number of other Deputies on this side of the House, this whole Bill is a very dangerous measure. It is a measure which, as I said earlier, if wrongly used, either by this or any other Government, could be fraught with extreme danger for individual citizens of this State.
Time after time, in section after section of this Bill, the discretion is taken away from the courts to deal with matters which are offences under this Bill in a manner which they might think these matters should be dealt with. The courts are not allowed to decide what or what is not to be regarded as official information. The courts are being compelled to accept as conclusive evidence a certificate by the Minister that a particular matter is official information. Here again in Section 12 there is no question of the courts—after all, they have been set up by the State and their function is to interpret the laws and administer justice on behalf of the State—being allowed any discretion to do their job as it ought to be done. They are being told by the Minister in this Bill that, whether they like it or not, they will have to make an order simply on an application being made by the State.
I feel that is dangerous. This whole Bill is dangerous, particularly in the matters I have mentioned. We have already discussed a section in this Bill which enables the State to arrest a person thought to be guilty of an offence under a section of this Bill, to put him in jail and to keep him in custody without ever bringing a charge against him. The only safeguard is that further proceedings under the Bill, when it becomes an Act, cannot be taken without the consent of the Attorney General. The person may be arrested, lodged in jail and kept in jail without the consent of the Attorney General or anyone else. Now we have added on to that the fact that when eventually he is brought before the court, presumably with the consent of the Attorney General, the State may on its own decision compel the courts to have the case heard in camera, simply on a statement made on behalf of the State that the subject matter of the prosecution or that information which may come out during the trial may be prejudicial to the safety or preservation of the State.
The State are not required to give any evidence of that. There is no authority under the Bill to anyone to have the Minister or the Commissioner of the Garda Síochána or anyone else go on oath in the witness-box and express their opinion that the statement made on behalf of the State is correct. There is no machinery at all for any kind of proof being brought before the courts. An application is simply made by counsel or solicitor on behalf of the State and the court must, under the terms of the Bill if it is allowed to go unaltered, make an order providing for the hearing of the entire case or whatever part of the case is referred to in camera.
I would urge the Minister even at this late stage to have some regard to the position of the judiciary and to their responsibilities. I suggest he should take the view in this matter that the judiciary are a responsible body of men; and if they have an application made to them of the sort envisaged in the section, they should be allowed exercise their own discretion and intellect to decide whether or not the safety or preservation of the State is in fact involved or whether the situation might not be that the hearing of a case in camera might have undesirable consequences, not only for the State but for the individuals affected by the section.
