DAIL IN COMMITTEE. - PUBLIC SAFETY (EMERGENCY POWERS) BILL, 1923. THIRD STAGE RESUMED.

Progress was reported yesterday, when Section 1 was disposed of.

SECTION 2.

(1) It shall be lawful for a responsible officer to arrest and to detain in custody for any period not exceeding one week any person found committing or attempting to commit or whom such officer suspects of having committed any of the offences mentioned in Part II. of the Schedule to this Act.

(2) It shall be lawful for an Executive Minister to order the detention in custody in any place in Saorstát Eireann of any person arrested under this section in respect of whom such Minister is of opinion that the public safety would be endangered by such person being set at liberty.

(3) Whenever any person is arrested under this section such person shall, not later than one week after his arrest unless an order for his detention is made by an Executive Minister under this section, either be released, or be be charged with one or more of the offences mentioned in the Schedule to this Act, or with any other offence or offences and dealt with according to law, and shall for that purpose, if in military custody, be delivered into civil custody.

On behalf of Deputy Corish I beg to move:

In Sub-section (1), lines 7 and 8, to delete the words "or whom such officer suspects of having committed."

The responsible officer may be a Captain in the Army. Schedule No. 2 contains a long list of offences, some very serious and some less serious. No. 12 reads: "Aiding, abetting, assisting in, or encouraging the commission of any of the offences mentioned in this Schedule, or helping in the concealment or escape of any person guilty of any such offence." The officer is to be empowered under this paragraph to arrest and detain for one week any person whom he suspects of having committed the offences mentioned in the Schedule. I submit that that is too great an authority to give to an officer in the Army.

He may suspect that a person has helped to conceal another person who may be guilty of one of a very long list of offences that are set out. Having arrested and detained for one week, the Minister will, under another Section, be empowered to keep that person for an indefinite period without any assurance whatever that such prisoners will be brought to trial. It would be very easy, indeed, for an officer, not below the rank of Captain, to say that he suspects any citizen of having concealed, or attempted to secure the escape, or aided or abetted or assisted in the commission of any of these offences scheduled, and the mere suspicion by an officer that a person was party to, or conversant with, the fact that another person may have committed an offence, or by virtue of knowledge did not inform upon another person whom he may suspect of having committed an offence, is sufficient to warrant detention. This Section would give the officer power to detain for a week, and would give the Executive Minister power to detain indefinitely, merely upon suspicion of such a flimsy kind as that mentioned—not the suspicion of a specific offence necessarily, but the suspicion of having been party to the concealment of an offence by another person. I think that it is not justified by the circumstances or by the facts. It is giving too much power into the hands of a military officer. The military officer may under that power, frankly and openly given to him, simply detain a person, and when the question is raised why, all he has to say is he suspects he knew something of something that happened a week or six weeks, or two months ago, and no grounds further are required. A mere suspicion of the military captain, or the statement that he suspects, which might cover any amount of personal spleen, and anybody, under this Bill, can be brought to book. I do not know whether that is the intention of the Minister or whether he would intend or desire that such a power should be given, or whether it is due to inadvertance that this got into the sub-section. The effect of its deletion would be to make it lawful for a responsible officer to arrest and detain for a period, not exceeding one week, any person found committing or attempting to commit any of these offences, and it would deprive that officer of the power to detain any person whom he merely suspected of having committed an offence. I hope I am right in suggesting that it was not the intention of the Minister to give these very extended powers to an army captain, and I ask him, therefore, to accept my amendment.

It was not by inadvertance that this sub-section found its place in the Bill, or that the word "suspect" found a place in the sub-section. I could talk for hours on the soundness, as a general rule and in normal conditions, of assuming the innocence of persons until their guilt is proved. It is a quite sound principle; most civilised countries have adopted it as a basis of their system of justice, and yet there are few States that have not, from time to time, claimed the right to depart from it in respect of deterrent detention as distinct from punitive imprisonment. States always have claimed and I think always will in times of crisis and emergency the right to depart from that principle and to detain citizens during a time of crisis without cause proved in Court, and without trial. Now, if any State was ever justified in departing from it I think this State is justified in departing from it under existing conditions, and in such conditions as are likely to exist for some months. It is menaced by a conspiracy, and a conspiracy that has had recourse to acts such as disgraced the pages of very few countries in history—a conspiracy that was absolutely ruthless and conscienceless in the methods it adopted to gain its negative destructive end. The foundations of this State are not set. Arms and explosives are secreted throughout the country, and the hysteria of the last year has not passed away. We are asking power, in these conditions, to arrest and detain citizens on evidence short of legal proof. What is the exact force of the word "suspicion" in this context in sub-section (2)? Everything short of absolute knowledge, everything short of proof, is suspicion. Now, persons found committing, or attempting to commit, offences mentioned in Part II, of the Schedule to this Act, will, I hope, be placed on trial. There is no reason why they should not be; but persons reasonably suspected of committing or attempting to commit acts of this kind will, I hope, be detained. We ask power to detain them. We think that is a matter of public safety affecting the citizens and affecting the future of this Nation and State, and that it is necessary that the Executive should have power to detain persons reasonably suspected of having committed the offences set out in the Schedule to this Act. If it is stated that this Bill can be made a medium of tyranny I say it can; and I say it would be impossible to conceive and frame a Bill which, while amply safeguarding the interests of the State and its citizens, would yet be incapable of being used as a medium of tyranny. But, remember, you are giving these powers to an Executive responsible to the people's representatives here from day to day. It can only endure while it retains the confidence of the majority of the people's representatives. It is to such a body that you are entrusting these powers which are certainly far-reaching and certainly drastic, and which are only justified by the situation that exists in the country, a situation which we did not bring about, and a situation which we have done our best to deal with as it should be dealt with.

The alternative to the sub-section, as it reads, is that in fact there could be no deterrent detention in respect of any of the offences set out in Part 2 of the Schedule; that there could only be arrests and trials and imprisonment, and that for everything short of legal proof the suspect should go free. We cannot admit that. Take this crime which occurred yesterday in Wexford. I noticed that one paper refers to it as "a daring crime." I do not agree with that description. Two unarmed men were shot because they refused to deliver up certain property that they were asked to give up. Let us assume that the perpetrators of that cowardly crime get rid of their guns shortly after the outrage; that they are met on the road in or about the time of the occurrence of the outrage, and that they are of a type that would render them reasonably suspect of having committed the outrage. Now, if this sub-section were altered, as it is sought to be altered, men found in these circumstances must go free, because there is no legal proof, and everything, as I say, short of knowledge, everything-short of legal proof, is suspicion. You must, if you give these powers, give them with a certain confidence that they will be used with discretion, that they will be used in the interests of the citizens and of the State, and that the body to which you entrust them, and on which you confer them, is not out simply to take the last ounce out of every bit of authority and every bit of power that this Dáil confers upon it in order to persecute and oppress any section of the citizens. Deputies here know well that there are people who have been interned for a couple of months, and whom it is hoped shortly to be able to release, but who if put on trial, as we could have put them on trial, producing proof and producing evidence, would get many years' sentence of imprisonment. We have tried to preserve that spirit and that outlook in handling the whole situation, but when we introduce a Bill, which we consider is a necessary measure to deal with the middle period, a transition period from war or armed rebellion to normality, certain Deputies get up and suggest that it is necessary to be most niggardly and jealous, as if you were dealing with a body of men who might be expected, as a natural thing, to be oppressive, to be tyrannical and to be unjust. That is not the position, and if it is the position, and if the Dáil believes it is the position, then they ought certainly to change the Executive and select men with a different outlook. If you give these powers we are responsible here from day to day. If they are abused, specific cases can be raised, questions can be asked and matters may be raised on the adjournment, but do not say, in the critical condition of things here, and with all the possibilities there are of trouble in the future that a citizen may not be arrested and detained on anything short of legal proof, and that is what the amendment seeks to say.

The Minister is really pushing the "no confidence" thing too far. He says that, in this and all other cases, it is quite open for the Dáil to raise questions, and to debate individual or other cases. That is quite true. The fact that certain Deputies want to make certain changes in a section or a Sub-section of a Bill, does not necessarily mean that the only alternative to change that section is to sack the Executive Council. That is not the position at all or anything like the position. The Minister mentions the case that happened in Wexford yesterday. It was not anything like a "daring" thing at all. It was a most cowardly thing, and no Deputy in the Dáil will express any other opinion about it, because it was a most dastardly and cowardly thing. But at the same time, it is quite an apt illustration of the points in favour of this amendment, because, let us take for the sake of argument, that three or four persons were concerned in this attack on the unarmed Civic Guards. The Minister pictures these persons as getting rid of their guns, of walking along the road and of coming across military or detective officers and getting arrested on suspicion because they looked like chaps who had done this dirty job. That might happen, not only in the case of three or four persons, but it might happen in the case of a dozen persons, so that you can have, under the Section as it stands, a dozen or two dozen people in that district arrested on suspicion of doing a job which, so far as our information at the moment goes, was done by three or four. That is where the introduction of the element of mere suspicion is so hurtful, and why it ought to be taken out of this Section altogether. Now, suspicion, I suggest, is of two kinds; it is either original suspicion arising more or less spontaneously in the minds of certain officers, or else suspicion derived or acquired from information which perhaps would not be good enough to convict, but would perhaps, be strong enough to make an officer suspect that a certain person or certain people had done a certain thing. In both cases there is great room for error. I know a case in point. It happened to a certain Army officer who lives in the City of Dublin, whose house has been raided by officers of the State, because he was suspected of having arms, or at least his house was suspected of containing arms. The suspicion, of course, was a quite reasonable suspicion, and probably was derived from information that was a quite reasonable suspicion.

That has happened in more than one case. Descriptions have been given which were not at all accurate. It is only a trained observer who can give an accurate description of a person or a number of persons whom he has seen only perhaps for a few minutes and has never seen in his life before. On information given by people who, naturally, when certain events take place have been labouring under great excitement, certain other people who bear some kind of resemblance in appearance to the people described by a witness may be suspected of committing a deed which they did not do at all. It is stretching the whole thing too far to allow the element of suspicion to count for so very much. I do not want to go outside the Standing Orders, A Chinn Comhairle, but I think I will not be going outside the Standing Orders by drawing the attention of the Minister and of the Dáil to the bearing that other parts of the Section have on the amendment we are discussing and to the Sub-section which it is sought to amend. The Sub-section provides that it shall be lawful to detain in custody and so forth a person found committing or suspected of having committed certain offences. Sub-section (2) provides that even such suspect if not charged with any offence under the Section may still be detained and kept in custody by the Minister not for the offence of which it was in the first instance suspected he had been guilty of, but of the more general one of being a danger to the public safety. That, I submit, shows the grave danger of allowing detention on suspicion. I mentioned on yesterday evening a certain case. I want to go into it more particularly this evening, because it illustrates a danger of this kind. A certain man, arrested presumably on information supplied by the Intelligence Department, was detained for some time in one of the prisons. Eventually, after a considerable amount of trouble, he was released The truth of the thing, from beginning to end, was that the man instead of being an enemy of the State was a most devoted supporter of the State, but he was presumably suspected of having been concerned in the commission or assisting in the commission of certain offences against the State. That man when released sought, but sought in vain, from the Ministry an acknowledgment that the Ministry had made a mistake. The Ministry, of course, made no such acknowledgment, and will not make such acknowledgment. Ministers, as a rule, do not admit in these cases that they can make mistakes. All they say is: "You have been released and you ought to be content; we have nothing more to say in the matter." But that man, instead of being released, could, under this Section of the Bill, have been detained, although the suspicion on which he was originally arrested was undoubtedly ill-founded. Under other Sections of this Bill he could have been still detained and he could have been prevented and his friends could have been prevented from raising an awkward question by asking an acknowledgment of the mistake that had been made on the part of the Executive Council. That, I submit, shows the danger of allowing the element of suspicion to count for so very much.

I do not wish on this Section to go into arguments that would be more properly addressed to the general question of internment on suspicion under Section 3. But a specific point was made by the Minister to the effect that specific cases could be raised in the Dáil. This was by way of extenuating the admitted objection to arrest on suspicion. It would undoubtedly be a very great matter if there were any adequate power of redress by raising in the Dáil cases where the allegation could be made that so-and-so was improperly suspected and improperly arrested, but I conceive that such power as there is is very largely illusory for this reason, that the answer the Minister will make and will be entitled to make under this Bill is "Mr. So-and-so is arrested in the interests of the Public Safety." Full stop. He will decline, and he will be entitled to decline, any further information as to the justifications of the arrest of the person in question. A case in point arose the other day. A man in Rathmines was arrested on suspicion and interned. His solicitors took up the case with the military authorities and after several weeks and after what appeared to be very careful inquiry the authorities came to the conclusion that this man ought to be released, and they released him. A week or two after the release the same man was re-arrested. Incidentally he had on the occasion of his release signed a form of undertaking which is given to prisoners. He was re-arrested in spite of that and in spite of the fact that there had been an inquiry as to the property or impropriety of keeping him in prison without charge or trial. I put the case to the Minister for Defence and asked whether this man would now be released. The answer was precisely the answer we shall get in every case of this kind under the present Bill. The answer was that the Minister was advised by the detective authorities that it was not in the public interests to release this man.

Therefore raising the matter in the Dáil was an entirely illusory form of redress. It may give a man some satisfaction to see his name in print and know that his case had been raised, but it did not get him a bit nearer to release. Therefore you are, in dealing with this matter of suspicion, not in any way benefited by the fact that there is an Oireachtas sitting, because the Minister will be perfectly entitled, if this Bill goes through, to answer the challenge in respect of a particular individual by saying "we suspect him of being a person whom in the public interest we should intern." That is enough, and it is enough under this Bill. Perhaps I need not labour this point. I want to mention one other matter: The amendment deals with the words "whom such officer suspects of having committed an offence in the Second Schedule." It is not clear, on the wording of this Section, whether the officer's suspicion must necessarily refer to something which will have occurred after the passing of this Act or whether the officer is entitled to act under this Section in respect to a man whom he suspects of having committed some offence in the Second Schedule a month or two months or six months before. I hope it is not intended that this Section should be retrospective. If not, words should be inserted similar to the words standing in the name of Deputy Duggan in regard to another Section, to the effect that "This Section shall not apply to any offence committed before the passing of this Act." The Dáil will observe that if any other interpretation were put upon the Section it would be wholly unconstitutional, because we should be purporting to create offences which were not offences at the time they were committed. That would be a direct violation of the Constitution. I was going to say that you were dealing in this case with non-legal courts, but I am not sure if that is so under this Section. But it is important to bear in mind that, if the wording goes through as it stands, an officer may be entitled to arrest for an offence named in the Second Schedule which was not an offence at the time it was committed, say, three months ago I hope, therefore, if this Section does go through, words will be put in to say definitely that there is no intention that it shall be retrospective.

I want to stress the point made by Deputy Gavan Duffy regarding the illusory nature of the power which the Dáil has in raising questions here. The Minister has stressed a good deal the fact that the Executive is responsible to the representatives of the people, and that we meet from day to day and can raise questions respecting prisoners by question or by a motion for Adjournment, or by a question raised on the Adjournment. Therefore, he argues, the risk of injustice being done is very small. I would point out that the Dáil is not likely to be sitting, day by day, for six months—the length of time during which this Bill is at present designed to be in operation. The important point remains that there is nothing in this Bill that will give any more access to the prisoners in the future than in the past. They will not have any more direct access to members of the Dáil than they have had in the past. So that the plea of the Minister that the grievances or injustices that may be alleged by prisoners can be raised by their representatives in the Dáil fails, inasmuch as the prisoner has no right of access, and the members of the Dáil have no right of access to the prisoner.

Then, again, the Minister has asked that we shall have some faith in the bona fides and good intentions of Ministers. Apart from the fact that Ministers may vary in their composition—the present Ministry may not be all in their present offices three months hence—this is not a request that there should be faith in Ministers. This is a request that we should have faith in the bona fides and good sense and discrimination of every Army captain. The Army captain is to be empowered to arrest and detain for a week, and then the Minister may decide that the detention shall be continuous, without reason stated. The Minister will he the first to admit how impossible it is for him to deal with every individual case. He will take the word of an Army officer. The Army officer says: “This person is suspected of being concerned directly or indirectly in the commission of one or other of these offences.” The Minister takes the Army officer's return, and he has no time to consider the merits of the case, so many other things are demanding his attention. He simply has to remit the consideration of this particular case to the person who made the report in the first instance, or to some other subordinate officer, so that, in fact, what the Minister asks us to do is not merely to trust his bona fides, his generous consideration of the cases, his desire to be easy in this matter, but he does, in fact, ask us to trust to the discretion and the judgment and the bona fides of every Army Captain who is empowered to imprison on suspicion for one week any citizen.

Let me draw the Minister's attention to another consideration. We discussed and passed last night Section No. 1, which gave power to the Executive Minister to detain a person in respect of whom he had received a report from a responsible officer that the public safety is endangered by any such person being allowed to remain at liberty. He agreed to insert certain words there that the report must be accompanied by reasons. But now, what are we going to do? If we pass this as it stands, the effect of the change that was made last night is utterly lost, because all that has to be done now is to arrest a person on suspicion, and then the Minister may continue to detain him without any reason stated. No reasons are required. The officer may suspect or convey his suspicion after arrest to the Minister and say, "Patrick Murphy has been arrested, and is in our charge for one week. It is for you to say whether he shall be detained." The Minister has no option, unless he is going to override the original report of the officer, or to say that the officer had no right to arrest such a person, because he was not able to inquire into the merits or demerits of the arrest or detention during that week. There is no requirement in this Sub-section or in any other Sub-section that any reason shall be given. It is a question of the mere suspicion of a subordinate officer of the Army. There is no need to question the bona fides of Ministers in this case. There is every reason to guard against Captains in the Army, or any other officer of higher rank than Captain, suspecting without good grounds a citizen, detaining that citizen for a week, and then reporting to the Minister that he should continue to be detained. The Minister has too much to do to inquire closely into every individual case. All kinds of problems may have arisen which require his attention, and so the citizen has to be detained on the mere suspicion, without reasons stated, of the Army Captain.

I think the case for depriving any local officer of any such power is irrefutable. It is too easy to suspect. As a matter of fact one of the troubles in this country is the almost universal prevalence of suspicion. Everybody is suspect in the eyes of somebody else. There is very little faith in the honesty of purpose or the integrity of the neighbour, and that fault applies to Army Captains and other officers just as well as it does to civilians, and a suspicion engendered in the course of a conversation is but simply a thing to develop and to authorise an arrest upon. I would again ask the Minister to limit those powers and to trust to the ordinary law for the detention for that week. A policeman to-day, if he bona fide suspected any person of any crime, is entitled to arrest that person, bring him before a magistrate, and ask for a remand. In very few cases will the magistrate; who believes in the bona fides of the prosecutor, if the prosecutor is a policeman, refuse the remand; he may the second time, unless some evidence is forthcoming. For the purpose of original detention the mere suspicion of a soldier ought not to be enough.

Before you put the amendment I would like to remind the Dáil that it is quite possible for even higher and better trained officials than the officials defined in the Bill as responsible officers, to mislead and misinform, not consciously but unconsciously, Ministers and the Ministry. Some weeks ago I had occasion to raise certain questions dealing with the administration of a certain Department, and a Minister of whose bona fides no one in the Dáil has any doubt, gave certain answers. Those answers were quite and utterly incorrect. If one did not believe in the good faith of the Minister concerned, but considered that he knew his answer was untrue, one could only characterise what he said as a lie; but the answer did not come from him exactly. I feel quite sure that he answered simply on the information supplied him. That information was incorrect as everybody, including the Department concerned, now knows. That information was incorrect, and the particulars he supplied were lies put into his mouth by other people. I am now giving an illustration which shows that even the legal advisers of a Minister may err and misinform him. I refer to a certain case that occurred in England a few weeks ago when, contrary to all advice a Minister had got, the Courts there decided that certain action taken by the Executive was wrongful action and had to be reversed. It is when you come up against difficult and delicate points like those that one must ask the Dáil to take out of the hands of what are described as responsible officers, this very great power. Every Deputy here, and everybody outside, will agree with Deputy Johnson that one of the national sins in this country is suspicion. Everybody who remembers the situation that existed for a few months before the outbreak of civil war twelve months ago, knows that if there had not been on all sides a deep-rooted suspicion of persons and matters, things might not have turned out so badly as they did. This, which is one of our national weaknesses, is going to be put into one of our Statutes, and the Ministry is proposing to exploit one of the national weaknesses at a time like this. The amendment should be accepted and this power should not be put into the hands of any of the officers defined.

Many of the offences mentioned in the first paragraph of part 2 of the Schedule are offences in regard to which there would, undoubtedly, be very good reason and clear proof of the commission of the offence. That also applies to most of the other paragraphs, with the particular exception of paragraphs 9 and 12. Now, with regard to paragraph 12, aiding, abetting or assisting, are very doubtful words, and officers might be authorised to arrest people without any clear or legal proof of their connection with anything mentioned in the Schedule. The Minister for Home Affairs regrets the action of certain Deputies—their niggardly action, in regard to handing over powers to the military authorities to do things mentioned in this part of the Bill. I confess that, personally, I am very jealous and shall be very niggardly in handing over to the Army of this country, which is not stabilised and, in my opinion, not very free from political influences and party prejudices, the very heavy responsibilities that it is suggested are to be shouldered upon them. The Minister made reference to the powers that could be, and have been taken in other States to deal with a similar situation. I suggest that the army here is very different from the army of any other country that might be called upon to deal with a similar situation. If the army that serves this or any other successive Government is going to retain the confidence of all sections of the community, it must cut itself adrift from political influences and party prejudices. That, in my opinion, is not the position of the Army of this country. Some of us know that the circumstances which brought about the setting up of the Army may explain the situation here, but when one sees in the Press that Army officers are present at political meetings, one naturally has to become a little suspicious as to whether or not they are the Army of a party instead of the army of the people. That is why I would be very jealous and niggardly in regard to the handing over of any powers from the civil authority to the Army to deal with what is really a normal situation.

The Minister indicated that it was the intention, and I presume it can be carried out, to try all people who would be guilty of any crime mentioned in the Schedule. He said they were asking for the authority of this Dáil, that powers should be given to captains and other officers of a higher rank to arrest people on evidence short of legal proof. That would not apply in most cases except in Clause 12 regarding questions of "aiding, abetting, assisting in." Every Deputy in this Dáil, including many of the Deputies who sit behind the Ministers, are fully aware that hundreds of men have been arrested for spiteful reasons. The number of releases that have been referred to in this Dáil on many occasions is quite clear proof that many hundreds and thousands of men have been arrested without any genuine reason.

Mr. O'HIGGINS

Question.

The Minister appears to question that. It will be very interesting to know the actual facts of the hundreds of people who have been released. If there is clear proof that they have committed serious crimes, it is for the Minister to justify the reason for their release. I cited many cases—one of which I referred to here yesterday regarding the arrest of individuals in my own area. I was interested some short time ago with another member of this Dáil who sits behind the Minister with regard to a man in Co. Dublin who was arrested. When I probed fully into the matter I found that the individual arrested happened to be at a dance or social function where a typist belonging to a local military officer was present, and simply because that person refused to dance with her, or carry out the necessary social duties on this particular occasion, it is presumed that this particular typist used her influence with the military officer to get that man arrested.

Mr. O'HIGGINS

Might I intervene to say this, that if Deputy Davin knows of matters of that kind he ought to speak of them somewhere where he will not be protected by the privileges of this Dáil from the proper results of slander.

I deny absolutely it is a question of slander. I am making a fair statement, and can give the Minister the facts.

Mr. O'HIGGINS

It is slander.

I deny it is slander. You are a legal gentleman——

The Deputy must be aware what he is saying might be slander anywhere else.

I have no desire to do anything else but state the facts.

Mr. O'HIGGINS

Go out then and state them.

If the Deputy makes charges here against individuals named or unnamed he cannot be made responsible for the charges made. He is aware of that, of course. That is to say if here in this Dáil he charges an individual with something, the individual cannot take action against him. That is the Minister's contention. If the allegation were made outside there would be a legal remedy.

I would ask is it right for the Minister for Home Affairs to order me outside?

It certainly is not. I am only explaining so that there would be clarity in the matter. The contention of the Minister is that statements made here are privileged, and if similar statements were made outside there would be a legal remedy for the aggrieved party.

I was merely making use of this case to show reason why the powers asked should not be given. The question of slander did not enter into my mind, for I have not the slightest intention to slander anybody. It appears to me that anybody who gets up in this Dáil to put up any genuine argument in dealing with any Bill, or in supporting any amendment, is committing an offence by so doing. But I am conscious of the fact, and it is up to the Minister to deny it, that before any of the Bills are put up here they are discussed at meetings of the Party that backs the Government, and it is our duty as the Constitutional opposition to put up any reasonable amendments to the Bills introduced with the Party backing. I think that should be quite understood, and that was my contention, and it was my only intention in citing a particular case in support of this amendment.

It had not been my intention to have participated in the discussion on this amendment, except for the little incident that occurred a minute ago. It seemed to indicate the moral of the amendment so clearly that I thought it might be well to point it out. Deputy Davin rose and made a certain suggestion. The Minister for Home Affairs rose and asked him to make that in such a form that he could be called upon to prove it. In other words, Deputy Davin was reproved in this Dáil for having suspected, for having a suspicion. Now, if Deputy Davin was incorrect in taking advantage of the privilege of this Dáil in harbouring a suspicion how much more serious must it be that persons should have their liberties taken away merely through the same kind of suspicion?

And without any legal remedy.

I think the Minister for Home Affairs has proved the objections underlying this clause to which the amendment is moved.

Amendment put.
The Dáil divided: Tá, 12; Níl, 40.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Darghal Figes.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Éabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seaáin.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Donchadh Ó Guaire.
  • Seán Ó Maolruaidh.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Pádraig Mag Ualghirg.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Seám Mac Garaidh.
  • Pilib Mac Cosgair.
  • Mícheál de Stáineas.
  • Domhnall Mac Cárthaigh.
  • Sir Séamus Craig, Ridire, M.D.
  • Gearóid Mac Giobúin, K.C.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigin.
  • Próinsias Bulfin.
  • Séamus Ó Dóláin.
  • Aindriú Ó Láimhín.
  • Próinsias Mag Aonghusa.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Mirchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Seáamus de Burca.
Amendment declared lost.

I beg to move amendment No. 10, to delete sub-section (2) of Section 2. Under a previous Section the Minister is given almost unrestricted power to intern persons on suspicion, but in my opinion the most dangerous provision in the whole Bill is this Sub-section. The Sub-section deals with public safety, which is already extravagantly provided for under Section 1, Sub-section (c). Sub-section (2) gives power to a responsible officer to arrest certain persons mentioned in another part of the Bill. If that Sub-section were to become operative it would be possible, in my opinion, for a policeman or a police officer to arrest, and have interned on suspicion, anybody suspected of committing even minor offences. That is why I move the deletion of the Sub-section.

Mr. O'HIGGINS

Sub-section 2 applies only to arrests made under Section 2. That is to say, it would apply only to arrests made by a responsible officer where a person was found committing, or attempting to commit, any of the offences mentioned in Part 2 of the Schedule of this Bill, or was reasonably suspected of having committed these offences. These are not, as the Deputy says, minor offences. I do not think there is anyone who would contend that, in the existing circumstances in the country, any single one of the offences set out under separate heads in Part 2 of the Schedule are minor offences. These offences include robbery under arms, arson, unlawful injuring or destroying or attempting to injure or destroy property, illicit distillation, and so on. If you admit the principle of deterrent detention, if you admit the principle of detention without trial, then it is not reasonable to say that a person shall not be detained who is seriously suspected of having committed one or more of these offences, or a person who was arrested by a responsible officer and found committing, or attempting to commit, these offences.

What does he mean by deterrent detention? Whom is it he intends to deter? Is it the person who is arrested.

Mr. O'HIGGINS

For one, yes.

It is intended to deter the person who is interned from committing an offence. If a captain in the army suspects that I have aided a barman in selling illicit spirits in his employer's possession, of which he has control, then the officer of the army may arrest and detain, and the Minister may order my continued detention to deter me from aiding or abetting a barman from selling any illicit spirit that belonged to his employer. Under this Sub-section that is what could happen. One of the offences is selling or offering or having for sale any illicit distilled spirit—a very grievous offence no doubt. Another is the offence of illicit distillation or having possession or control of any illicitly distilled spirits.

Now it is confidently asserted, and I have no doubt it is true, that much of the illicit spirits sold in the country is sold in ordinary licensed premises. The man responsible is the licensed and he employs in one department of his shop a shop assistant, who is selling paraffin oil or butter or both at another counter, but the army officer suspects that this shop assistant knows something about the possession by his employer of illicit spirits, and that suspicion is sufficient ground for arrest. Then we are to empower the Minister to detain, for an unlimited period, that person who is suspected of this offence. The Minister would say, of course, that that is an extravagant illustration of what may happen. It is not at all extravagant. He is determined to put down the distillation of illicit spirits, and in the exercise of that determination he sends instructions throughout the country that they must keep a sharp lookout on persons who may be engaged in the production or sale of poteen, and then the powers that are given under this Act come to the notice of the Army captain and he suspects shop assistant A of knowing something about the sale of illicit spirits in his employer's shop and he orders the arrest of that shop assistant.

We are asked, now, to give power to the Minister to detain, for any rate, six months, assuming that the Act comes to an end in six months, for that offence without any requirement that the ground for suspicion shall be stated, or that there should be any trial or any charge at any time. The power to detain, interminably, or at least for six months is to be given to the Minister because an officer who is called a responsible officer, and who may be an Army Captain, suspects that a given person may be concealing information. That is altogether too drastic. The Minister pleads that once you have conceded that the Minister should be empowered to detain persons as a deterrent, then everything else should be conceded, and that there should be no restriction whatever, no supervision, no check on the Minister's activities. I admit there is a great deal in that contention. Once you have told the Minister that so far as the exercise of power over the individual citizen is concerned he is supreme; once you have told him that you give him these powers, then it is somewhat futile to suggest that there should be any checks or that your faith should not be absolute. Once you have given the Minister that power the actual deduction to draw is that the faith you put in him should be absolute faith, so that the ordinary checks of the ordinary law in ordinary countries are not necessary to be applied here. Though the logic is with the Minister I hope the practice will be more in accordance with hard facts. The hard facts—perhaps the Minister will be glad to know—are these: That even Ministers are human; they make mistakes, and they may be subject to prejudices; they may be affected by passion; they may be tired and weary, too weary and too tired to deal with details. The ordinary question of a civilian's liberty may be of importance to the individual, it may be of importance to the prisoner, but it is nothing compared with the cares and affairs of State. That is a very natural feeling for a Minister to have at certain times. That is the justification for limiting the faith that one has to place in a Minister even when one has conceded that there should be some power of detention. That faith is not absolute. We do think that Ministers are human and that they may make human mistakes. They may be subject to the ordinary limitations of ordinary humanity. For that reason it is desirable that there should be some check on the power of Ministers to detain citizens. I ask the Dáil to bear in mind that this is not detention for commission of offences, that it is not detention for stated belief that offences may have been committed by the prisoner. It is to give power to the Minister to detain a prisoner because another person suspected that that prisoner may have been indirectly associated with the commission of an offence by another person. That is a power that ought to be opposed. It ought not to be asked for, but having been asked for I hope the Dáil will indicate its unwillingness to hand over those powers over the liberties of the citizens to a Minister merely upon the suspicion of an Army officer.

There is a point which seems to have escaped attention in reference to the scope in point of time of the word "detention" in this and other Sections. Section 17 says, "This Act shall continue in force for six months after the passing thereof, and shall then expire." I have said before that I put no faith in those six months, because if this Bill is right now it will be equally right six months hence. But let me assume that I am quite wrong and that the Bill does expire six months hence. The prevailing notion that internment will expire at the same time as the Bill is entirely fallacious. If this Bill expires six months hence, the power to order internment will expire with the Bill, but, as I read the Bill, there is nothing whatsoever in it to declare that a person already interned shall be entitled to his release at the moment when the Bill expires. I think that it must be quite clear to Deputies examining this section, as well as others of a similar effect, that if this Bill goes through as now drawn the power to continue internment will continue after the Bill itself has expired. If that be so the prospect is a great deal more serious than it would have been had this actually been a six months' measure. I think the Dáil cannot get away from that conclusion, that the power to continue internment will remain when the Act is dead. The newspapers reported the other day a very unfortunate speech by a Minister. So far as I am aware that report has not yet been disavowed. The Minister is reported to have stated in Cork that, if necessary, prisoners would remain in prison until they rot. That was a sinister phrase coming from a responsible officer of the Executive, and I hope it does not represent the Ministerial mind. I should like to hear a disavowal of a phrase like that. Reading that in conjunction with the interpretation I have ventured to suggest to the Dáil as to the meaning of this Act in perpetuating internment, the phrase has a meaning. It does suggest that the intention of the Executive is to keep certain persons in prison for very much longer than the duration of the Bill. So far this matter has not been made clear from any Ministerial source, and I have failed to find in this Section, or elsewhere, anything which will effect the liberation of the prisoners interned six months hence, even on the assumption that this Bill then comes to an end.

Mr. O'HIGGINS

The Deputy is quite wrong. Legal power to detain persons without trial is given by the Bill and lasts only while the Bill lasts. When the lifetime of the Bill expires, if there is not in the country a condition of war or of armed revolt, which I trust there will not be, then all legal power to detain persons without trial goes with the Bill.

I am very glad to hear that. Can the Minister point to the Section which shows that? I have failed to find it.

I supported this Bill on the Second Reading and I intend to support a good deal of it in Committee. I do not care to set up my own opinion against that of Deputy Gavan Duffy or anybody else, but it certainly never occurred to me that after this Bill had run its course, in accordance with the last Section, for six months, that it would be open to make a return to any writ of habeas corpus for a prisoner who was kept in continued detention that he was being lawfully detained under a Bill the powers of which were spent. This Bill confers power, as I read it, upon a Minister while the Bill is in force to detain people in internment without trial and it does not in the technical sense suspend habeas corpus at all. Any detained prisoner can apply for a writ of habeas corpus, but it is a perfectly good answer to his application, I take it, that he is not to be let loose because he is detained under the powers of this Bill. When the powers of this Bill are spent, that is to say, when the 6 months for which it is in operation have come to an end, it would occur to me that such a return would be laughed out of Court at once. The prisoner under detention, who was put there under this Bill, applies to get out and the return is made that he is in lawful detention and is not entitled to be released or tried. How does that come about? If the answer is “The Public Safety (Emergency Powers) Bill” the answer to that is that the Bill is dead. That would seem to be a perfectly sufficient answer to any attempt of any Minister to retain any prisoner under the powers conferred by this Bill for a single hour after the Bill itself is spent.

We have all great respect for Deputy FitzGibbon's opinion on a legal point of this kind, but it is of sufficient importance to justify me in putting the reason for the contrary view, however wrong that view may be, and I hope it is wrong. The reason is that during the continuance of the Bill the Executive has power to order detention. That detention is quite indefinite in period. There is nothing in any Section, as far as I am aware, limiting the time of it, and with all respect to Deputy FitzGibbon I venture to think it will be quite competent for a Court to hold, notwithstanding the fact that the power to order internments has ceased because the Act has ceased that the Order, which was good when it was made for indefinite internment, continues to be a good Order until such time as the Executive choose to abolish it. I should like very much to see words introduced into the Bill to make it impossible for an interpretation of that kind to be put on the Bill, more particularly as we now have it from the Executive themselves that they have not that intention.

Mr. O'HIGGINS

Read Section 1 carefully.

The point raised by Deputy Gavan Duffy and answered by the Minister and by Deputy FitzGibbon is, I think, of very great importance. Even if Deputy Gavan Duffy is in error still there is sometimes a virtue in setting out an error in order to extract the truth. Like Deputy Gavan Duffy I have great respect for the opinion expressed by Deputy FitzGibbon, but I should like to have his opinion and a statement from the Minister on another point. I hope I am not going outside the scope of the discussion in order to get that point out. Certain provision is made in the Bill for certain sentences, hard labour and perhaps penal servitude, extending over a period of years. Are we to take it on the answers given that when a case is put to the Court that the Bill has expired, therefore there is no power to detain in deterrent detention a prisoner? Are we to take it also that the sentences of those not merely detained, but found guilty and sentenced under the Bill will automatically expire when the Bill expires? I do not think the Minister will say that such sentences will expire.

Mr. O'HIGGINS

May I explain that Section I provides that, subject to the provisions of this Act it shall be lawful for an Executive Minister to cause the arrest and to order the detention in custody of any person. That is detention without trial, what I have called the deterrent detention. A sentence passed by a Court after trial is a very different thing and will not cease to have effect when the Act expires.

That is as I suspected. But does the Minister not know that I could go a little beyond that, as he will have power, or any Executive Minister will have power, to go beyond it, because under the provisions of the Bill the Minister can order the period of detention to be as far as 18 months or 2 years.

Where is that in the Bill?

Line 2, Sub-section 2.

Where is the question of period mentioned in Sub-section 2?

There is nothing in the Bill forbidding him to do it. There is nothing in the Bill to confine the power of the Minister to detention for six months.

Except Clause 17.

Except the limited duration of the Act as defined in Section 17.

Mr. O'HIGGINS

And Section 1.

The whole thing shows what we have remarked on previous occasions, that Ministers' speeches do not always correspond with the provisions of the measure. There was a provision yesterday, and the Minister was good enough to amend and bring it into conformity with his speech. I think Deputy Gavan Duffy's point will have to be more closely examined and gone into before I can accept the assurances that have been given. The Minister, for instance, has been talking all along about reasonably suspected persons. The Bill does not make provision at all for reasonable suspicion. It provides merely for suspicion. Of course the Minister may claim that if we believe in the bona fides of the Ministry, and of the officers concerned, that therefore we must believe they will do things reasonably. It does not follow at all. Deputy Johnson has referred to certain offences covered by the Section and Sub-section and in particular to the offences mentioned in Sections 10 and 11 Now, detention as a military measure, or as a civil measure, for the preservation of the State, has always I think been associated with crime, or at least with offences of a political or semi-political nature. The Minister is extending the offences to include others which no one ordinarily regards as anything in the nature of political or semi-political offences. Even under the British regime, except for the period during which the First and Second Dáil were functioning, no one claimed that illicit distillation and poteen-making were political or semi-political offences. They were ordinary offences against the ordinary law. Although it was for private gain the Minister will remember that that particular manufacture was elevated, more or less, to the dignity of a political offence two or three years ago. I remember that in various parts of the country certain people engaged in the sale of spirits sold spirits which they called “Dáil Eireann.” And they would tell you with a great deal of pride that they had paid duty to the Dáil. If you are going to take this into the scope of the clause, I think the Minister might go a little further and add to the sale, exposing for sale, the consumption of this stuff, the purchase of the stuff; and then you will have everybody who desires——

The Deputy can move an amendment to insert that in the schedule.

The Dáil, I hope, is giving consideration to the arguments that have been used, and not merely taking the word of the Minister that everything is all right, provided you will take his interpretation of it. Some of us are not prepared to take his interpretation. That is why we want the thing amended. If he is prepared to amend it to please us, we will accept it. But I ask the Dáil not to accept the Minister's speeches in defence of a particular section as being a correct interpretation of it.

I think that this point that has been raised respecting the period of detention is very important. It requires very close consideration. It is suggested that the period must expire at the end of six months because of Section 17, but I submit that it is a not unfair interpretation of this Section to say that the Minister may order the detention in custody in any place in Saorstát Eireann of a person suspected under this Section for a definite period. If the Minister in his Order says that a suspected person must be detained or a period of two years in a certain establishment, he is entitled to do that under this Section. The question may arise as to whether he has power. Deputy FitzGibbon raises the question whether the Courts would not order his release under habeas corpus, but I note that in the latter Sections, when dealing with persons found guilty on indictment, the phrase is used, “punishment and imprisonment.” The implication is that the person is being punished for an offence committed, but the order for detention is not for an offence committed, but it is “in the interests of public safety.” And that Order may contain a period. There is nothing here which definitely and assuredly prevents that Order stating that the prisoner shall be detained for a specific period. It may be that the prisoner's friends have no interest in the matter; it may be that the prisoner's friends would be quite pleased that the prisoner shall be detained in some of the alleged comfortable establishments; it may even be that the prisoner would prefer to be detained, and he does not apply to the Courts. He is not going to seek habeas corpus.

Mr. O'HIGGINS

May I say, Sir, that I am quite prepared to insert——

Is this a point of explanation?

Mr. O'HIGGINS

Practically. I am quite prepared to insert on the Report Stage anything that would mark it as quite definite that there was no intention to detain without trial for any longer period than the period of the existence of the Bill.

Will the Minister look at Section 4, Sub-section 3 (b), and say whether his undertaking will apply to that too; because in that particular Section the Executive has power expressly given to it to order detention for such period as it thinks necessary in the public safety. That is page 4, line 5.

Mr. O'HIGGINS

Let us look first at Section 1—"It shall be lawful for an Executive Minister to cause the arrest and, subject to the provisions of this Act, to order the detention ..." This "subject to the provisions of the Act" would render the detention subject to, for instance, the provision of Article 17, dealing with the lifetime of the Bill, That expression, "subject to the provisions of this Act" could be inserted also in Section 2. What is the Section that the Deputy has referred to?

Page 4, line 5, Section 4, Sub-section 3 (b).

Mr. O'HIGGINS

"Subject to the provisions of this Bill" could be inserted there.

That is to say, the Minister does not mean that to apply to a period beyond the duration of the Act.

Mr. O'HIGGINS

And I have satisfied myself that it cannot.

The words referred to may be intended to refer to the six months that this Act shall continue in force and shall then expire. The mere insertion of these words, "subject to the provisions of this Act," will not ensure the limitation or the detention for that period.

Mr. O'HIGGINS

What do you suggest?

I understood the Minister to say that he was prepared to insert any words which would ensure the restriction of the period.

That is satisfactory. Between now and the next Reading the Minister will insert words which will prevent the possibility of any person being detained in custody after the period of this Act has expired.

Mr. O'HIGGINS

If I find on examition that it is necessary—I am myself positive that it is not necessary—I undertake to look further into the matter, and if I find there is even a shadow of doubt about the thing I will insert such words.

Of course the Dáil ought to be satisfied, not merely the Minister, and we would like to make it sure now that such powers might not, perchance, be embodied in the Bill. But, assuming that that provision is made clear and undoubted, that the period of detention is strictly limited, we still object to giving power to an Executive Minister to order the detention in custody, even for the period of the Act in any place in Saorstát Eireann of a person who has merely been arrested on the suspicion of an Army captain. We shall bear in mind that it is not intended to be punishment; it is intended to be a deterrent. It is not intended to deter the Army captain from his suspicion, but it is intended to deter the prisoner from allowing himself to be thought of as a suspicious person. I think no case has been made for the inclusion of the sub-section.

In view of the undertaking given by the Minister, would I be permitted to point out that one difficulty that arises is this, that in three different sections three different phrases are used in connection with detention?

On a point of order, we are discussing now an amendment that has nothing whatever to do with the period of detention. Surely it is not open now, upon an amendment, to delete Sub-section (2), to discuss a period of detention that may come up under two or three other sections which we have not yet reached. Especially is this so, having regard to the undertaking that has been given by the Minister and that has been rejected by the opponents of this section.

I submit, as a matter of order, that when a sub-section deals with detention, "detention" must infer a period, and consequently any reference to the period of detention is in order.

My point was that an answer was given with regard to the period of detention so far as this sub-section was concerned, and therefore if any question about the period of detention under any other sub-section arises, it should come on when that sub-section is reached.

I rose because the Minister had given an undertaking, in response to the objection I raised, and I desired to point out that the amendment it was proposed to make——

In this sub-section?

Yes. I wished to point out that that amendment ought to be one that would fit other sub-sections where the same matter of detention is dealt with in different language. And as the question of the amendment arises now——

The question of the amendment does not arise now. That is the essential point. I am surprised that Deputy Gavan Duffy does not realise that. In fact, I would like to place it on record that he does, in fact, realise it. It seems to me that I have given considerable liberty in this discussion to the question of the period of detention. Everybody must be aware of that. If Deputy Gavan Duffy believed, when this Bill was being read a second time, that the terms of the Bill gave power to any Executive Minister to intern people indefinitely, I think the Second Reading was the time that that should have been stated, because it is a very important principle. No mention was made of it. We took a long period yesterday to discuss Section 1 of this Bill, which gives power to detain. No mention was made of the period of detention —no mention whatever. Deputy Gavan Duffy raises it to-day on Sub-section (2) of Section 2——

On different wording.

And the Minister has given an undertaking that he will go very carefully into the matter as far as Sub-section (2) is concerned and as far as the other sub-sections are concerned. Now, we are discussing an amendment to delete Sub-section (2), and on that amendment I will not allow any further discussion of the question of the period of detention. If Deputy Gavan Duffy entertains fears that other sections of the Act may be interpreted so as to give power to the Executive to detain people indefinitely, when we come to these particular sections or sub-sections he will have ample opportunity for raising the question.

On a point of order, I appreciate the importance of your ruling, but I hope I am not misinterpreting it, and I hope I am not asked to interpret it as meaning that if, in the course of a discussion, it is found by any Deputy that issues are raised that were not foreseen on the Second Reading, that they cannot be raised on subsequent occasions.

No. This is a matter which really concerns the whole Bill, and it would have been very properly raised on Second Reading. If this very important matter and very important legal point escaped the attention of legal Deputies on Second Reading, they are, of course, entitled to raise it in the proper place.

Legal Deputies or others.

Or others. But they are only entitled to raise it in the proper place. In other words, if a Deputy forgets to raise something on the Second Reading—something which concerns the whole Bill—he cannot make three speeches on every motion made during Committee Stage on the point which he forgot on the Second Reading.

Do I understand from your ruling that it will be competent to refer to this question on a subsequent section dealing with detention in different words, and to refer, at the same time, to previous sub-sections where similar expressions occur with different wording. The point is the advantage of taking several sub-sections together in dealing with the same matter. I do not know how far one would be in order in doing so under your ruling.

The question of the period of detention is done with so far as this sub-section is concerned.

I support the amendment to delete the sub-section. I do so solely because it gives too much power to the Executive Minister. If this section goes through in its present form we will have wholesale arrests throughout the country. It sets out that it shall be lawful for the Executive Minister to order the detention in custody in any place in Saorstát Eireann of any person arrested under this section in respect of whom the Minister is of opinion that the public safety is endangered by such person being at liberty. The meaning of that is, if a person at the present moment is a bit talkative in the country, without any real meaning attaching to his words, and if his conversation is overheard by an Army captain or by a person who would give information against him, he could be arrested under this section. Again, if a person in the country has an enemy, although he may be one of the best supporters of the State, if that enemy invests 2d. in a stamp and sends information about that person, he can be arrested and detained anywhere in the Saorstát. I think that is going a bit too far. What is wrong at present is that we have too many prisoners. I want to see if there is the least hope that the Minister is really democratic and out for the welfare of the people, and that he is not putting forward clauses like these for the sole purpose of arresting every man and woman in the Saorstát who may think contrary to the way the Minister for Home Affairs would wish them to think. You will find in any part of the country that this Bill is the fireside talk. The Government are not gaining anything by allowing this sub-section to remain part of the Bill. They would gain a great deal by agreeing to the amendment to delete the sub-section.

The people have been terrorised long enough, and I think it is not necessary to bring in a law such as this for the pure purpose of trying to govern. If you want to govern properly do not make wholesale arrests and cast people into prison, and do not use words such as those I was sorry to see from the papers that the Minister used the other day in the country—that the people should stop in prison till they rot. I wonder, before the Saorstát came into being, what propaganda did the men who were then arrested and detained use when they were in prison. It may well be that we heard so much from the Ministerial Benches because they know so much about prison life themselves. In the attempt to force the enemy to evacuate this country people credited anything which came from prison. Ministers put up so much propaganda in their own time, they judge everybody by their own experience. I ask the Minister for Home Affairs to agree to this amendment. I do not want to specify the time when you shall release the prisoners. You have already agreed that in six months time this Bill will cease to be an Act, and the prisoners will be set free. I am very pleased to hear even that slight explanation from the Minister, but when we come to realise hard facts and look at the matter from a proper Christian point of view it is not fair to have prisoners in the country who, under this section, will be arrested and detained by military captains or by the Minister himself or his associates, and who will not be brought to trial. It specifies here that they will be brought to trial in one week, but I do not credit that. There are prisoners who were arrested a week of months, and who are still untried, and who have had no charge brought against them. The same thing will apply under this section. These prisoners will be arrested and put in prison for as many days as there are hours in the week and weeks in the year, and shall not be tried unless the Minister so chooses.

Therefore, we must take into account all the innocent persons arrested in the country who may have nothing to say against the Government, but who may be simply an enemy of a man who may be a friend of a military captain or who may associate with "G" men and detectives of the Free State and give information about innocent persons. If he is the father of a family he is taken from his family and put into prison, and the helpless little children are allowed to starve in the streets. The father will not be tried, although he is innocent. He is allowed to remain in prison, and the children will become an encumbrance on the State, and if any public body tries to help them the Minister will, I am sure, step in and not allow it to do so. That is why I support the amendment. I know what will happen. With these people detained under this section their families will suffer. Who are you making to suffer? The rising generations, the youth that is going to build up the Saorstát. I therefore support the amendment to delete Sub-section (2).

Amendment put.
The Dáil divided:—Tá, 12; Níl, 41.

  • Tom s de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlach.
  • Séamus Éabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Muirgheasa.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Donchadh Ó Guaire.
  • Gearóid Ó Suileabháin.
  • Seán Ó Maolruaidh.
  • Micheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Cearailt.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam M g Aonghusa.
  • Pádraig Ó hÓgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostoir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Aindriú Ó Láimhín.
  • Proinsias Mag Aonghusa.
  • Éamon Ó Dugáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
Amendment declared lost.

I beg to move in Sub-section (2), line 13, after the word "Minister," to insert the words "certifies in writing that for stated reasons he." The object of this amendment is to protect the person arrested from being detained for a lengthy period without any reason being given. I think the Executive Minister should certify and state clearly why the person arrested is considered dangerous. If this amendment is not accepted it would be possible to arrest and detain people who hold strong political opinions against the policy of the present Government. That is a thing we should have to see to. I contend, if the responsible officer in the district merely suspects citizens of having done any of the offences in Part II. of the Schedule of this Act, they can be arrested and detained, and thus be prevented from exercising the rights and liberties which they are entitled to exercise according to the Articles of the Constitution. If this goes through, I think the constitution is a dead letter as far as the rights and liberties of a citizen are concerned.

Mr. O'HIGGINS

I am not accepting the amendment. It is not proposed to serve a charge on prisoners whom it is proposed to intern, and it is not proposed to bring them to trial. Later on, when we come to Section 4, dealing with the Appeal Councils, I will state my intention to accept or insert an amendment providing that internees seeking to appeal before the Appeal Council shall be informed with respect to all the offences set out in the Schedule. The principle of the Bill is to provide for internment without trial, and Deputies know that they owe the peace and security in which they are now living to the fact that many people have been arrested against whom it would be impossible to adduce legal proof, or in regard to whom it would be impossible to formulate a specific charge. If Deputies think that we do not sufficiently understand what the public safety means and what steps public safety demands, then they ought to search for someone who does understand these things. This amendment, if passed, would involve the serving on each person whom it was proposed to intern of a specific charge—to state reasons, or, as the Deputy put it, to state clearly and specifically the reasons for which it is proposed to intern. We do not propose to state any other reasons except that, in our opinion, the public safety demands that step. If the internee states his intention to appear before the Appeal Council he will receive information as to the offences in the Schedule in respect of which he has been arrested and detained on suspicion.

I think the Minister has misunderstood the purport of this amendment. It does not say that the reasons shall be submitted to the prisoner. It does not deal with those cases that the Minister has referred to. It asks that there shall be done in this case by the Minister what he has agreed shall be done under Paragraph (c) of Section 1, in which he agreed that where a responsible officer, or the military authorities, send a report to the Minister that the public safety shall be endangered by a particular person being allowed to remain at liberty, that reasons should be stated by that responsible officer.

Mr. O'HIGGINS

To whom?

To the Minister. The amendment requests that where the Minister has decided to keep in internment a prisoner who has already been arrested, that he should set out, write down, put on record somewhere, his reasons for deciding that that person is to be kept in custody.

An Leas-Cheann Comhairle took the Chair at this stage.

The amendment does not provide for the submission of these reasons to the prisoner at the time when the order is made. The amendment asks that the Minister shall record in writing the reasons which decided that the public safety would be endangered by such person being set at liberty. Then, if at a later period the prisoner decides to take advantage of the provisions of the Bill setting up the Appeal Councils, such reasons may be referred to by the Appeals Council, but they will have been stated at the time the Minister made his decision. I think the amendment is in thorough accord with the promise that the Minister made with respect to a previous section. In the one case a responsible officer, or the military authorities, were to give their reasons to the Minister. In this case we ask that the Minister should put on record on his own books his reasons, not necessarily for presentation to the prisoner at all, so that they will be clear for the Appeal Councils or for his own satisfaction, even for his own future reference. I think there is nothing objectionable even from the Minister's own point of view, in the suggestion.

Mr. O'HIGGINS

I misunderstood the amendment. On the understanding that this will be a mere confidential Departmental record available only for the Appeals Council if and when the detained person thought fit to appear before it, and on the definite understanding that it is not a document to be served on the prisoner when he is arrested, I would accept the amendment.

I think the Minister will see that the phrasing of the amendment does not imply any presentation of these reasons to the prisoner.

Amendment agreed to.

I beg leave to move Amendment No. 12:—"In Sub-section (3), to delete the words ‘or with any other offence or offences.'" This Bill enables the Minister, having arrested a man on mere suspicion, to keep him in custody until he is able to find an offence to charge him with other than the one on which he was arrested on suspicion. The ordinary rule is that an arrest is not made, or the custody continued, unless there is evidence pointing to the person's guilt. This power encourages the framing of charges, such as the planting of a revolver, etc., and I move the amendment.

Mr. O'HIGGINS

This amendment is unsound. The effect of it would be that a person arrested under Section 2 could not be charged with any offences other than those mentioned in the Schedule. The Deputy must understand that the word "offence" there means, and means only, an offence in law, and to say that a person who had been arrested by an officer could not be charged with any offence except the offences set out in the Schedule seems to be raising certain citizens above the law.

Let us assume that a person is arrested by an officer and he is detained for a week, and in the course of that week inquiries are made with a view to ascertaining whether he had, in fact, committed or had been in any way concerned in committing any of the offences set out in the Schedule, and it is found to satisfaction that he was not, but in the course of these inquiries the fact comes to light that in other respects he had broken the law, why, of course, it should be open to the proper authorities to charge him with such offences. The Deputy's amendment amounts to this, that it would not be so, and that they ought not to be in a position to charge him with any offences except some one or other of the offences in the Schedule of this Bill. That is not sound.

I should have supported the last amendment the Minister has accepted. I do not think this amendment, if accepted, would really be of assistance to the prisoner whom Deputy O'Callaghan desires to protect. Suppose that a prisoner so arrested, or in preventive detention, was at the end of the week to be discharged, but during that period of detention it had been found out that he had been guilty of one of the ordinary crimes of larceny or assault for which people are liable to be prosecuted, the only result of accepting this amendment would be that he would be formally discharged and rearrested, as often happens in particular cases where a person has been tried and acquitted by a jury, and has been then re-arrested on a charge of assault with intent to injure, and things of that sort, and charged at once. It is desirable to get rid of mere formal procedure like that. It seems to me the only result of accepting this amendment would be to continue that method of formal discharge and re-arrest, which does no good to anybody, and brings the administration of the criminal law more or less into disrepute. The only effect of the amendment would be that if in the course of detention evidence of a crime is found other than semi-military and revolutionary crimes specified in this Schedule, it shall be unlawful to charge him with any such crime. I do not think the amendment would do anything more for a prisoner who could be charged under the section as it stands than to allow him to be released momentarily and rearrested.

As a victim of the procedure mentioned by Deputy FitzGibbon I agree with him that there would not be much to be gained by a prisoner if this amendment were adopted, and I suggest that Deputy O'Callaghan should withdraw it. I remember on a particular occasion being arrested for a particular thing, and the British authorities, finding that they were not able to bring me to trial for that particular thing, simply left me outside the jail, where a party of police were waiting to take me inside again, and another charge was brought forward. It would have been more pleasing to me if I had been charged with the offence while in custody than going outside and finding that they were waiting to dump me in again.

Having heard the various arguments, I withdraw the amendment.

Amendment by leave withdrawn.
Motion made and question put: "That Section 2 as amended stand part of the Bill."
The Dáil divided:—Tá, 36; Níl, 11.

  • Liam T. Mac Cosgair.
  • Gearóid Ó Suileabháin.
  • Seán Ó Maolruaidh.
  • Micheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Pádraig Mag Ualghairg.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Criostoir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Aindriú Ó Láimhin.
  • Proinsias Mag Aonghusa.
  • Éamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Seamus Ó Cruadhlaoich.

Níl

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.
Motion declared carried.
SECTION 3.
(1) Every person who is now detained in the custody of or held in internment by the military authorities and has not before the passing of this Act been sentenced to a term of imprisonment or penal servitude by any tribunal established by the military authorities, may be detained in custody under this Act
(a) by the military authorities if in the opinion of those authorities his detention is a matter of military necessity in the present emergency, or
(b) under an order of an Executive Minister if in the opinion of such Minister the public safety would be endangered by such person being set at liberty.
(2) No person detained in custody under an order made by an Executive Minister under this section shall be set at liberty without the consent of the Minister for Defence.
(3) Every person who at the date of the passing of this Act is serving a sentence of imprisonment or penal servitude imposed on him by a tribunal established by the military authorities shall, whether he is or is not a person ordinarily subject to military law, continue to serve such sentence so long as it is unexpired.

I beg to move the following amendment:—

In Sub-Section (1) (a), lines 28 and 29, to delete the words "in the opinion of those authorities," and to substitute therefor the words "those authorities certify in writing that for stated reasons they are of opinion that."

I do not think there is any necessity to say much in connection with this amendment. I expect the Minister will accept it. The same argument applies in the case of amendment Number 11, which the Minister has already agreed to.

Mr. O'HIGGINS

For the same reasons as those which I stated in connection with the previous amendment, I propose to accept this amendment, and on the same condition. I do not think there is anything in the amendment which would imply that this certificate or written statement should be served on a prisoner. We do not propose to do that, but if what is intended is to secure that there shall be confidential departmental records, I think it is reasonable.

Amendment agreed to.

I beg to move the following amendment:—

In Sub-Section (1) (b), lines 31 and 32, to delete the words "in the opinion of such Minister," and to substitute therefor the words "such Minister certifies in writing that for stated reasons he is of opinion that."

I think it is similar to the last two that were accepted.

Mr. O'HIGGINS

I accept the amendment.

Amendment agreed to.

I beg to move: "To delete Sub-section (2)." According to this sub-section, the civil authorities, in my opinion, are subordinate to the military authorities, and I do not think that is a desirable thing. Also, according to the sub-section, while it gives the Executive Minister power to keep a prisoner in custody, it does not give him power to release him; that power is vested in the Minister for Defence. For that reason I move the deletion of the sub-section.

Mr. O'HIGGINS

The Deputy should note that Section 3 deals specifically with the people who are now in the custody of the military authorities; it deals with people at present in military custody. It is natural that the Minister for Defence, who has the primary responsibility for the military situation in the country, should be consulted before prisoners who were arrested on grounds of military necessity are released. I am not particularly set upon keeping in that section if Deputies are keen on getting it out, because, as a matter of practice, prisoners will not be released without consultation with the Minister for Defence. Whether we say it here in the Bill or not, it does not make very much difference. If the Deputy insists, we are prepared to give way on that and to take out the sub-section.

I think that will be all covered in the definition the Minister promised to insert in the Act of "military authorities." Under the sub-section we have just passed persons may be detained in custody under this Act by the military authorities if in their opinion they ought to be so kept. I can scarcely conceive any definition of the words "military authorities" that would not necessarily include the Minister for Defence. I think the power of detention is not really lessened by the acceptance of this amendment, and it prevents the appearance of setting up one Minister to overrule the order made by another.

I think the Minister, in view of his own and Deputy FitzGibbon's arguments, should accept the amendment and delete the paragraph. There is an implication in the paragraph as it stands that the civil Minister is really subordinate to the military Minister. That is a position of affairs I do not think the Dáil would consider desirable. It is a kind of thing we all want to get away from. The whole basis of government by Executive Council, or anything like that, is rather in the direction that there should be unity, and this paragraph suggests that there could be possible disunity and subordination of the civil to the military side of the Executive Council. I hope the Minister accepts the amendment.

Mr. O'HIGGINS

The amendment is accepted.

Amendment agreed to.

I desire to move the following amendment:—

In Sub-section (3), line 41, to add at the end the words "or until an Appeal Council, upon review of his case, in manner provided by this Act, reduces or remits the sentence imposed by the tribunal."

As Deputies are all aware, the next section provides for the setting up of Appeal Councils. I do not propose to discuss these things just now until I come to that section. In passing I wish to say we do not think they are quite satisfactory as provided for in the Bill. The section as it stands deals with persons or prisoners who have already been dealt with and sentenced by military tribunals. Sentences that are imposed upon them are now subject to review. The intention of my amendment is to give to those prisoners a chance of having their cases, if not exactly re-heard, at least reviewed. Now, we may have very different opinions about the conduct and the quality of the military; but, that apart, we all know that these tribunals— military committees as they were called here some months ago—have been sitting in secret. They have operated in a period of great strain and of great stress, in a period when they themselves and the other military with whom they were associated were subject daily and nightly to armed attacks by the Irregulars. It will be more than human, and even Ministers will not claim that, taking them on the whole, the military were more than human. It would be more than human to expect that in all cases of prisoners that came before them they would be uninfluenced by the circumstances of the time. I do not want to make an attack on their integrity or anything like that, but it would be too much to expect that they would be uninfluenced in some cases, perhaps, by the circumstances of the prisoners who came before them. They would be, perhaps, influenced by the previous knowledge of the character and activities of the prisoners. In all these circumstances it would be too much to expect, I think, that they would give anything approaching the consideration or the discriminating judgment that any court of a legal or lawyer kind or even an Appeal Court such as seems to be contemplated in this Bill under another section, would give. I suggest that the prisoners who are being sentenced by these Courts ought to have some opportunity of having their cases reviewed. They may be, and some of them undoubtedly are, amongst the worst criminals that we have ever been cursed with in this country. In every country, this country included, apart from crimes arising out of such a condition of affairs such as has prevailed here for the last fifteen months, the very worst sort of crimes and of criminals accused of the most heinous offences which our imagination can conceive, have an opportunity in ordinary law of appealing from the decision of the lower Courts that have power to convict and sentence them, to higher or other Courts. It would not be too much to ask that the opportunities that have been given, and are still in many cases given, under the ordinary law, to ordinary criminals, no matter how bad or black their records, should be given to these prisoners, no matter how bad their records. None of us are infallible. None of the military courts that have been set up are infallible. Ministers do not even claim that their various Intelligence Sections have been infallible, because they admit, and it is likely enough, that there are a number of prisoners detained at present who perhaps ought not to have been detained. It is not unlikely that there are prisoners at present undergoing sentences who ought not to be under sentence, and whose sentences ought not to be of such a lengthly duration as those originally imposed. There has not been, outside some sections of the Dáil and the Executive Council, in the country as a whole a great deal of confidence in secret tribunals and secret courts. There has been a good deal of distrust, and there has always very properly been a good deal of distrust of secret courts. Now we have an opportunity of rather remedying that state of affairs. Therefore I would ask the Dáil to adopt this amendment, again as one of those things, little enough in its way, that would help us to some extent— to bring us back, if you like, by easy stages—to the ordinary and normal course of law. I think that the Executive Council would gain in public confidence if it took this step and decided that there should be some review of these cases. I suggest that, and I propose the amendment in order to better the Bill and to take out of it one of its bad features. On principle, I object to the Bill all through. But I would be prepared to endeavour to improve it, and I think it would be a distinct improvement, and I ask the Dáil to accept it.

Mr. O'HIGGINS

I agree with much of what Deputy O'Shannon has said with regard to the advisability of reviewing the cases that have been heard and the sentences that have been passed by the Military Courts. In point of fact, we do propose to have such a review. We do propose to establish such a review in the future, but not under this Bill, and not by these Appeal Councils established under this Bill. Before the elections an Indemnity Bill will be introduced. It is customary in passing out from a condition of war to pass a Bill Indemnifying Military Officers and other such persons who, in the course of operations, and who, in the course of the conduct of the war, have technically infringed the ordinary normal law of the country.

Now, when we bring that Bill to the Dáil we will provide, within its terms, for Civil machinery to pass in review the cases that have been dealt with by the military courts, with powers to reduce the sentences, and so on, if they think it advisable to reduce the sentences; but we do not propose to establish such machinery under this Bill; and to give the Appeal Councils which it is proposed to set up under this Bill any jurisdiction in that matter, would be to entirely alter their character. They will not be Courts or Tribunals in the ordinary acceptance of these words. They will be Departmental Committees to advise the Minister. Their proceedings will not be public, and will not partake, in any way, of the nature of a trial. They will be small Committees, sitting privately, to hear from any prisoner, who wishes to state it, the cause why he should not be further detained. They will have in their possession a summary, at any rate, of the reasons which convinced the Executive that it was advisable to detain the particular prisoner, and they will hear from that prisoner his side of the case, and why he considers he ought not to have been suspected of committing any of the offences, or of assisting in committing any of the offences set out in the Schedule. But it cannot be too strongly stressed that the proposal is not to establish Courts for the trial of those persons, and still less to establish Courts for the trial of Executive Ministers. These Appeal Councils will be confidential advisory departmental committees. I do go a long way with Deputy O'Shannon in his remarks as to the advisability of passing in review sentences passed by military courts in times of stress and heat, and I give that undertaking that in later legislation which we will bring before this Dáil there will be machinery to meet that end.

I have no enthusiasm for this amendment, because this particular section is one which I do not think any change of words could make acceptable, and because I entertain the hope that the Executive themselves, before this Bill is done with, will come round to the view that this particular section ought not to be pressed in the interests of their good name, as well as in the interests of the repute of the Dáil, and I will tell the House why. The Minister told us, upon another amendment, that the Executive entertained no vindictive feelings. Obviously the Executive should entertain no vindictive feelings, but it is impossible for a section of this kind to wear any other aspect than an aspect of being vindictive. I think it is absolutely unprecedented to prescribe by law that a prisoner shall not get out until his sentence is completed. If there is a precedent for it I should like to hear it. It ought to be unprecedented, because circumstances sometimes come to light that alter the facts as presented originally to the tribunal that tried the case, and it is wrong for the Dáil, and wrong for the Executive, to debar itself from dealing again, as it ought to deal, with a case, the aspect of which may be completely changed later on. How much more is that the case when we are dealing with people tried in secret by military and non-judicial courts. I remember, a short while ago, asking the Minister for Defence for a return of persons convicted by Military Courts within a certain period in the city and county of Dublin, and he said it was not in the public interest to answer that question; and the fact is that the Dáil has no information as to how many persons were convicted by military courts nor as to the offence, nor, indeed, as to the manner of their trial.

The Minister said just now that these sentences were to be reviewed. If that be the settled intention of the Executive, is there anything to be gained from the Ministerial point of view in stating in an Act of Parliament that you are going to keep in prison people tried by military Courts until they have completed their sentence. Is there anything to be gained from the Executive point of view by keeping this section in the Bill at all? All these trials, we are told, are to be reviewed under another Act of Parliament, and therefore this section does not mean what it says. This section will be repealed, and in respect to a matter which is going to be repealed by subsequent legislation we are asked to pass this unprecedented section—a section which is bound to have the air of being vindictive, and a section which incidentally, I suggest, is utterly unconstitutional, because its effect is to validate trials which were not constitutional, and of making into crimes offences which were not technically crimes when committed, such as having a pistol without a permit. We do not know exactly what people were sentenced for, but there must be many sentences for offences which, when the people were sentenced by the military courts for them, were not crimes at all in the ordinary sense of the word. This Dáil is not permitted to legislate retrospectively to make things crimes which were not crimes at the time they were committed. But the effect of this section is to validate everything done by the military Courts, and that at a time when the Minister acknowledges that some review is necessary, and undertakes that he will make such review. I hope, before this Bill goes further, this particular section, which is a very serious blot upon it from the point of view even of the most zealous Free Stater, will be reconsidered. It effects nothing desirable. It effects nothing that will be of much use to the Ministry if they are going to bring in a Bill to review sentences, and it is putting upon the Statute Book a thing which should not be put on any Statute Book, that sentences—in these cases not imposed by legal tribunals upon persons who committed offences—cannot hereafter be reduced. That is a wrong principle.

Even in English law there is always the prerogative of pardon, and it is right the Executive should retain power to release prisoners when it is proper to release them, even after they are sentenced with every proper formality according to the ordinary law. When the Minister himself tells us that he is not going to ask the Dáil or the country to accept the military sentences as being perfect, without review, passed as they were in a time of war and in a time of trouble, surely it is not necessary, and certainly not desirable, to insert in this Bill a section which effects nothing worth effecting, and which puts into our legislation a very unfortunate blot that one would be sorry to see established in Irish law at this very early stage of the Free State's proceedings. In addition, this section indirectly, not directly, purports to validate what has been done by military courts before anybody outside of the Executive has had an opportunity of knowing what these Courts did. The Dáil in the dark, and necessarily in the dark, will be asked to say that sentences passed in very troubled times by these military Courts are here and now going to be ratified and must be completed, although the Minister himself says "We do not mean that"; but that is what the Dáil will be asked. I hope, on reconsideration, that this matter will not be forced into the Bill.

The Deputy has raised several important points which, I think, will require considerable discussion, but I do not propose to discuss all of them, or in fact many of them, on this particular amendment. I should rather like to confine myself strictly to the amendments, though I do not think that the discussion has been out of order, or anything like that. The discussion, I am glad to say, has brought out a statement from the Minister promising an Indemnity Bill. I think that that will give a certain amount of satisfaction to the country. At the same time, I do not think he has made the case that I should like to have seen put up, or that even his promise of an Indemnity Bill meets that case. I put it to him that the section, or the sub-section, as it stands practically legalises the sentences that have already been enforced. Now, we have not had much experience of Indemnity Acts in Ireland, and I am doubtful whether an Indemnity Act can cover the case of sentences. It could, and usually does, cover cases of persons and actions. I do not know whether it is intended that the Indemnity Act should legalise things which, perhaps, at the time of their doing were not strictly legal, but its intention and its provisions will, of course, protect the officers of the State, who had to undertake certain actions, against the ordinary legal penalties and risks that would commonly follow under the ordinary law. I think I should want to see and examine closely the provisions of the Indemnity Bill before they would satisfy me. At the same time, the Minister's promise of an Indemnity Bill is welcome. There is another point, and that is the question of time. The Minister says that it is intended to introduce the Indemnity Bill before the elections, and presumably to have it carried and put into effect before the elections. The Minister, perhaps, knows, but none of the rest of us know, when that may be. We have no idea when to expect the Bill. It may be within the next five months, but we have no idea when this particular Bill will be introduced.

Mr. O'HIGGINS

It must be before the 5th of January of next year.

That is what I was saying, that it is likely to be introduced within the next five months. This Bill before us now is coming into operation and into effect as soon as the Ministry can get it through the two Chambers of the Oireachtas. I think it is just as urgent a matter that this review, which the Minister in principle has agreed to, should be made as that any Section of this Act should be carried into effect. You want this Act immediately. I suggest that if there are to be reviews, that the review of these sentences are urgent. I said, when I was speaking before, that the amendment had some relation to the Appeal Councils mentioned elsewhere in the Act. The Minister has thrown some light on the character, if not exactly on the constitution of these Appeal Councils. It would undoubtedly be more satisfactory if the regular Civil Courts had power to deal with these review cases. I regretted to hear the Minister say that the Appeal Councils will be merely Departmental, confidential and advisory committees. I should prefer if their scope was much wider. That, however, is a matter for argument when the Section dealing with them comes on for discussion. I would put it to the Minister that there is a doubt as to whether the Indemnity Bill can really declare legal these sentences, or vary them, or anything like that. I would ask the Minister, and also the Dáil, not to legalise these sentences by letting the Sub-Section stand as it is. I wish he could find a way to extend the scope and powers of the Appeal Councils so that they could really do the work now, or as soon as may be convenient before the elections. I submit to the Dáil that the question of time in this matter is of great importance, at least of very considerable importance for the reasons I have mentioned, because the revision of these sentences, if it came now, would show a desire of a return to normal legal processes, and would have a big effect on the country and on the people in the country, even on some of the opponents of this State. It would show that while we are not exactly out of the wood yet, that there is a preparedness to meet the coming out of the wood. Therefore, I submit that the question of time is important, and that the sooner this is done the better. I would like if that could be provided for in this Bill, and not wait until we get in our hands this other Bill. The promise that an Indemnity Bill is coming is very important indeed.

I would suggest that the offer of the Minister might be accepted as sufficient ground for withdrawing this amendment. An Indemnity Bill properly speaking, of course, has nothing whatever to do with sentences that have been passed. It is to indemnify people who have acted in a manner which was technically illegal at the time. But I understood the Minister to say that in that Indemnity Bill, besides indemnifying those servants of the State who may have been guilty of technical illegalities, he proposes to set up a tribunal— that is a matter quite independent of the Indemnity Bill—to revise sentences that have been passed by military Courts. I was very glad indeed to hear that assurance. The Appeal Councils are dealing with a wholly different matter, and it is, in my humble judgment, very important that they should be able to get on with their real work, which is releasing untried prisoners, rather than have their time taken up by trying over again cases that have already been tried. If you are going to retry cases, with all the witnesses, and go into the whole matter over again, that is necessarily a long job. If the Appeal Councils have their time occupied with retrying already convicted prisoners, they will not be able to get to what seems to me their real duty—that is, releasing prisoners untried and under detention, against whom there may not possibly be sufficient ground for the detention that has been imposed upon them. Therefore, I think that, in the interests of the persons who are really most affected of all—the innocent people who would be let out, we will assume, by the Appeal Councils—the Appeal Councils should not be burdened with the task of retrying men who have been already convicted. It seems to me that the definite undertaking given by the Minister that a proper legal tribunal will be set up to investigate sentences that have been imposed ought to be sufficient, and that we ought to let these Appeal Councils go free to deal with the untried prisoners who have a right under this Bill to appeal to them for immediate release.

The Dáil appreciates the promise that the Minister has made regarding the setting up of a tribunal whose duties will be to review the sentences that have been imposed by military tribunals. I think we all realise the force of the argument of Deputy FitzGibbon that the time and attention of the proposed Appeal Councils should be devoted to the consideration of the cases of untried prisoners; but there is equal force, I think, in the contention that the cases of the prisoners sentenced by military tribunals should have early reconsideration and early review. The purpose of the amendment is to endeavour to ensure that there should be review of those sentences at an early date. I think it will be generally recognised that amongst those who have been tried and sentenced are a number—perhaps many—who have on what they considered to have been conscientious grounds—political consciences have been at work—refused to plead. The evidence appeared to be strongly against them, and they were sentenced. It is known to Deputies that, though many of the prisoners had the right under the Regulations to call for legal defence, they did not utilise that right. They did not realise they had such a right, and failed to take advantage of the legal defence which was available. There is the further fact that there was no publicity, and there may have been injustices committed. There may have been unreasonable sentences imposed of which the Dáil or the public knows nothing. We would urge that within this Bill such a tribunal as the Minister foreshadows, as intended to be embodied in an Indemnity Bill, might well be set up—perhaps not the Appeal Council, but some other. I suggest that even the Appeal Councils might quite reasonably be asked to look over the cases of prisoners who have been sentenced—I do not think there are very many—not to retry, but to act somewhat as a Grand Jury might, and at least to review, and see if there is, on the face of it, a case for immediate revision. If the Minister is not prepared to establish within this Bill a tribunal to retry or review the cases that have been before the military Courts, it may not be too much to ask that the Appeal Councils might be empowered to go over the evidence that has already been written down in regard to specific cases, and see whether, in their opinion, any such cases should be immediately retried. That, I think, would reasonably come within the scope of the suggested Appeal Councils. This may be considered going a little too fast, but it does follow upon the amendment and the discussion. I would ask the Minister if he can see his way to meet the demand submitted in the amendment in such a way as to ensure that there shall be at an early date some opportunity for a review of the sentences, at least in these cases which might obviously require speedy retrial.

Amendment put.
The Dáil divided:—Tá, 11; Níl, 42.

  • Tomás de Nogla.
  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Éabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Donchadh Ó Guaire.
  • Gearóid Ó Suileabháin.
  • Seán Ó Maoluraidh.
  • Micheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnách.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Aindriú Ó Láimhín.
  • Proinsias Mag Aonghusa.
  • Éamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
Amendment declared lost.

I take it that Section 3 is now before the Dáil, and perhaps I shall not be accused of obstruction if I say one word——

A motion has to be moved that the Section, as amended, stand part of the Bill.

Mr. O'HIGGINS

I move: "That the Section, as amended, stand part of the Bill." In doing so I want to state, with regard to amendments 13 and 14, which I accepted, that it will be necessary for me at a future stage in some way to alter or modify the words as they stand. I am informed that where it is set out in a Bill that reasons must be stated that it is then open to the Court—in fact it is the duty of the Court if called upon—to examine those reasons and see if they are good and sufficient. Now we could not create a situation in which the Courts could be asked to survey the reasons for a particular person's internment and to pronounce on those reasons. The reason will, in many cases, be partial and incomplete. Very often the source of evidence with regard to a person is such that in times like these to disclose it, or give any information that would lead to its disclosure, would probably be endangering life. In a situation like that we cannot leave it open to the Courts to review the reasons of the Executive for interning a particular individual and to pronounce on these reasons as to whether they are good or sufficient. I want to make this perfectly clear, that it is not an objection to having a confidential departmental record setting out in general terms the reasons for the person's internment, but I must insert words, or in some way qualify these that I have inserted, so that it will not be a matter that can be brought before the Courts for a verdict, whether these reasons are good enough to justify the detention of a person. I thought it right to say that before the amendment would be through, for, as a general thing, when an amendment is accepted in that way you do not like to be told afterwards that you ran away from it. Deputy Johnson made it clear that he did not want anything served on the prisoner. I was, I think, emphatic on that: that we were not going to charge a prisoner or give him a statement as to the reasons for his detention. Simply as a corollary to that, we do not wish to place ourselves in this position—that the prisoner could apply to the Courts to examine the reasons for his detention and to say whether they were sufficient. I will have to take advice on the matter and go into it closely, but I give notice that at some future stage of the Bill I will qualify this.

I think the Minister will find on his examination that even the safeguard that he has agreed to insert is not going to impose any very grave risk or limit his power to any appreciable degree. The utmost, I think, the amendment, if accepted, will accomplish—I hope it will accomplish more, but I have not much expectation—will be to ensure in this case, as in the others, that the person responsible for stating the reasons will have to think out these reasons. He will have to write something down which imposes on him a certain responsibility, and perhaps before the Appeal Court the records may be called for and the reasons then will be available. It will not be possible, for the detention of persons merely by inadvertence, for new reasons to be given at the time the Appeal Court is going to enquire into the case. I do not think that the Minister need be very anxious that he is giving away very much. On Section 6 I would ask the Minister to give some consideration to the point raised by Deputy Gavan Duffy. It was quite new to me, but I think it is important. It refers to Sub-section (3), where the Oireachtas is asked to state in an Act of Parliament that a person who is being sentenced shall continue to serve such sentence so long as it is unexpired. This may be a matter of phraseology, but as it stands it seems to me almost to limit the prerogative of mercy. It almost limits the power of the Minister to advise that a sentence should be brought to a conclusion.

Mr. O'HIGGINS

Would it meet the Deputy if I were to add there, "until such time as reviewed by a competent tribunal"?

I think that that would go all the way to meet that point.

Do I understand that the Minister for Home Affairs will deal with that matter on the Report Stage?

Mr. O'HIGGINS

Yes, I undertake to do so.

This Section raises a very serious and difficult question—namely, what is a Government in the position of the present Government to do with its prisoners after a civil war? I am the first to admit that it is a difficult question. I want, without any special pleading and without rhetoric, to put plainly before the Dáil what, I was informed, was done in similar circumstances in South Africa. The parallel is extraordinarily close. Dutchmen fighting Dutchmen there. Here Irishmen fighting against Irishmen.

Mr. O'HIGGINS

No; burning and robbing Irishmen.

The parallel is extraordinarily close. There may be a difference in the length and duration of the rebellion in one place, and a difference as to the actual number of prisoners taken. I think the South African rebellion lasted two or three months. There were not so many prisoners as here, but there was a large quantity of prisoners. There was, of course, extremely strong bitterness, as there always is in time of civil war, between the two sides. General Botha and General Smuts were the people at the head of the military and civil sides. Would you believe that when the war was over they did not intern anyone on suspicion? I am giving the Dáil the facts as given to me by a gentleman well known to a good many members, and who served under both of them, and whose recollection I therefore accept as being of a thing with which he was personally conversant. One man, and one man only, was executed, and he was executed for mutiny by the military. Nobody was kept in internment on suspicion. General Botha took quite a different method, and I ask the Dáil to remember that his problem was a much more serious one than our problem, because the war was at its height. This was at the beginning of 1915; the rebellion had occurred in 1914, and if the rebels had succeeded, South Africa was lost to the British Empire. Therefore he was dealing with a very serious problem, and everybody knows that to-day there has been a very general and sincere reconciliation in South Africa between those who were formerly fighting one another. Smuts and Botha established special tribunals to try those whom they had taken in arms, and those tribunals were not manned by military men. Those tribunals were manned by people of legal experience and qualifications—people accustomed to weighing evidence and people trained to giving their decisions without any regard to party feeling or passion. What is, perhaps, the more remarkable is the nature of the sentences that were imposed. The trials, of course, were very numerous. Sentences were imposed of three months, six months, and nine months' duration. I am not sure if in any case a sentence went to eighteen months. There were in all cases very short sentences. I know also that the persons sentenced were released very shortly afterwards without completing their sentence. I think that General De Wet himself came out of the prison to which he had been sentenced in less than nine months. I mention those matters because I think it is well, when the Dáil is asked to pass a very extraordinary measure of this kind, that it should reflect first, and ask itself whether it is doing the right thing. Botha's system may have been right or wrong, but at all events he had a definite system with a definite end to it. He accomplished his purpose. I will not paint the lily by commenting, but I ask the Dáil to look upon that picture and the picture presented in this Bill.

The Minister says it was not a case of fighting here in Ireland but a case of burning and robbing. It may or may not be that. Proportionately there was more burning and robbing in Ireland than there was in South Africa or in any other country in which there was civil war. These are accompaniments of civil war, and there was burning and robbing very extensively in the United States, South Africa and other places. One of the very common charges against De Wet was indiscriminate looting, raiding and burning. I do not know that he conducted himself very much better than some of the leaders of the Irregulars in the South. You do not get over the point by saying it was burning and robbing from fellow citizens. As a matter of fact, I do not think that comes exactly into this Section at all. The Section gives power for the further detention of people who have been sentenced or people who are presently interned. Some of those no doubt are interned on suspicion of having been connected with burning and robbing, but a great many of them have not. Nobody but the Ministry can tell us whether a majority or not have been convicted or held in detention because they are suspected of having taken part in the acts mentioned in Part I. of the Schedule, not, as the Minister would like us to deduce, for taking part in the two offences for which, in my opinion, a particularly brutal punishment is provided in the Bill. No parallels are absolutely complete. We do not get such things, but at least it is to be noted that in South Africa, the United States, and the other places those things were wound up by the Courts. I am glad the Minister has agreed to insert the words "in any stage until reviewed by a competent Court" in one of the Sections. That goes a considerable distance, and if that mind were revealed right throughout the Section it would be more satisfactory still. Even if I may mention it, in one of the most serious of the cases, in America the conspirators who were tried by military commission for the assassination of President Lincoln and the attempted assassination of others, part of the charges against them were burning and robbing, not merely of assassination. So the Minister's argument in that does not come in. I think it well worth the while of the Dáil to consider that Courts are the proper way of disposing of these things, and for the Dáil to remember that not only will there be an Indemnity Act but also an Amnesty Act, as there have been in all such controversies in other countries.

Motion made and question put: "That Section 3, as amended, stand part of the Bill."

The Dáil divided:—Tá, 35; Níl, 12.

  • Liam T. Mac Cosgair.
  • Gearóid Ó Suileabháin.
  • Micheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Pilib Mac Cosgair.
  • Domhnall Mac Carthaigh.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Aindriú Ó Láimhín.
  • Proinsias Mag Aonghusa.
  • Éamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.

Níl

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Tomás Mac Eoin.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Éabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.
Motion declared carried.
SECTION 4.
(1) As soon as may be after the passing of this Act there shall be established by an Executive Minister one or more Appeal Councils, consisting of not less than three members, of whom one shall be a person certified by the Attorney-General to have legal knowledge and experience.
(2) Any person detained in custody under this Act, whether under an order of an Executive Minister or by the military authorities, may in the prescribed manner request that an enquiry into the matter of his detention be made by an Appeal Council, and such Council shall thereupon with all convenient speed inquire in the prescribed manner into the case of such person, and shall report in the prescribed form to such Executive Minister the result of such inquiry.
(3) Whenever an Appeal Council has inquired into and reported on the case of any person under this section, and either
(a) such Council has reported that such person has failed to show that there is no reasonable ground for suspecting him of having committed or been engaged or concerned in the commission of any of the offences mentioned in the Schedule to this Act; or
(b) an Executive Minister, having considered the report of such Council, is of opinion that the public safety would be endangered by such person being set at liberty;
such person may be detained in custody in any place within or outside the jurisdiction of Saorstát Eireann during such period as an Executive Minister considers that the public safety would be endangered by such person being set at liberty.
(4) No person serving a sentence of imprisonment or penal servitude imposed by a tribunal established by the military authorities shall be entitled to appeal to an Appeal Council under this section.
(5) An Executive Minister shall make regulations for the execution by Appeal Councils of the functions imposed on them by this section, and the word "prescribed" where used in this section means prescribed by such regulations.
Amendment by

"To insert before Section 4 a new section as follows:—

"‘For every hundred persons detained without trial in any one place of detention, under this Act, at least one qualified medical officer shall be appointed, and whenever any such medical officer shall report to the Governor or other the person in chief control of a place of detention that a person there detained is seriously ill, it shall be the duty of such Governor or other the person in chief control immediately to notify by telegram the wife, husband, or nearest relative of such detained person, and to admit such wife, husband, or nearest relative, without further authority or formality, to visit such detained person, and likewise forthwith to admit, without further authority or formality, any medical man of recognised professional standing whom such wife, husband, or relative may call in as a specialist or consultant.'"

There is a misprint in the first line of the amendment. The word "hundred" ought to read "five hundred." I think the fault may be mine, because, although the "hundred" is corrected in my carbon copy to "five hundred," it may not have been corrected in the copy I sent in. The proposal, therefore, is that for every five hundred persons interned there should be a medical officer, and that when anyone in the internment camp is seriously ill the medical officer should inform the Governor, and that it shall be the duty of the Governor to telegraph to the wife or nearest relative. It is also proposed to admit the wife or nearest relative, and to admit any specialist or consultant who is a recognised medical man that the wife or nearest relative desires to have admitted. I hope that Deputy Sir James Craig, to whom I showed this amendment in draft at the same time as the amendment concerning the appointment of a Medical Committee, will see his way to give me at least some support on this amendment, even if it does not commend itself to the Executive authority. The matter arises in this way. I have particulars here which I communicated some time ago to the Minister for Defence in connection with the death of Dr. Ferran. I have not yet got the Minister's reply, but he did deal briefly with the matter in answer to a question yesterday or the day before. The circumstances of that case are very painful, and I want to guard against a recurrence of anything of the kind. The information I have is that word first came from a private source that Dr. Ferran was very seriously ill on Friday, the 8th June.

The Deputy cannot refer to the case of any individual prisoner under this. We are not dealing with the case of Dr. Ferran at present.

If I may say so, I quite agree, sir; but surely I would be in order if I quote Dr. Ferran's case for the purpose of showing that an amendment such as this is necessary? At the present time it may be supposed that specialists and consultants are allowed in when a prisoner is dying. It may be supposed that the wife can go in when a prisoner is dying as a matter of course. I am referring to these unfortunate circumstances in order to show that it has not been so, and that is the only purpose for which I refer to it. Dr. Ferran died on the night of Saturday-Sunday, at 2 a.m., and the first intimation that he was ill came out privately at 3.30 the day before. His wife was not admitted until after 8.30 on the following day—the day that he died. Immediately this private word came out, a request for permission to see the prisoner and for the admission of a specialist and a consultant was made.

If the Deputy wants to refer to Dr. Ferran's case particularly, he will get plenty of opportunities for doing it, but he cannot do it on this section.

To what extent may I refer to it?

You can raise the case of the death of Dr. Ferran, and you will get any opportunity you wish to do so, but you cannot deal with the case of Dr. Ferran in full. It is not a passing reference that you are making to it; you are going into the case in full.

On a point of order, might I ask is it not in order for a Deputy to refer to any case in illustration of the argument he is using, as I did in the case of certain people yesterday evening?

I cannot consent to go on with this amendment if I am precluded from stating publicly the reasons which make such an amendment necessary. It is not a case of using this amendment for the purpose of recrimination. It is a question of using the facts which are within my knowledge to prevent a similar episode. If, sir, you rule that I cannot proceed to show the necessity for my amendment by what has actually occurred, some of it in the admission of the short answer made by the Minister for Defence the other day, it is useless for me to attempt to convince the Dáil that the amendment is necessary. I would respectfully submit that it would be an unheard of thing to prevent a Deputy from stating reasons drawn from actual facts, from actual occurrences, which prompt him to put before the Dáil a certain amendment. If you rule to the contrary, I cannot proceed.

The Minister for Home Affairs asked us yesterday, in discussing this Bill, to confine ourselves to the facts within our knowledge. When I tried to do so to-day I was told I was slandering some people outside.

I support the view taken by Deputy Gavan Duffy and Deputy O'Shannon on the point of order made, provided that the use of any name is merely to make a specific illustration of an argument in support of the motion. I think it is perfectly in order, provided that the Deputy is not making use of that illustration for some ulterior motive. If the Deputy had used the words, say, "a prisoner," I submit it would have been in order without question. Inasmuch as the Deputy referred to Doctor Ferran, it would not make the procedure out of order.

I am ruling that the reference to Dr. Ferran is out of order. I think the Deputy is out of order in going into the merits or demerits of the case connected with the death of Dr. Ferran. If he wants the case debated, he has opportunities of doing so other than on this Section. I am not ruling that he is out of order in illustrating his case by mentioning Dr. Ferran's case, but in going into the case in full.

If that is the objection, I undertake not to go into the case in full or anything like it. It is a very simple matter. I suggest and I press upon the Dáil that the amendment now before us is necessary in order to prevent the death of a prisoner, without an opportunity being given to the prisoner's wife to attend his dying bedside. I put it that it would be indefensible for a dying prisoner, or a dying prisoner's wife, to be refused the advantage of having such specialist or consultant, being a well-known professional man, as the prisoner or his wife might think proper to call in. I think it is also indefensible that where a prisoner is seriously ill that that fact should be ascertained privately and not publicly in the first instance. I think it is indefensible that conflicting statements should be made on the telephone from a prison as to whether or not a dying prisoner is seriously ill. I think no one can defend a case where the medical authority, in a camp like the Curragh, informs the relatives on the telephone that a prisoner is dying, and yet the prisoner's relatives are not admitted until 24 hours afterwards, when he is unconscious. That is the kind of thing I want to avoid, and if you are adopting this horrible expedient of interning thousands of people without trial, the least that an Executive may be expected to do is to make stringent rules to ensure that in a case of that kind proper humane treatment and justice will be given to the prisoner and his relatives. That is the very least that an Executive, in its own interests and in the interests of the country, ought to ensure.

It may be regulations have been made of which we know nothing. They ought to be published. I do not know of any such regulations, but I do know from what has actually occurred in the case which I have cited that it is essential to insist that the relatives of a dying man, or at least the nearest relative, shall have access. That has not been respected in at least one case. It may be due to want of co-ordination between different military authorities, but, whatever the cause, it ought to be removed, and every care should be taken that it shall not happen again. There should be also leave given to a specialist or consultant to visit a dying man. There was a case in which permission was refused to a specialist or consultant who was asked to see a dying person. Can anybody justify a thing like that, particularly if a man has been ill a short time before and is known to be delicate? The object of this amendment, word it any way you like, is to secure that when a man is dying in internment, a man uncharged, it shall be the absolute duty of the Government to notify his nearest relative by telegram, and to admit that nearest relative at once. Is it not a shocking thing that a military authority at a camp like the Curragh should give leave to a wife or a relative to see a person who is dying, and that that leave should be cancelled as ultra vires by a higher authority in Dublin? That is the kind of thing that you have to fight against in any matter of this kind where you are interning people on suspicion without a proper code of rules. I put it to the Ministry that in their own interests and in the interests they represent they ought to lay down and publish a very definite code, showing they will be no parties to the recurrence of anything of the kind. It is bad enough that it should have occurred in one case, but at least let us have very definite assurance, incorporated in some such way as I suggest in the Bill, that both those grievances will be quite definitely removed, as to the access both of a nearest relative as soon as it is known a man is seriously ill, and of a specialist or consultant who is a well-known professional man.

Mr. O'HIGGINS

I do not propose to accept the amendment. I invite the Deputy's attention to Section 13 of the Bill. I submit that under that section regulations can be and will be made providing for the general health and comfort of the detained persons, and when one speaks of efficient management of this and that kind one naturally adverts to sanitation and the general health of the prisoners. Regulations can also be made dealing with cases of serious illness, but this amendment as it stands is unacceptable, and I think that the Deputy would be well advised to waive the matter until we arrive at Section 13. He can again raise the point then that he has now raised. If he does not wish to raise it again I can only assure him that when it comes to the making of regulations under Section 13 what he has said will receive all the consideration that it deserves.

May I ask if the regulations will be made public?

Mr. O'HIGGINS

You may ask anything you like.

Do I understand the regulations will be private and that the Dáil will never see them?

Mr. O'HIGGINS

You can raise that matter on Section 13.

The Minister has asked me not to press this amendment on the ground that he is going to make regulations. He says he will consider what I said, but he does not say he will accept what I said. Apparently he is not prepared to say that we shall ever see the regulations.

Mr. O'HIGGINS

Raise the matter again when we come to Section 13.

I must say it is very unsatisfactory.

I think the Minister is treating this amendment in a spirit that the amendment does not deserve. I am reluctant to say very much, but it would seem in the face of things that he was dealing rather with the Deputy who proposed the amendment rather than with the amendment. That is not the spirit in which any Deputy in the Dáil should deal with any amendment, and particularly with this.

Mr. O'HIGGINS

The discussion on these regulations, which Section 13 deals with in detail, will more properly arise under that section.

I am not dealing with Section 13 at all. I was about to deal with the amendment before the Dáil. I am quite sure that when we come to Section 13 that there will be plenty of discussion on the question of the regulations. In passing I would say that I cannot see that the one word "management" in a section that is providing for the efficient detention of the prisoners leaves or gives much scope for a proper and helpful discussion on the substance of the amendment before the Dáil, unless that detention will be construed wide enough as meaning the prevention of escape by death or something like that. The Minister at this stage is not prepared to consider the substance of the amendment. The arguments put forward in favour of the amendment will, I hope, be considered by the Dáil, because I think they are worthy of consideration at this stage of the Bill. There is nothing, I think, very far-fetched in the amendment. It is naturally one of the first duties of an Executive authority to make proper medical arrangements for its places of detention and its jails.

Mr. O'HIGGINS

Hear, hear.

The Minister agrees. The Minister will go further and say that that is already being done. But he has not been good enough, even in answer to this amendment, to tell us exactly what is being done in that respect. We know very little about prison regulations. It would be useful, to say the least of it, if he would detail and outline the arrangements that either are in force at present or that he contemplates putting in force to cover the matter raised in this amendment. If he thinks that one qualified Medical Officer for every 500 prisoners detained in these Internment Camps is either too many or too few; or if that is the number that is there at present he might let the Dáil know. I am not going to accuse him or accuse any Minister of having a particularly stoney heart, but he might let us know whether it is his opinion or the opinion of the Ministry, that Deputy Gavan Duffy is asking too much under present circumstances. He asks that the wife or husband or the nearest relative of the person likely to die in a detention camp should be admitted to that person, or that if, as in these cases, the relatives are very anxious that if only for the comfort of these, not so much as a reflection on the official medical attendance inside, that it would be well to have some properly qualified and some trustworthy Medical Attendant to go in and see that prisoner; the Minister might let us know whether that is too much to ask. But to turn and simply say "You may ask such a thing" and get no answer is not treating the subject with that importance that it really deserves. I support the amendment.

I was hopeful that the Minister would have said, in reference to this amendment, that the circumstances which have resulted in certain suffering and death, and hurt to the friends of those who have died having somewhat passed, there was no risk in the future of these incidents happening again, and that he would have met the amendment by a statement of some reassuring kind in regard to the availability of competent medical assistance, and some assurance too that when the prisoner was seriously ill that his relatives would be immediately advised and allowed access. That, as I read the amendment, is the object sought to be attained and to be made part of the Bill. I do not think that unless the Minister is prepared to amend in a mandatory way, Section 13, that it does meet the case required. It is desirable, I think, that detained persons should know that there is a medical officer available, and that in case of serious illness, that his friends will be informed; and it is fair, I think, to their relatives that they should know that they will of a surety be advised when any of their relatives interned are seriously ill. Every Deputy, I think, has had communications during the past month from people saying that they had no letters from their friends who are interned. They are distraught and wondering what is the matter, whether they are alive or dead, or what is the state of their health. If they had an assurance embodied in a Bill of this kind that such a prisoner, if seriously ill, will have the fact of his illness communicated to his relatives, there would be confidence at any rate that nothing was seriously wrong with the prisoners. That would be a distinct advantage, and I think it would be a humane provision to be embodied in a Bill of this kind. I think it would be proper to make regulations prescribing medical attendance and of the kind that is desired, and conveying information to relatives.

I think the Dáil would feel a great deal of satisfaction if they had the assurance of the Minister that that was the intention; that he would agree to it being put into the Bill, and not that the regulations that will be made will embody the intention of the amendment. One hopes that the reasons that have been given, in the past, for the overcrowding of prisons, and the extraordinary nature of the case, prevented certain things being done that the Minister would like to have been able to do, but in view of the easing of the situation, and the expectation of releases, the less overcrowding, some very positive assurance should be embodied in the Bill that medical attention will be available for prisoners, and that where there is serious sickness the relatives will be informed. I think it is due to the Dáil to have assurances of that kind from the Minister. It would be a source of comfort and confidence if such a provision as this were actually embodied in the Bill. We may have the assurance of the Minister that such regulations will be made; that would be of great value; but from the point of view of giving confidence and comfort to those who fear for their friends who are interned, it is not too much to ask that if anything serious is the matter with the prisoner in his health they should be informed, I think it is due to the House that some assurance of the kind should be given, and if possible, embodied in the Bill.

I do not think that this amendment as it stands could be reasonably accepted because I quite conceive that in certain cases almost the worst thing for a prisoner seriously ill might be for a number of people who if this amendment is passed, would have to be admitted in spite of any consideration of propriety or even of the welfare of the prisoner himself. I think it would not be wise to embody such an amendment in the Bill and make it mandatory. But I would like to add my voice for what it may be worth to what has fallen from Deputy O'Shannon and Deputy Johnson as to some assurance as to the nature of the regulations that are to be made.

An Ceann Comhairle at this stage resumed the chair.

It does seem to me that it would be very hard to say that provision of medical attendance was fairly included within the 5 subheads of Section 13. They seem to me rather to deal with provision as to visitors and letters and the detention of prisoners. But notification to the relatives as to the state of health of a prisoner who is untried and in preventative detention seems to me, ought to be provided for by regulation in some shape or form. I feel it would be very difficult indeed to embody a mandatory provision in the Bill, and especially such a mandatory provision that on the mere receipt of a telegram a wife, husband or other relative of a particular prisoner must be admitted, and that no one has a right to exclude them, when such a visit to a prisoner might be considered by his doctor to have a dangerous effect. As the amendment is drawn the relative would have a right to insist on being admitted although it might be to the actual detriment of the prisoner. For that reason I do not think that the amendment should be accepted in the form in which it is, but I should gladly hear an assurance from the Minister that he will amend Clause 13 so as to provide for some of the matters included in the amendment.

As Deputy Gavan Duffy introduced my name I want to say a word or two, because I had no idea, when he spoke to me about the number of prisoners that could be attended by a medical officer, that it was intended for an amendment in this case. I could not possibly agree as to the first part of the amendment, and I could not possibly state the number of prisoners that should be attended by one medical officer. None of these men may be really ill at all. A medical officer might attend a thousand prisoners if there was no illness whereas if there was serious illness he could not attend more than 50 or 100, so that the Government must be left entire freedom as to the number of medical officers required. I feel in existing circumstances that there should be one medical officer for each 500 men.

As regards sanitary matters a medical officer could look after that by giving one hour each week. Deputy FitzGibbon touched upon a thing that I feel very shy about. Whereas I would like that the relatives of the prisoner who was seriously ill should be acquainted with the fact, I should be very sorry to have it inserted in the Bill that the relatives should be admitted, under any circumstances. If a man is very ill with pneumonia, it might be most injudicious that his relatives should be admitted at all to see him. With regard to the third point in the amendment, about which I feel most strongly, I say that the Minister should see that it is put into the regulation that where a man is seriously ill, say from pneumonia, his relatives should be acquainted, and if they were anxious that another doctor should be called in as a consultant then I think it should be possible for the prisoner's relatives to have the right to bring in such a consultant. We all know, in private life, that though a consultant may not be able to do anything, still what a relief it is to the friends to have his opinion. I appeal as Deputy FitzGibbon has done, to the Minister to assure us that the relatives should be made acquainted with the fact when a prisoner is dangerously ill, and that if they express a wish to bring in a consultant, they should be allowed to do so.

I desire to support some of the points raised in this amendment. Like the last Deputy I am not going to say what medical attendance there shall be for each person interned, but I certainly think that if an internee becomes seriously ill, the relatives should be acquainted, and the nearest relatives admitted to see the patient. In some cases, of course, the admittance of relatives might be detrimental to the patient, but, on the other hand, I think that the visits of relatives to internees who are ill would be very desirable.

Mr. O'HIGGINS

When I was going through this Bill and the amendments to it, it struck me that Amendment No. 74 could in large part, at any rate, be accepted as a suitable amendment to Section 13. The making of regulations is primarily a matter for the responsible Minister. Section 13 provides that these regulations shall be made by the responsible Minister, and not by Deputy Gavan Duffy. It is the proper thing to suggest, as Amendment 74 suggests, that the regulations should cover certain things. On the question of visits of consultants, and so on, I am well aware that the greatest possible care was taken, all through last year, to ensure that the relatives of prisoners seriously ill would be informed, and that if necessary they would be admitted. I am also well aware that there was never any difficulty whatever, when a bona fide request was put up for a consultant. I am aware, for instance, that a consultant, and the consultant that was asked for, was allowed in to Miss MacSwiney when she was on hunger strike, though that particular illness, and that particular critical condition, was brought on by her own act, and could have been terminated by her own act, or at least rapidly remedied by her own act. Yet, when Madame O'Rahilly came to me and asked that a particular consultant should be allowed in to see Miss MacSwiney, I at once translated that request to the Minister for Defence. and the consultant was, in fact, admitted. There is no use in Deputies getting up and, by implication or innuendo, suggesting that we are out to break the hearts of relatives of prisoners, or that we are out to kill prisoners by ill-treatment, or to deny them any necessary medical, surgical or nursing care. The contrary is the fact, and the contrary is well known to be the fact.

The Minister does not improve the case by overstating what was said in favour of the amendment. I never said anything distantly resembling the remarks he has apparently attributed to me. I wish to inform him in reference to the admission of Specialists, that the Director of Medical Services asked for a panel of Specialists in cases such as I have referred to. In other words, the mere fact that the man was a Specialist would not be enough. His view was that the military authorities should choose from a panel of Specialists, and from a panel of Specialists submitted by the relatives. The Minister's assurances, I must say, are very unsatisfactory. If he had definitely told me that he would deal with this matter, as suggested, in the Section to which he has referred, and would, if necessary, make the necessary amendment to that Section to enable the matter to be dealt with, I should not have been inclined to press this matter. I should have withdrawn the amendment. Instead of that he deals with the matter very evasively. He does not answer a perfectly reasonable question, and seems to think that the proper way to deal with this matter is to indulge in sneers at the person who proposes the amendment. I think that is a most unsatisfactory way to deal with a matter which is a very serious one for prisoners.

Amendment put.
The Dáil divided: Tá, 12; Níl, 34.

  • Tomás de Nogla.
  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Éabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muírgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Micheál Ó hAonghusa.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a'Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Pilib Mac Cosgair.
  • Domhnall Mac Carthaigh.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Proinsias Mag Aonghusa.
  • Eamon Ó Dugáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
Amendment declared lost.