Michael McDowell (Dublin South East, Progressive Democrats)

What amendment No. 82 seeks to achieve is amply covered by the terms of subsection (1), which states:

A person who is or was a member of the Garda Síochána or of its civilian staff or who is or was engaged under contract or other arrangement to work with or for the Garda Síochána shall not disclose, in or outside the State, any information obtained in the course of carrying out the duties of that person's office, employment, contract or other arrangement [and this is the point] if the person knows the disclosure of that information is likely to have a harmful effect.

The mens rea, the guilty mind to commit that offence, is that the person knew, when he or she did it, that it would have a harmful effect. That is a fairly high test for the prosecution to prove. It is balanced in its own way by subsection (3) which states:

For the purpose of this section, a person is presumed, unless the contrary is proved, to know that disclosure of information referred to in subsection (1) is likely to have a harmful effect if a reasonable person would, in all the circumstances, be aware that its disclosure could have that effect.

It introduces an objective standard of behaviour. Having said that, let us suppose that somebody who is in fact a journalist impersonates a superior officer, nobody could be said in those circumstances to know that the disclosure of the information to the superior officer would have a harmful effect. An innocent person who is duped would have a defence. I do not want to make this an unprovable offence, because it is there for serious reasons.

The House will know that we started off with a draft set of heads of the Bill which attracted considerable public controversy, that we have gone through a process of discussion with the representative bodies and such like and have produced a Bill which I am further amending to make it more precise, including the introduction of the double requirement of harmfulness and one of these categories, rather than deeming any of these categories to be per se harmful. I am softening the offence quite considerably in that respect. This is a question of balance.

I want to have a situation that those who deal with the Garda Síochana and the members of the force who require their colleagues to deal professionally with the information they are obliged to share all operate to a reasonable decent standard of behaviour. I am not asking people to behave like reverend mothers, but merely that they behave to a standard of decency which I think everybody is entitled to expect. The great majority of members of the force would instinctively, without any law, go down this road.

Section 55(4) does not prohibit a person from disclosing information if the disclosure is authorised by the Garda Commissioner, as per paragraph (d); is otherwise authorised by law, as per pargraph (e); or is made in the course of, and in accordance with the duties of that person, as per paragraph (a). That covers a significant number of potential defences. For example, section 55(4)(a)(x) covers disclosure to "a member of either of the Houses of the Oireachtas where necessary for the proper discharge of the member's functions,". That is a very broad provision for somebody who wants to act as a whistleblower. The person may go to any Member of the Houses of the Oireachtas, if it is relevant to that person's functions, such as holding the Government accountable. If one looks at the small print, one sees that the section is not draconian.

I do not want to reopen old wounds, but there have been occasions when a tiny minority in the Garda Síochána have revealed information which must have been crucifying to the victims.

There has been publicity about some of these cases. In one case an entire file was handed over to a journalist and it resulted in two women who were named in the file as being involved in an allegation of unlawful abortion, being visited by representatives of the newspaper to get their side of the story. Whatever the rights and wrongs of abortion, there was no reason a newspaper should be put in possession of such information with those consequences. Whatever the rights and wrongs of the situation and I do not wish to go into it, those two women were entitled to have their privacy totally respected and not to wake up one morning and find on their doorstep a member of the press asking them if it was true that X or Y had happened to them. That kind of behaviour, which thank God is extremely rare, should never be countenanced in any circumstances.

This section will act as a protection for members of the force who are asked for information by people who should not ask for it. They can say, "No, this is a serious matter. If you were to print that material or to publish that material or to convey that material to a third party, there could be a very serious criminal investigation".

When I was Attorney General, the former Garda Commissioner, Patrick Byrne, told me that in the absence of a section of this type, there was virtually nothing he could do to investigate many cases which were prima facie breaches of the Official Secrets Act, because he did not have a power of arrest, the power to make inquiries or the power even to check who was contacting whom by telephone. He could do nothing and was effectively relying on asking people whether they had done it and being told that it was not them and that was it.

I am not on some kind of solo run here. I have balanced this as fairly as I can. It protects whistleblowers and those people who have a constitutional duty to reveal information. It upholds all the best traditions of the Garda Síochána and provides a protection to members of the Garda Síochána that they can say to people who put them under pressure to disclose information improperly, "No, it is as good as my job is worth. If I disclose it to you, both you and I would be committing a serious offence and there are now investigatory powers which would put us both in jeopardy". That strengthens the hand of decent members of the Garda Síochána who are the vast majority and will isolate to a tiny minority those who seek to breach the law.

Senator Cummins made the point that on occasion the Garda uses the media but that can be a legitimate use. On occasions, perhaps, people may criticise it as being an illegitimate use. The Garda Síochána lives in a real world; it is not a group of reverend mothers. Its members must use publicity on occasions for their own purposes in the proper prosecution of criminal investigations. They cannot use the media as a form of informal punishment to pillory people whom they suspect. I believe this achieves the correct balance.

I am aware I have been criticised by a number of people in the media on both sides. I find it slightly confusing. I have been accused by some of being a wholly useless Minister because I have not taken action to stop information coming out. I have another group of critics who say that I am some kind of mad fascist because I have taken action. I wish these people would get together and sort out their differences.

The editor of one newspaper thinks this proposal is wholly wrong and another very senior journalist has castigated me savagely for not introducing something like this sooner. I suppose we live in a democracy and people are entitled to have their opinions. However, I think this section, as now amended, is right and it provides for all of the exceptions for which this House would want to provide.

Senator Cummins's amendment concerns the integrity of the force. I cannot imagine a case where that would be an issue where, for instance, it would not be permissible to go to a person in authority or a Member of the Oireachtas. If a Member of the Oireachtas has information and discloses it responsibly at a later stage, the media can feast on it. This is not a gagging writ in respect of material which should come into the public domain. There are checks and balances in the section as now drafted and I am very happy with it.