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

I move Amendment No. 18, to insert before Section 4 a new Section as follows:—"It shall not be lawful to detain in custody without trial any person who shall have three or more children under the age of sixteen years wholly or mainly dependent on him."

I think it will be generally agreed that some amendment of this kind is necessary from ordinary motives of humanity. I have had occasion recently, for another purpose, to make some enquiry as to the prevalence of distress in Dublin, and I must say that I have been amazed at the number of cases of large families whose bread-winner is in prison here in this city of Dublin, cases where a man interned leaves three young children, or five, six or even seven practically unprovided for. I do not like to cite actual figures, because I have not got them absolutely accurate, but the Dáil may take it as a fact that there are a large number of such families in this city. In a case like that there are frequently three young-children, and the mother is not able to work; she has to look after the children, and very often the eldest child is not old enough to be earning. The consequence has been that there have been cases of acute distress. I ask the Dáil to observe that the motion is confined to cases of persons imprisoned under suspicion.

I quite recognise that if you are dealing with a criminal against whom you can bring a charge, that man should be proceeded against irrespectively of the number of his dependents, but I think it will be agreed that it is fair when you are passing a law to intern people on suspicion that cases where other persons wholly innocent will be seriously injured or will be liable to be seriously injured by your acting on suspicion against their fathers are cases which should be specially provided for. It seems to me where a man answers the general call from those whom he looks to as his leaders to go out in such a rebellion as we have seen, and where that man in so doing knows that he is risking great hardships for his children it is a great proof of his loyalty and sincerity. I do not think that the State need be apprehensive of such sporadic acts by such a man as that as would be a danger to it. In view of the fact that there are many such men with large families, a fact which I can absolutely vouch for, and that there has been great distress in consequence of their internment, I very earnestly press this amendment. I may say this further fact makes some such amendment all the more necessary, namely, that the Ministry or its agent have thought it necessary to annex very considerable sums of money collected for prisoners' dependents. Those sums have been held for a considerable time on the ground, apparently, that they might be used for some other purpose than the relief of prisoners' dependents, and on the suspicion that they might be so used. I do not know if any such sums have been returned, but, at all events, the fact of the withholding of such large sums has made it very difficult to deal with persons in the category with which this amendment deals. There has been very great distress, but there will be more distress if people who have a large number of dependents are allowed by the Dáil to be interned on mere suspicion.

I regret I cannot accept the amendment, nor can I accept the principle that the person with three or more children is entitled to exemption under an Act of this kind. I assume that many persons with three or more children have taken part in the armed revolt against the State within the last year, and I cannot undertake if the opinion is held, and held strongly, that the release of such person would be a danger to the public safety, such persons will be released. The amendment would involve that. Neither can I accept the principle that if a man with three or more children is reasonably suspected of the offences mentioned in Part II. of the Schedule he must go free in the critical conditions of things in the country. It is for those who have called him out and who have applauded from behind in the campaign of the last twelve months to advert to the sacrifices and the hardships that they are plunging people in, both the individuals themselves and their children, and the responsibility lies on them. I think it will be obvious to Deputies that an amendment of that kind, drawing distinction between citizens on the purely accidental circumstance of the numbers of their families, would be impossible of acceptance. I do not propose to stress the matter any further.

I am surprised to hear the Minister for Home Affairs rejecting this amendment.

Mr. O'HIGGINS

I was wondering whether Deputy Lyons was not a rather biassed person to speak on this amendment?

He has only ten.

I am going to press the acceptance of the amendment on the Minister for Home Affairs, who has charge of this Bill, and in whose power it is to accept amendments such as this in order to improve the Bill, so that the people of the Saorstát may gain some benefits from it, instead of the Bill, as it at present stands, leading the Saorstát into complete bankruptcy of the worst type. The new Section suggested is a very reasonable one. I wonder does the Minister fully realise the number of men who are at present interned and who have more than three—some of them eight—children under sixteen years of age. What preparations, if any, has the Minister made in connection with the dependents of prisoners who may be taken on pure suspicion and detained without being charged or tried for a week? What is to happen the dependents of those persons? What is to happen the little children during the time their breadwinner is in prison under a false charge? The Minister says he cannot accept the amendment, but he offers no help or no way out for the children of the man who is imprisoned on his signature. The Minister may put his signature to a particular letter simply because some of his captains or somebody in the Saorstát may get in touch with him and tell him that such a person is a dangerous character to have at large. There is no proof that the man is a dangerous character. What the Minister says is, "If you say this man is a dangerous character, it must be so; the man must be dangerous and he must be taken and interned; his children must starve and we will have to make an example of this particular man although he has a family. We must teach the children, and when they are reared they will have the same respect for the Saorstát as we, in our time, had for the English." That is what you will do. Instead of giving the parents an opportunity of rearing the children and educating them so that they may be in a position to assist in the progress and general welfare of the country, you will be working in the contrary direction. You will be so doing if you do not accept the amendment. I am surprised the mover of the amendment did not specify any man who is married and who, if not a father, might be a prospective father. It is a shame and a crime against humanity to arrest and intern without trial or uncharged the father of a helpless family. By doing so you are really allowing children to starve. What will their mothers become? The women whose husband is arrested and interned knows perfectly well that the breadwinner is absolutely innocent, as innocent as the falling dew from heaven. That is the only comparison I can find at the moment; I can find no comparison in any living person, and therefore I must compare it with the dew falling from the heavens, for the dew cannot commit sin. Now I do not stand up here simply to try to prolong the time, as I can see that thought passing in the mind of the Minister for Home Affairs. I can see that he believes that I am standing up here supporting this amendment in order to prevent this Bill passing through before 8 o'clock in the morning. My intention is nothing of the kind. I am supporting it because, to my mind, this amendment is just and honest and perfect. If you want to make citizens have respect for the Saorstát, then you must treat them as citizens. Do not make the young child that is toddling along to school an enemy of the Saorstát. If you reject that amendment, believe me, you cause that child suffering. If you cause that child to go to bed without its supper or to school without its breakfast, if you cause its mother to be penniless, and if you cause her to go with her hand out looking for alms, as she would have no other way of living if her husband is cast into prison by the representatives of the majority of her own people, they are wrong tactics. It is the wrong way to get people to support you. Give the children an opportunity of being educated and brought up as they ought to be. I ask you to accept this amendment, and so prove that there is one soft spot in the heart of the Minister for Home Affairs, a heart which the people say is something like flint. I ask you to accept that amendment. You might possibly think that it is owing to the motion being put forward asking the Dáil to adjourn and because we were defeated that we are standing up here. I can assure the Dáil it is nothing of the kind.

The Minister for Home Affairs knows as well as I do that he has succeeded in getting the majority of this Dáil to pass every Bill he puts forward. He knows in his heart of hearts, if he has such a thing as a heart, that this amendment is one of the most necessary amendments put forward by any Deputy. I know the Minister for Home Affairs has a heart, and that is why, more or less, I am not going contrary to him. I am making what I would call a fatherly appeal. By accepting this amendment I am sure that the Minister for Home Affairs will improve the Bill. I am sure he will change his mind, and that he will prove that he has a heart. Before this amendment is put to the Dáil I hope that every Deputy who answered his name here today will be able to stand up and deliver at least a half an hour's speech on it. If we do we may be able to get the views of the Dáil whether they are against having the fathers of families cast into prison and allowed to remain there until some humbug of a charge shall be made against them. I know myself of three or four particular cases where men have been arrested. I know one man from Edgeworthstown in Longford. I know a man out of the town of Longford and another man from Castletown in County Westmeath. These men are fathers of families. Worse than all, I know some men who are at the present moment without any charge having been made against them. These men were ex-service men. They had a pension from the British Government. As soon as these men were arrested and interned the pensions ceased, and their wives are dependent solely upon the generosity of the locality where they live. What will apply under this particular Section 4 if some such amendment is not accepted? Are you going to have the same thing apply here as applied for the past hundreds of years? They say of a man, "We have knocked all we can out of him, he is no earthly use to the Saorstát; there is a possibility, as somebody has told us, that he is thinking of doing something against the Saorstát, and I am going to arrest him now and allow his children to starve." You punish the innocent for the sake of the guilty. That is the idea the Deputy had in mind when he put forward this amendment. It is put forward to save these little innocent children that we are looking to for the future of the Saorstát, to build it up and to prove that we are a credit, even though the present generation has been such a disgrace. The Dáil should accept this amendment. Let the Deputies say, "We will not allow the fathers of innocent children to be imprisoned. If a man is an innocent man we will not allow his children to starve. We will not allow their mothers to become solely dependent upon the generosity of their neighbours." The idea of this amendment is to save that. I ask the Dáil to accept it. This is an honest amendment. If the Minister does not accept it it will be the worse for the Bill. I hope he will accept it, and if he does I can assure him he will have a more easy passage for the Bill. If he rejects it I can guarantee him having a very rough passage for it.

The motion of Deputy Gavan Duffy in moving this amendment has been treated with a certain amount of levity by the Deputies, and not unnaturally, because of the dramatic way in which Deputy Lyons has emphasised the arguments he puts forward. He is entitled to speak in a matter of this kind. Apart from the fitness of the amendment, in the place where it is intended to be put, I want to ask the Dáil to consider whether some such provision should not be included in the Bill. It asks that there should be some discrimination, and that a person having three or more children dependent upon him under the age of 16 years shall not be imprisoned without trial. I think Deputy Gavan Duffy argued fairly when he said that the very sense of responsibility for children must be somewhat of a deterrent against the commission of acts which might bring a citizen under the provisions of the Bill, and that the very fact that such a citizen has responsibility to children ought to be security against the risk that he is going to be detained for a possible 6 months without trial. After all it is not the desire of the Dáil to visit the sins of the fathers upon the children and surely it is not, at least I hope it is not, the desire of the Dáil to visit upon the children the punishment which is an almost certain consequence of the arrest on suspicious of the father. Deputy Gavan Duffy has cited cases of families whose breadwinners have been in prison for some months and who are in actual physical want. On another occasion when a matter of this kind was mentioned it was said that there had been money provided and that the families of prisoners, the dependants of prisoners, had as a matter of fact been cared for. I happen to know one case, at any rate, where the family of a prisoner has not in fact been provided for, for the simple reason that the family had no connection whatever with any organisation which pretended or professed to take under its charge such prisoners. It is for the consideration of the children of people for whom there is no provision that I ask the Dáil to consider the merits of this amendment. It is no fanciful story or prophecy that Deputy Lyons has put forward for consideration when he says that the children of internees will grow up with a spirit of anger against the State which enforced upon them, on the mere suspicion of a captain of the Army, hunger, perhaps cold, perhaps shortage in many ways and upon their mother actual suffering, physical and mental. The Minister has told us, and it is no doubt his intention, that this Bill is designed to meet the transition period. That being the case, I would urge that there can be no great risk in providing an assurance that the heads of families are going to be immune from arrest and imprisonment without trial. The Minister has minimised the risks of persons being arrested and detained on suspicion, saying that such suspicion will have to be very well grounded before these imprisonments will continue. You are under this amendment asked to provide that the children will be protected against the risk that their father or their mother, who may be the bread-winner, shall be detained for a period of six months merely on suspicion. I personally am not satisfied that the best way to arrive at that end is by this means. I am not sure that the form of the motion or the place in the Bill is the most fitting, but I am sure Deputy Gavan Duffy is not considering the verbal form of this amendment so long as he can get a positive assurance that the children of citizens are not going to be allowed to suffer, and that the parents are not going to be imprisoned on suspicion and their children allowed to suffer. I think it is to his credit, and I hope the Dáil will participate in that credit, that he should have regard to the children of possible suspects, and try to make provision in the Bill for safeguarding their interests. I would ask the Dáil to vote in favour of the insertion of this new section.

It is all right to adopt a humanitarian attitude, and it certainly is very popular on all occasions. This amendment is with regard to the imprisonment on suspicion of parents who are heads of families. I know an occasion where the head of a family happened to be in the National Army. He came home on leave for a few days. He was the father of ten. The mother came out of the infirmary a week or two previously. There had been twins four months previously. A certain party came to his house, nine or ten men, at two o'clock in the morning, and gave him a trial. They took him out from the bed where one of the twins, four months old, was sleeping, and shot him after three hours of a trial and something more than a trial. If he had been shot decently it would have been all right.

Would it?

Certainly.

On a point of order I am sure that the Deputy would not desire it to go down in the records that it was all right if he had been shot by these persons decently.

It would have been better; but he was not shot decently. Supposing there was another head of a family under suspicion for this offence. Has the Opposition on any occasion advocated that those persons should be brought to justice, or that those who bring them to justice should be facilitated? Have we always to adopt this humanitarian attitude? I want to ask have those who wish to bring culprits to justice been facilitated by the parties who are now humanitarians?

If the Deputy suggests that those of us whom he refers to as the Opposition in any way approve of the act or similar acts to that which he mentioned, he is making an implication that is not only undeserved, but one which we resent. So far as our judgment goes, we have not done anything that would prevent the proper authorities from taking proper action in such cases as that. What we did object to were certain things which we thought improper.

Is this discussion in order?

Deputy O'Donnell speaks so seldom that I heard him patiently to the end. When he had told his story he spoke two sentences that were relevant to the amendment. Then he went away from the amendment to make a statement that I was not quite sure about, and which Deputy O'Shannon has refuted. I think it is hardly necessary to refute those statements. I do not think that Deputy O'Donnell had in his mind that Deputy O'Shannon or anyone associated with him would not do his best to trace up crimes of that sort.

Deputy O'Donnell's assertion is one of a series of similar statements charging us with condoning crime, and I resent it. The Minister for Education did not call Deputy O'Donnell to order.

I have asked if the discussion was in order. If Deputy O'Donnell went out of order, and if Deputy Johnson was of opinion that he did, he should have called attention to it at the time. I now ask if it is in order on the amendment.

No, the discussion is not in order, but, as I say. Deputy O'Donnell speaks so seldom that I allowed him to develop what I thought possibly might be an argument for or against the amendment. He said something at the end which Deputy O'Shannon interprets that Deputy O'Shannon and all associated with him would not assist in tracing people committing a crime such as Deputy O'Donnell describes. Surely Deputy O'Donnell does not mean that?

No. What I mean is that all parties who come to this Dáil and have any respect for the dignity of this Dáil should always facilitate the parties in every legitimate way who are out to trace up crimes of all kinds.

That is an excellent statement, with which we all agree, but which has no relevance at all to the amendment. Deputy O'Shannon can now continue on the amendment.

Deputy O'Donnell says that it is all right to talk humanitarianism, and I suppose there is a limit to humanitarianism. There is, undoubtedly. At the same time if there is a limit to it, that is not any particular reason, in my view, why when we can be humane and show a certain amount of humanity we should not show it. I did not suggest, in supporting the amendment, that we should let humanitarianism run mad, because if we did we would not be able to take measures for the protection of life or the preservation of the State or anything else. There are degrees in all those things that have got to be considered, but his argument does not go as far as he thinks it does. The fact that the Deputy asks that certain things be done which are mentioned in his amendment does not mean, unless I am misjudging his words altogether, that everything is to be allowed, provided that the head of the family is the person concerned and that he has dependent on him three or more children under the age of sixteen. I do suggest that in a case like that there is a reason for a very much greater care in examination than there is in a case where one has not so many dependent on him. Even during the period of the war with the British here I think there was a certain amount of consideration given to that. While everybody agreed that when a man's duty directed him to take a certain line, it was his duty to take that line, while giving full consideration to his responsibilities otherwise, yet in many cases care was taken to discriminate, if it were possible to ease the pain, and the penalties then were made to fit that. I do suggest that the amendment asks for very little more than would be ordinarily reasonable. I do not think that it asks for more than can reasonably be considered just, at all.

The Dáil divided: Tá, 14; Níl, 40.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Liam de Róiste.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Éabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall O Muirgheasa.
  • Domhanall O Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Donchadh Ó Guaire.
  • Gearóid Ó Súileabháin.
  • Uáitéar Mac Cumhaill.
  • Seán Ó Maolruaidh.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Deasmhunihain Mac Gearailt.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Mícheál de Stáineas.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Earnán Altún.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraic Ó Máille.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Próinsias Bulfin.
  • Séamus Ó Dóláin.
  • Próinsias Mag Aonghusa.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Séamus de Burca.
Amendment declared lost.
Amendment (19) by

In Sub-section (1) to insert after the word "experience," the words "and of whom the two others shall be persons well known and distinguished for their integrity, their sense of justice and their impartial judgment."

Amendment No. 19 is not in order on the ground of vagueness. It is altogether too vague to be inserted in an Act of Parliament.

It is a minor amendment in itself. The purpose of it is to draw attention to the need for some definition. Perhaps its definition is vague. May I amend this by having words put in now or at the next stage?

No. I told the Deputy several days ago that this amendment was too vague, and I have not received any further word from him since.

Mr. O'HIGGINS

I will bear in mind the class of person whom the Deputy thinks ought to be appointed.

It would be possible on Report to improve the matter.

Amendment (20) by

In Sub-section (2), after the word "authorities," to insert the words "and any person serving a sentence of imprisonment or penal servitude imposed on him by a tribunal established by the military authorities."

This amendment follows 16, I think. Amendment 21 next.

Do you rule 20 out of order?

Amendment 20 is the same, it appears to me, as amendment 16.

Yes, but Amendment 16 referred to a person being detained until an Appeal Council, upon a review of his case, reduced or remitted his sentence. Amendment No. 20 says: "any person detained may in the prescribed manner request that an enquiry into the matter of his detention be made by an Appeal Council." One is the case of the application; the other provides for the continuance of the sentence.

Amendment 16 provided for the review by an Appeal Council of sentences imposed by the Military Authorities. That was rejected. Amendment 20 provides an appeal for the same persons to an Appeal Council.

With all respect, Sub-section (3) of Section 3 dealt with the continuation of the sentences until the decision. The amendment proposed that such a decision should come to an end when the tribunal decided to remit sentences. That was rejected but provision was promised for insertion at the next Stage that the sentences should not extend longer than the Act extended.

Was that assurance given?

Mr. O'HIGGINS

No. I think the Deputy is making a mistake. The assurance given was that words would be added to the Section to provide that persons serving sentences——

I beg the Minister's pardon; I misread my note. The promise was that so long as it is not expired it will be something of this nature: "until such time as such sentence is reviewed by a competent tribunal." The amendment dealt with the period of a sentence. This amendment proposes to give power to the prisoners to appeal.

"To an Appeal Council established under this Act."

Exactly, and I submit that that is not consequent in any way on amendment No. 16.

The question of a tribunal to be set up subsequently is not the same as the question of an Appeal Council to be set up under this Act. Amendment 16 said that "Every person who at the date of the passing of this Act is serving a sentence of imprisonment of 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, 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." The question debated on that was whether or not a sentenced prisoner should have an Appeal Council established under this Act. Is that correct?

I think that is not correct. I think the question was whether the sentence should continue until it has expired, which may be six months after the passing of the Act. The contention was made that it was indefinite, and the amendment had to do with the indefinite nature of the sentence. That amendment was lost, but there was a promise given that a tribunal would be set up which would review it, but now we are coming to an entirely different proposition. Sub-section 2 says:—"Any person detained in custody under this Act, whether made under an order of an Executive Minister or by the military authorities." And we desire to insert "and any person serving a sentence of imprisonment or penal servitude imposed on him by a tribunal established by the military authorities may request an inquiry into the matter of his detention be made by the Appeal Council." I submit that is an entirely different question from the one respecting the continuation of the sentence until expiry of that sentence.

Mr. O'HIGGINS

The discussion that took place on Amendment 16 made it clear that the acceptance of the amendment would involve a complete change in the character of the tribunal which it is proposed to establish under this Act. There are, as I pointed out, Advisory Departmental Committees, and they are in no sense Courts, still less Courts of Appeal, and, in my opinion, to proceed with the discussion of Amendment No. 20 would be covering precisely the same ground as was covered in the discussion on Amendment No. 16, and to vote on it would be to vote on precisely the same issue.

There is a further point. Whatever discussion has been, I do not for a moment admit it was out of order; if it has been we should have been called to order. The issue is whether the amendment now before us is in order, not whether the discussion would be the same discussion. It is whether the amendment to be discussed is in order, and I submit that it is perfectly in order, notwithstanding what the Minister says about the Appeal Council, for the Council has not yet been set up. It is being set up by the clause we are discussing, and it may be altered radically before the Dáil passes from this section.

The statement the Minister has just made rather backs the case made by Deputy Johnson, for if one kind of Council were contemplated in Amendment No. 16, and later the Minister gave a definition which would not correspond to the kind of Council contemplated in Amendment No. 16, I submit that this amendment is quite in order, because it is an amendment of a particular kind of Council which has now been defined by the Minister.

I made no suggestion that the discussion of Amendment No. 16 was out of order. The question decided by the vote on Amendment 16 was that certain persons shall not have sentences upon them reviewed by an Appeal Council in manner provided by this Act. If we discussed this amendment we would be asked to take the very same decision and the amendment, therefore, cannot be discussed, because we cannot discuss and decide the same thing twice on Committee, but if it transpires on a further stage that the Appeal Council is substantially altered, and if any amendment is put up, then the amendment would be decided, and the question of the order of the amendment for the next stage will be decided upon, having consideration to all the relevant facts.

With all due deference, might I point out that on Section 3 the Appeal Council had not been reached. It was a tribunal that was referred to in Section 3. The question of an Appeal Council had not been reached or touched at that time. Therefore we were not aware of it in detail.

That is exactly what I have said. If it transpires that there is any necessity for again discussing this matter, which was discussed on Amendment 16, facilities will be provided for that discussion. Facilities cannot be provided now. The amendment is, consequential on the defeat of Amendment 16, out of order.

I beg to move:

To add to Sub-Section (2) the words, "It shall be lawful for the Governor, or other the person in chief control of any place of detention, to recommend for release any person or persons detained under his charge, and to bring the case of any such person or persons to the notice of an Appeal Council, who shall thereupon enquire into the same."

This amendment deals with a matter of machinery, and I am proposing on the assumption that the Appeal Section will be very considerably modified before it goes through the Dáil. I will reserve what I want to say about the Appeal Council until the proper stage. The object of the amendment is merely this: that the person who is best qualified on behalf of the Executive to judge of the kind of people who are interned, namely the person in charge of internees, should be in a position to recommend internees for release and to bring their case before the Appeal Council. I think the Dáil will realise that that is a very reasonable suggestion. It has always seemed to me a strange thing that Prison Governors at the present time have no right, no authority, no jurisdiction to recommend prisoners for release. I do not think this amendment needs any commendation. It speaks for itself. I trust the Dáil will agree that it should be lawful for the Governor or any other person in control of a place of detention to recommend for release any person or persons detained under his charge, and to bring the case of any such person or persons to the notice of an Appeal Council, who shall thereupon enquire into the same.

took the Chair at this stage.

Mr. O'HIGGINS

I am not accepting this amendment. It is proposed to give to detained persons the right of appeal to this Council. It is not proposed to authorise any person to act as proxy for them in the matter of such appeal. It is not any part of the official duties of the Governor in such a case to make recommendations with regard to release, and it is not proposed to add that particular function to his official duties. If information is required with regard to prisoners it will be asked for from the Governors of such places, and I have no doubt that it will be given. But the amendment proposes to go further and to impose on Governors the duty of recommending persons for release and bringing their cases before the Appeal Council. The amendment contains nothing useful and nothing helpful. If a prisoner wants to appeal to the Council he can surely appeal himself. If he does not want to appeal to the Appeal Council, why is it proposed to put the duty on the Governor to appeal for him?

I am not very enthusiastic about the amendment, because, as the Minister says, it does give a certain new function to the Governor, and I am not sure that this is a particular one that should be given. Perhaps my lack of enthusiasm for the amendment is due more to the form in which it appears than to the intention behind it. I think, for instance, that nothing should be put in the way of a Governor if he thinks fit to take steps to facilitate, either by exercising persuasion on a prisoner or otherwise, an appeal by that prisoner to the Appeal Council. The Amendment, perhaps, goes a little beyond that. I am not quite sure—I have some doubts about the wording of it—but it seems to me that it goes a little beyond that. On the main question, I think that it should be the duty of the Executive Council and of all authorities to facilitate in every possible way the exercising of the right of appeal, and, in any way which may be considered legitimate, to help the discharge of prisoners. I think that that is a general principle that is adopted at the end, or towards the end, of all periods of trouble, and I should not like the Ministry to be acting on the view that it is not their business, but that it is wholly and entirely the business of the prisoner himself, to take such steps as will help him to get out. I think that the duty of a Government is greater and more extensive than the mere negative duty of permitting a prisoner, if he so desires, to do certain things. I think it is its duty rather to help and facilitate in every way the prisoner doing this. If I can be convinced that the amendment does not give more power than I suggest to the Governor, and that the giving of more power would not mean a radical change in the functions of a Governor then I would be inclined to support the amendment. I do not know that I would do so otherwise.

Would the mover of the amendment tell us whether under it it would be possible for the Governor to bring forward the case of a person to the Appeal Council although that particular person may not wish it to be brought forward? That would seem to be so from the wording of the amendment, and if so it would be very undesirable.

Amendment put and declared lost.

I beg to move: To insert after Sub-section (2) a new sub-section as follows:—

"At any inquiry under this Section the Appeal Council shall be furnished with the reports or certificates in virtue of which the person whose case is being inquired into is being detained."

Mr. O'HIGGINS

I will accept that amendment.

Amendment put and agreed to.

On behalf of Deputy Davin I desire to move to insert after Sub-section (2) a new sub-section as follows:—

"Not less than ten days before any inquiry under this section the person whose case is to be inquired into shall be furnished with copies of the reports or certificates in virtue of which he is being detained, and with a statement of any charges or allegations against him which it is proposed to lay before the Appeal Council in justification of his detention."

There is, and always has been, a good case on the part of the prisoner for something of this kind. Although the main objection was really to alien government, practically every one of those who were interned from 1916 onwards objected, and rightly objected, on the ground that it was an alien government, that it had no right to detain them, and also on the other ground, the insufficiency of cause shown. They objected to the summary manner in which their liberty was taken away from them for the time. Many members of this Dáil were in that position. They will remember that on the mere order of a Secretary of State they were arrested, detained and interned. In that case there was an Appeal Council, or an Advisory Council, not exactly of the same nature as this particular one, but one whose function in a broad sense was to hear appeals. Now, when internees or detained persons went before that Court, the Court had plenty of material, and the prisoner or internee had no idea in the wide world of what that material was. There was no means by which, the prisoner, if he so desired—many did not take advantage of the privilege or the right at all, and others who went there denied the right of the Court—who went before the Advisory Committee could know what was against him, except that a Secretary of State, under 14B of certain Regulations, had ordered that he should be detained. Now, some of the material came out in the course of questions put by members of the Council to the prisoner. I remember the case of a certain person who was prominent in athletics, and one of the pieces of information that came out, perhaps not against him, but out of the volume of information, was that on a certain date fifteen years previously he had attended a Rugby football match at a certain place. The intention of this amendment is to give the prisoner some chance. On the one side you have the authorities well briefed, and on the other side you have the prisoner completely ignorant of what is going to be used against him, and which will undoubtedly, if the authorities consider it necessary, be brought before the Appeal Council. I think it is fair and reasonable that, before making his appeal to this Council, the prisoner should be entitled and enabled to do what the amendment asks. It is not, I think, too much to ask. As a general rule it is the practice in ordinary common law. It is common even in courtsmartial, where there is at least a preliminary investigation, at which the prisoner has some means of knowing what exactly the prosecution has against him. Something of that kind, to help the prisoner at the Appeal Council, is wanted—something like what the amendment proposes to give.

Mr. O'HIGGINS

In this amendment as in others we come definitely to the question of the character of these Appeal Councils, and a thing I want Deputies to keep well in mind is that these are not Courts. The whole principle of the Bill is to give to the Executive, because of an emergency situation, the power to detain persons without trial and without charge. It is a very big and a very drastic power— one that can only be justified, as I say, by an emergency situation which challenges the very existence of the State. One could, as I said yesterday, talk for hours on the soundness of the principle that a person ought to be assumed innocent until proved guilty. That is a good, sound principle. Almost every State in the world, I suppose, recognises and acts upon it. Equally every State will, in time of great stress, in time of great emergency, ask power from its Parliament to depart from it, and ask power to detain citizens on something short of legal proof; and everything short of legal proof is called suspicion, for want of a better word. It may be a moral certainty, but it is something, at any rate, which could not be supported by strict evidence before a Court. These Appeal Councils are set up to give detained persons an opportunity of showing cause why they should not be further detained, and to show cause why suspicion ought not to rest upon them with regard to particular offences. I have promised, by accepting a previous amendment, that the Appeal Councils themselves will be in possession of such reports and information as is at the disposal of the Executive with regard to the prisoner who appears before them. It is not proposed to put such information before the prisoner. On the Report Stage I would undertake to introduce something to this effect: "That a detained person appealing to the Appeal Councils shall be informed of what offence in the Schedule of this Act he is reasonably suspect." That at least will give him the general grounds on which he can proceed to base his case and his appeal. I would not undertake that prisoners will receive a copy of the specific charges or a statement of specific evidence against them. Yesterday, in dealing with this matter, I pointed out that in a certain situation —in a situation of turmoil and revolt and outrage generally—it is very advisable that the Executive should not disclose or give information that might lead to the disclosure of the source of its information with regard to particular prisoners. It might be a question of life and death upon this prisoner obtaining his release. We are asking power in the Bill to arrest and detain persons whose liberty is held to be prejudicial to the public safety. We will undertake to use that power in the most guarded and conservative fashion, but we cannot allow these Advisory Committees to take on the character of Courts. The prisoner will not be charged. But he can come before the Appeal Council and say: "I see no reason whatsoever why the Executive should think I am a proper person to be detained. I see no reason whatsoever why suspicion should rest upon me with regard to any of these offences, and I adduce here before this Council or Committee certain evidence of my good citizenship, certain references as to character, and so on." But it is not a Court; it is a Committee. We will lay before that Committee the reasons that led to the arrest and detention of the prisoner, and the Committee will hear the prisoner on the question as to why he should not be detained in that fashion. Anything further than that would give to these tribunals the character of Courts. Who would they have to try? Not prisoners. The prisoner is not charged. The whole purport of this Bill is to enable people to be detained without charge or trial, and it seems to me to give any further power than that would constitute a Court of that Committee, and a Court to try the Executive as to its use of the powers given by this Bill. That would be wholly wrong and a wholly anomalous situation. These Councils will be Advisory Departmental Committees. They will have at their disposal, to some extent at all events, the material upon which the arrest and detention of a person is based; they will have in substance the case of the Executive for the detention of that person. They will hear the prisoner on his aspect of the thing, and on the question of why he should not be further detained, and they may examine and cross-question the prisoner, and they will finally make their recommendation to the Executive. But we cannot agree to serve upon the prisoner a specific charge, or to place in his possession the information at our disposal with regard to him. To do so might lead to very grave danger to persons outside.

The Minister's statement rather belies the title he is giving to these Councils. He has decided that the Councils should be called Appeal Councils, but he has told us that they are not to be Appeal Councils at all; they are to be Advisory Committees to the Executive Council. I think it would be much better that the Bill should actually state what it is that the Minister's desire was when drafting the Bill, and that the Dáil should know what it is agreeing to. I think Deputy FitzGibbon rather commended the provisions of this Bill, especially the Appeal Councils, on the ground that it was some movement towards trial by Court. Now the Minister informs us that they are not to be Appeal Councils, and that they are really not to do anything more than has already been done by Ministers themselves. It has been competent, I am glad to acknowledge, for prisoners to make representation to Ministers, and to ask for a release on certain conditions, and Ministers have decided on cases without any Appeal Councils. They have taken the whole responsibility for detaining or releasing; they may have had Advisory Committees or they may not; they may have already in existence Advisory Committees of whom one person at least on each Committee "has legal knowledge and experience." I assume that they have had such Committees, or at least that they have had some such advice. It seems unnecessary to embody in a Bill of this kind a provision setting up Appeal Council Committees, which one may presume are already in existence, or if they are not in existence that the Ministers have already power to set up. But, according to the Minister, it is quite a misnomer to speak of this as an Appeal Council. They have no power except to advise the Minister, and he has claimed the right to refuse that advice if he wishes. That cannot be called an Appeal Council, and it seems rather to tend towards making little of the legal profession to ask them to appear before, or to sit on, a body called an Appeal Council which, in fact, has no right to decide anything, and which is, in fact, a mere Advisory Committee to the Minister, but whose advice need not be taken. I think the draughtsman of the Bill either misinterpreted the original instructions, or the Minister has retrograded since the instructions were given, or he has forgotten what these instructions were. We ask him to go back and think rather of the intentions of the Bill when he gives the name to his Councils of Appeal Councils, and not to confine their functions to that of Advisory Committees.

The amendment surely is not an unreasonable one. I understand that the Sankey Committee was frankly and openly an Advisory Committee, but even as an Advisory Committee the provision there was that the Chairman of such Committee must be a High Court Judge. This Committee is to be of less importance than that, inasmuch as all that is required of one of the members is that he "shall be a person of legal knowledge and experience." That is, however, by the way. If one is purporting to give to a prisoner rights or privileges that he has not hitherto had, to appear before a Council, it is surely not enough simply to tell that prisoner of what offence he has been suspected. It is reasonable, I suggest, to give that prisoner some information which he can reply to and answer, and to make some charge in respect of, not merely the offence, but the time and the circumstances in which it is suspected the prisoner was guilty of such an offence. How can a prisoner prove his innocence of a charge that is not made against him? We have been asked to agree to a Bill which purports to give an opportunity to a prisoner to prove his innocence. That reverses the normal practice, which was to ask the prosecutor to prove the prisoner's guilt? But not only are we now asked to give powers, or to impose upon the prisoner the duty of proving his innocence, but he is to prove his innocence of a charge which is not made, and, having proved his innocence of a charge that is not made, and having been able to convince the Appeal Council that he has proved his innocence of a charge that has not been made, the Minister still reserves to himself the right to refuse the advice of that Advisory Committee. However, that is perhaps going a little too fast, because that matter will come up on a later amendment. I would urge it is only reasonable that the cause which the Appeal Council is to inquire into shall not merely be before the Appeal Council, but that the prisoner himself shall have some knowledge of the case that is made against him, and of the charges, and of some of the circumstances upon which the suspicion has been formed. The Appeal Council will have had under the Bill itself certain information, but unless it is provided that the Appeal Council shall have the duty of examining and cross-examining a prisoner and of inquiring into all the circumstances surrounding the prisoner's activities round about a particular period, unless that duty is mandatory upon the Appeal Council, the prisoner's opportunities of proving his innocence may be nil, because all he is to be informed of is the offence, in a long series of offences, of which he is suspected of being guilty. The prisoner may be suspected of assisting in, or encouraging, the commission of one of many offences. He has been arrested and detained on that charge, and that is all that is to be told to him. He appears before a Court, and has to prove to that Court that he is innocent of assisting in the commission of one or of a dozen or of twenty different offences. I would urge the Minister to think more seriously of the responsibility he is putting upon the Appeal Council, and of how much easier it would be for that Council to inquire into a case if the prisoner is given some knowledge of the case that is made against him.

I desire to support this amendment. I take it the intention of this Bill will be, particularly if the amendment to this section is properly applied, to reduce to a minimum the number of people who are in custody on suspicion or on definite charges. Section 2 of the Bill says: "Any person detained in custody under this Act, whether under an order of the Executive Minister or by the military authorities, may in the prescribed manner request that an inquiry into the matter of his detention be made by an Appeal Council." I have always tried to look at this question from the point of view that there are several classes of people at present detained. There are people who, perhaps from high political motives, may have answered the call of leaders, believing that they were doing right. The number of people who responded to such an appeal, and who had previously done anything during the period of the Anglo-Irish war, may be comparatively small, taking into consideration the very large numbers of people at present detained. I take it that that class of prisoner would be reluctant to make an appeal to any tribunal set up under this or any other section of the Bill for the purpose of obtaining his release. But there is a class of prisoner, the class which has been interned and is being detained on suspicion, which would undoubtedly take advantage of whatever Appeal Tribunal would be set up, and I think it would be an encouragement to that class of prisoner to appeal to the tribunal if he was in possession of the actual charge on which he is being detained. In dealing with this matter of detention and the question of releases the Government and everybody who has an interest in the prisoners, or in the proper administration of the Government, must look at the question not from the point of view of everybody who has an interest in the prisoners, or in the proper administration of the Government, must look at the question not from the point of view of the individual who has a grievance because he feels he is wrongly detained on suspicion. If, for the sake of argument, a brother of the Minister himself was detained on suspicion and interned, and that the Minister and those of his family connections knew quite well that there was no reason, from their knowledge of his movements, why he should be detained, we can see that the opposition to the Government goes right through the family and affects a far greater number than the individual who is personally concerned. I think that is one of the reasons why an amendment of this kind should be accepted in order to minimise the opposition to the Government, and to reduce to a minimum a number of people who are detained or interned longer, at any rate, than they should be.

Speaking a while ago, the Minister said there would be danger, if this amendment were accepted, or if anything like this were done, that the sources of the Government's information might be disclosed, to the personal danger of certain people, perhaps, as well as to the danger of the State. I would not suggest that the sources of information should be disclosed in such a way as to justify the Ministry's fears. Not at all. The intention of the amendment could be quite well achieved without going to the length which the Minister seems to contemplate. The Minister says that the prisoner appealing will be informed of which of the offences mentioned in the Schedule he is suspected.

Mr. O'HIGGINS

As a matter of practice he will probably be informed of a good deal more. I want to draw a distinction between practice and a right. If you set down here that the prisoner shall receive a copy of the charge and all the evidence against him, you make a Court of this Appeal Council, and you give the prisoner an absolute right to be charged and tried. In point of fact, this is an Appeal Council to hear the prisoner on the question as to why he should not be further detained, and as a matter of practice the prisoner will receive all the information that it is considered right or safe to give him on the question of the reason why he is detained. If you set it down here in the Bill, you would make it a matter of absolute right, and you would make of the Advisory Council a Court, and that is where the objection lies.

That is a very important statement of the Minister as to practice. It was the point that I was about to raise. But if we had more information really about the Council we would not be working so much in the dark. I had taken a note to raise the question of the procedure of the Court. The section does not prescribe the procedure of the Court. The Minister now says that the Executive authority in dealing with the Appeal Council will adopt a certain practice. I presume that we can accept the word of the Minister on that. But he may not be the Minister who will exercise the powers given in this at all. For that reason I think it is necessary that there should be some better definition in the section of the rights or, if you like to put it, the privileges of the prisoners. Even if a prisoner is informed that he is suspected of one of these offences, and he is told something more than that, I wonder whether he is going to be told that at a certain time or on a certain occasion a certain one of these offences was committed, and that he was suspected of that? The Minister might say that that may disclose information which he does not want to be disclosed. and which he thinks it would be dangerous to disclose. But the offences, as given down here, are so wide that, taken not as charges, but as matters for suspicion, it would be extremely difficult for any prisoner, unless he has a great deal of information—more than I think is contemplated—to make a case. Some Deputies will remember that formerly one of the grounds on which people were interned was that they were associated with certain other people who were suspected of acting or being about to act—the Deputies will remember the rest of the phraseology. I know a Deputy who is a personal friend of a certain man in his town. That friend was deported and interned along with that particular Deputy. He was kept in detention even after the appeal to the Sankey Committee, although the Deputy's friend had not hand, act or part in any particular activity in the particular Western town to which he belonged. He was suspected, presumably, because of his association with this Deputy. Now, the present situation lends itself to that kind of thing. If, in a case like that, that internee had known the real grounds on which he was suspected, it might have been possible for him to make a case at the Appeal Council. He did not, and he was not able to make a case, and it was extremely difficult for anyone to make a case. Take, for instance, Section 12: "Aiding, abetting, assisting in or encouraging." Take that in conjunction with 10 and 11. It might be claimed that the Appeal Council might feel it was justified in detaining a prisoner because he was associated with somebody whom the Appeal Council had already convinced itself was reasonably suspected of some one of these offences. I think there is a case, if there is not too wide an interpretation given to the amendment, for the acceptance of the amendment, and that it would not go so far in the direction of making a Court with actual powers of release and anything like that, as the Minister seems to think. I will ask the Minister to accept it.

I support this amendment. I think it is only right that the prisoner that you are about to place before a tribunal of justice, or before the Appeal Council, should know the exact nature of what he is supposed to be charged with, and that he should know also every particle of evidence that was in your possession. I think it would be only fair that you should furnish the prisoner with such evidence, so that he may be able to put forward any evidence which he himself possessed or could offer to the Court with a view to proving his innocence.

The Minister has already said the prisoner would be brought before the Appeal Council. The amendment goes a little further and states "not less than ten days before any enquiry under this Section, a person whose case is to be enquired into shall be furnished with copies of the reports or certificates in virtue of which he is being detained." When you have such a large number of prisoners at the present moment, not taking into account the number likely to be interned under this new Act, it is only fair that those persons should get an opportunity of proving their innocence. If you take a man and detain him behind prison walls for a fortnight, three weeks, or a month, and at the end of that time you say to him "You are to be placed on trial to-morrow," it is hardly fair that he should not be given some particulars of the charge preferred against him. If you give him only 24 hours' notice, the man has no chance of getting together any evidence so as to contradict the evidence brought against him by the prosecuting solicitor, or whoever may be in charge on behalf of the Minister for Home Affairs. It is only right that the prisoner should be placed in such a position that he shall have furnished to him the evidence to be brought forward against him.

Mr. O'HIGGINS

As a matter of explanation, I would like to say it is not a trial. There is no charge. A person whose liberty is interfered with under the provisions of the Bill will be told there is an Advisory Committee, an Appeal Council, before which he may appear if he considers that he can show cause why he should not be further detained, and why, in fact, he never should have been arrested. In other words, he may be told, "If you feel you are innocent, you can come before a body of reasonable men and convince them a mistake has been made in your case." There is no use in the Deputy keeping on using such words as trial, and charges, and so on, after I have explained very fully that it is not a trial and this body will not be a Court. We are very emphatic on that. The whole principle of the Bill is to entitle the Executive, in view of a special emergency situation, to detain people without trial.

That is all the more reason why a person who is to be brought forward——

Mr. O'HIGGINS

He is not to be brought forward; he is to come forward.

You have him in your custody, and if he is not a prisoner, why not release him without setting up any Appeal Council that he is to go before? If what the Minister states is correct, there is all the more reason why the prisoner should be previously furnished with particulars. Take, for example, that I am the prisoner. If I am the victim that you may choose to lay your claw upon, just like a hawk watching for an unfortunate little swallow who might happen to be around, I should have some opportunity of defending myself. Just like the hawk, you and your associates are watching to see what victim may come into your grasp, so that you could sentence that victim to a term, even if it were only a few days, in order that you can show your authority. The explanation of the Minister for Home Affairs proves more clearly why the amendment should be accepted. It is only fair that a prisoner should be given an opportunity to show why he should not be detained, and for this purpose he should be supplied with copies of the evidence brought against him by the Minister for Home Affairs or his servants. It would be only right to furnish him with that evidence ten days before he is to be brought forward. Then he could be in a position to tell you why you must release him. If an innocent man is interned he cannot get an opportunity of explaining why he had been arrested. He is simply told he is arrested on suspicion; he has no knowledge of the evidence that is in the possession of his captors. He is just like a little bird in a cage. The wires are all round him. In this case the place of the wires is taken by the associates of the Minister for Home Affairs. They are so closely around that it is impossible for him to get out unless the Minister opens some avenue, and, in my opinion, the best way to open that avenue is to accept this amendment.

Amendment put.
The Dáil divided: Tá, 13; Níl, 39.

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

Níl

  • Donchadh Ó Guaire.
  • Gearóid Ó Súileabháin.
  • Seán Ó Maolruaidh.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Darghal Figes.
  • Deasmhumhain Mac Gearailt.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Earnán Altún.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Próinsias Bulfin.
  • Séamus Ó Dóláin.
  • Seán Mac Eoin.
  • Próinsias 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.
  • Séamus de Burca.
Amendment declared lost.

I propose the following amendment:—To insert after Sub-section (2) a new sub-section as follows:—

"Every person whose case is inquired into by an Appeal Council shall be afforded reasonable facilities to obtain legal advice and assistance before the inquiry is held, and may appear before the Appeal Council in person and/or by counsel or solicitor or a friend on his behalf."

I am sure that the Minister in charge of this Bill cannot possibly find an argument to offer against this amendment, or that he does not want to deny the right of a person whose case is to be inquired into of getting in touch with a solicitor or appearing in person before the tribunals. If this amendment is accepted it will certainly go a good way to facilitate some of those persons who will be brought before these Councils. Take, for example, the person who is detained in custody. If the solicitor is notified twenty-four hours before that person is to be taken forward to give an account of himself the whole conversation between the solicitor and client is overheard by a warder or soldier standing by. There is many a thing to be said probably by a solicitor to his client, or a client to his solicitor, which they do not want the soldier, policeman or warder to hear. Furthermore, I am sure the Minister has already explained that the prisoner will appear in person. If so, we can take it for granted that that portion of the amendment is already accepted. I do not think that it is possible for any honest, straightforward and just-minded, thinking man to deny the right of any person whom he may have in his power to procure some legal aid so that he may be able to prove his innocence of any of the charges that have been brought against him. I know it is the duty of the Government to prove a man guilty. Under this Bill it lies with the person himself to prove that he is innocent. If this amendment is accepted you shall give a person whom you have in your power an opportunity of appearing personally before the Appeal Council and of hearing every particle of evidence that is brought against him. You will be also facilitating him by allowing his solicitor to visit him without the aid of one of your soldiers, warders or policemen.

Surely we must for a moment cast our minds back. I am sure every Deputy in this Dáil can well recollect the human cry that went out from the nation that no person could possibly have a conversation with his solicitor simply because there was somebody always standing by to hear the conversation. All the words pronounced by the solicitor to the client or the client to the solicitor were known by the people who were directed to prove against the man a charge of which he was not guilty. I will ask the Minister to accept this amendment. I would like, of course, that the amendment should be accepted, not alone because it may help some of the prisoners already behind the prison walls, but because it will also help some of those persons that are still at prison walls, but because it may help some of those persons that are still at large and honestly watching and waiting for this Bill to get through the Dáil, so that the hawk of the Saorstát might not be able to lay its claw upon its prey and put it inside. The hawk of the Saorstát, to my mind, is a particular class of bird out listening to and watching everything people have to say, and under this Bill persons will be able to give a certain amount of information about many innocent men and women who may have to appear before this Appeal Council. It is for that purpose that I ask the Minister to accept this amendment giving those persons whose cases are to be inquired into by the Appeal Council an opportunity to get legal aid, legal assistance, and appear before the Council in person, so that they may be able to prove their innocence and be set free, and, above all things, that they shall not be kept at the expense of the ratepayers.

Mr. O'HIGGINS

I am not accepting this amendment, and my reasons for refusing it are simply the reasons I have given in connection with previous amendments that this body will not be a Court before which prisoners will be tried on a specific charge. It is a body set up to act as much in the interest of the detained persons as in the interest of the State. It will be substantially in possession of the Executive side of the question. With that before it and at its disposal, it will proceed to hear the prisoner on the question of why he should not be further detained. There will be nothing technical about it. It is a body of one legal man and two sensible laymen, and hearing two aspects of the question, they will come to a conclusion and make their recommendation to the Minister. To surround this thing with the trappings and procedure of a Court would be to convey a doubly wrong impression, as I have remarked before. There is a very special situation. Deputies, I think, will not question that, and in that situation the Executive asks Parliament, as it is its duty to ask Parliament, for all the powers which it thinks necessary to deal adequately with that situation. We ask for the very special power of interfering with the liberty of citizens to the extent of detaining them for a period without trial or without making specific charges against them.

Deputies must know that people have been active against the State and against the citizens for ten months who are now detained, and against whom it would be impossible to prove a specific charge in Court. It is simply common knowledge in that vague way that they were leaders of a column perhaps in an area, they were known to have been connected with particular acts of outrage and destruction, but it would be a very different thing to prove that in Court. There would be the difficulty of securing evidence. There is far more physical courage in this country than moral courage, and in a time like the present people are unwilling to come forward and give evidence with regard to offences. We are asking power to detain persons without trial for a period of six months. This body, the Appeal Council, is not a Court, but it is a body set up to deal between the detained person and the Executive, lest mistakes should occur. Mistakes conceivably might occur.

Hear, hear.

Mr. O'HIGGINS

And the prisoner who feels that, can come before a body of sensible men and put his case to them, give his references, and so on, and the mistake can be rectified. He will get that opportunity. But this is not a Court, and we do not propose to have solicitors appearing on behalf of prisoners in connection with it. If a prisoner is an honest man, with just that average share of intelligence which a normal man has, he can appear before this body and put his case perhaps better than any subtle lawyer could put it, and the very plainness and bluntness and frankness with which he can put his own case would probably be the biggest factor in the minds of this advisory body. I cannot accept the Deputy's amendment, and I stress the point that the members of this Council will be there as much in the interests of the persons who come before them as in the interests of the Executive, and having heard what they have to say for themselves, and weighing that with what has been put at their disposal by the Executive as the reasons for the arrest and detention of the persons who come before them, they will discuss matters between themselves, and come to a conclusion and make their recommendation. That is the conception of the Appeal Council.

I thought when listening to the speech of Deputy Lyons that if his arguments were not sufficient to convince the Minister as to the necessity for this amendment that, at least, the tone of his voice would have struck a very weak chord in the Minister's heart, and would have persuaded him to take a view contrary to the one he has now expressed. I, at least, expected that every Deputy with a legal training would have stood up to back up an amendment of this kind. Paragraph 1 of Clause 4 states "as soon as may be after the passing of this Act there shall be established by the 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."

What is the meaning of having on this Tribunal, if there is nothing technical about its conduct, a person who is certified by the Attorney-General to have legal knowledge and experience? It is either a Court or it is not a Court, and if it be necessary to have a legal gentleman whose knowledge of legal matters cannot be disputed, I think it is very desirable, in the interest of the prisoner, that he should have some legal advice, or somebody to deal with that particular gentleman who may be acting on behalf of the State. I take it that the presence of the legal gentleman on this Court, acting in company with two other commonsense individuals, will be for the purpose of determining any legal quibble that may arise with regard to the conduct of the Court or any argument that may be put up by the prisoner. The prisoner, no matter how intelligent he might be, would not be in a Court of this kind—and it is a Court, there is no use in putting any other complexion upon it, once you have a legal gentleman there on the one side——

Mr. O'HIGGINS

He is not on the one side. That is where the Deputy is making a mistake. He is acting between the two parties—the Executive and the person whom the Executive has detained.

Who is paying him?

He is certified by the Attorney-General to have legal knowledge and experience, and he is there, I presume, first in the interests of the State and appointed by the State. It is for that reason, and that one alone, that I think this amendment should be open to the consideration or reconsideration of the Minister. No matter how intelligent a prisoner may be, he will not be able to answer or meet the arguments of any legal man. In the interests of the prisoner who recognises this particular Court, and I take it every prisoner is not prepared to do that, I think the Minister might reasonably accept this amendment. The Minister also seems to harp, in every argument he puts up against any amendment from this side, on the fact that these people were active against the State and against the citizens. I am sure the Minister, even in his wildest moments, would not say that every man now detained in prison has been active against the State and its citizens. This Bill makes provision for detention of men on suspicion on any ground, good or otherwise, of aiding and abetting. Deputy Cathal O'Shannon gave a case with regard to a person in the West of Ireland who, because he was associating with a Deputy during the troubled period——

Mr. O'HIGGINS

Long horns!

I could give an instance nearer home.

He was arrested, and in spite of an application to the Committee, which was dealing with cases of that kind, he was still detained. When the whole situation is reviewed, when this trouble is all over, and when all those at present in prison are released, I think it will be found that the action of the Government in imprisoning men on suspicion will have done nothing except throw a cloak of patriotism over a large number of men who did not deserve it—who did nothing for the country, for the Republic, or for anything else. It is recognised that any man who was imprisoned during the British regime in this country, whether on suspicion or for the commission of a political offence, came out a hero. Under an Irish Administration I do not think the Government should be prepared to encourage that. By refusing to give a prisoner an opportunity to prove his innocence they are furnishing him with a pretence of patriotism, when perhaps he has no right to such a clock.

I would like to support this amendment, which I think the Minister should accept. There is nothing in it that I can see which would invest this Court of Appeal with the trappings of an ordinary Court. It simply says that the prisoner shall have the right to consult counsel or a solicitor. The Minister says the prisoners are all of average intelligence. "Average intelligence" is rather a vague term. The Minister knows as well as I do that there are men in prison who would not be able to put their case before a Court. As the last speaker said, there are innocent men in prison who may find it difficult to prove their innocence. If those prisoners who are innocent got an opportunity of consulting a solicitor and stating the reasons to him as to why they should be released, and if he were allowed to put those reasons before the Court, I think it would be only fair to the prisoner, especially when the President of the Court will himself be a legal gentleman.

I would ask the Minister to bear in mind the case of a young country man or a young country boy taken up here and interned. That man will not go before a tribunal; and even if he did, he would not be able to put his case as it should be put. We all know that all country men are more or less nervous when going before a gentleman looking at them, perhaps, through an eye-glass. If that man had the assistance of a legal gentleman he would be able to make a very good case. In fact, I am sure that if the Minister read the case he would let him out at once.

After hearing the argument put forward by the Minister against this amendment, I can assure the Dáil that it has not in the least convinced me. I am well aware that the members of the Appeal Council may be there, as the Minister stated, as much on behalf of the prisoner as of the Government, but I would ask the Dáil to remember that the members of this Council will be employees. I am sure that when their salaries come out of the Exchequer of the Saorstát and are given to them, probably by the would-be boss or will-be boss, the Minister for Home Affairs——

Mr. O'HIGGINS

The Deputy seems to be assuming that we want to keep innocent men in internment. We do not. The Deputy is assuming too much when he assumes any hostility or juxtaposition on our part to innocent men.

I am not assuming any hostility on your behalf against innocent men. It is the Minister himself who is assuming hostility. By not accepting that amendment he is proving that his intentions and the intentions of the Council are to intern and detain innocent men. As some of my colleagues have already explained, some men have not the courage to go before the Appeal Council. Some men may be nerve-struck owing to all the terrors that have taken place since 1921. If people who have lost their nerve are arrested on suspicion, and are not allowed to get legal advice to put their cases before the Appeal Council, I think it is ridiculous, absolutely ridiculous. If you have a charge against a person, you should give him an opportunity of getting legal aid. The Minister has not even yet stated whether the person concerned will be allowed to appear before the Appeal Council in person. Furthermore, I heard the Minister say that this Bill gave power to arrest, detain, and intern people without charge or trial for six months. The Minister may have made a mistake in using those words a few moments ago when he was answering me on this amendment. He made use of the words, "The Bill gives power to arrest and detain people without charge or trial for six months," although it says here in Section 2: "It shall be lawful for any responsible officer to arrest and detain in custody for any period not exceeding one week"—that is what the clause says—one week.

The Deputy is out of order.

The Deputy must confine himself to the amendment on the Paper.

I am confining myself to the amendment on the Paper. I made use of the same words that the Minister used in arguing against this amendment, and if the Minister was allowed to proceed when he was out of order, then I think the same thing should apply to the Deputy. I would like the Minister to explain whether he really meant those words.

I submit that the Deputy is out of order. I am trying to protect the Deputy and keep him in order, although it is not my duty.

The Deputy cannot go back and discuss a section already passed.

Surely the Minister fully realises the necessity there is for giving a prisoner an opportunity of contradicting any erroneous charges there may be against him. I would ask the Dáil to remember that the events of the past few years have seriously affected the nerves of a great many people. Deputies should also realise the strength of the arm of the law. You place the strength of the law against the weak arm of an individual. Surely he has not the strength or the full courage to stand against the mighty arm of the law without, at least, getting a little protection. He must have some protection, and the protection is given to him in this amendment. I fail to see why the Minister rejected it when he had already accepted the principle of it, at least, in a previous amendment, when he stated that the prisoner would appear before the Appeal Council in person.

resumed the Chair at this stage.

I was hopeful that the Minister would meet this amendment, at least, part of the way. The case that he has made, in resisting the proposal that facilities should be given to a prisoner who appears before the Appeal Council to have legal advice, is that he does not desire—that it is not the intention—that this appearance before the Appeal Council will be the same as an appearance before a tribunal trying a case, and, consistent with that intention, he says that he does not desire that the prisoner making the appeal shall be confronted with all the legal trappings of a Court, and have around him, to speak for him, solicitors or lawyers, and to treat the court as if it were a court belonging to and siding with the Government. But I think there is force in the argument made by Deputies Davin and Lyons, that many prisoners are not of a capacity, not fitted to make the best of their own case in a court, to put it before even a body of three gentlemen friendly disposed towards the prisoner. One can imagine the session. There is a private room where the three members of the Appeal Council are meeting with the papers before them. I will assume that nobody else is present but the prisoner and the three persons constituting the court, and that they and the prisoner are on friendly terms. I think there is no one but has had experience of an individual appearing before unknown people and having to state his case. Deputy Burke, for instance, will recognise what I am suggesting, that a young man, or an old man, who perhaps has not had many associations with what he might call the gentry, will go into a room and be asked questions, and he is immediately off his guard. He does not know what he is doing. He is not merely off his guard, but his wits are not with him. He is not at home. He feels he is before a tribunal, although he may not be, in the Minister's view, and he cannot state his case. Now, even if he had a non-legal friend, somebody that he could feel was a support to him, a moral support to help in making his case, the case might be very much more effective, simply by the fact that he had his wits about him and he knew that he was not before a court which was out to frighten him and perhaps put him in jail for ten years. I suggest that the case for the next friend, even if he is not a lawyer, to be present with the prisoner when he appears before this council is a very fair suggestion, and not at all an unreasonable one. But, even supposing that that, reasonable as it is, cannot be conceded, surely it is not unreasonable to ask that that prisoner, who knows that he is going to appear before such a tribunal, shall be able to get the assistance and the confidence that a solicitor, or a counsel, or a next friend could give him before he appears before that tribunal. Surely that is not an exceptional or extravagant request that will meet the Minister's objection that he does not want this council to take upon itself the character of a court? There will be no need for that objection to be stressed at all if the prisoner has an opportunity to confer, either with a solicitor or a layman before he appears before the tribunal. He, at least, has the feeling that there is somebody else in the world who is thinking about him besides the prisoners, on the one hand, and the tribunal on the other. I do not think there is anything extravagant in that request, and I would ask the Minister if he cannot meet the desires of the Deputy who moved it in some way, so that the prisoner shall have some facilities for conferring with a solicitor or a friend, either before or at the hearing of the case.

Let me reinforce Deputy Johnson's argument. One Deputy's argument was that there would be a difficulty, perhaps through sensitiveness or something like that, which many prisoners find themselves in when they come before any tribunal like this. I have in mind an instance of one who occupies a very responsible office in the State, a comparatively young man, who had to go before a tribunal like this. He was much younger then, of course, little more than a boy, a boy, though, of more than ordinary intelligence, and whose career since then has shown that he had a brilliancy in certain directions that has been a very great service to the State. He did not know when he was called up before this tribunal what course he ought to take. He did not know what he ought to do. He had no idea of what his position was, and he admitted quite frankly to those of us who happened to be associated with him then that he did not know what to do when he went in. He had no one to advise or direct him, and, of course, the only thing he could do was to turn to those who happened to be prisoners with him. I would urge strongly that the Minister should not leave consultation merely to fellow-prisoners of a man like that, because the purpose that he wants served by the Appeal Council may be defeated by wrongful advice, perhaps wilfully and deliberately given, to prisoners by their fellow-prisoners who take a certain line inside a Court that would not be to the good of the State or the prisoner or anything else. That has happened before, I know, but in quite different circumstances. The circumstances at present ought to be taken into account, and a prisoner should not be left to the mercy of the suggestion merely of his fellow-prisoners, but should have opportunities of consultation and advice with somebody else in whom he would have confidence, and who would give more independent and unprejudiced advice than his fellow-prisoners.

The Minister has mentioned that the majority of the prisoners arrested under this Bill have been arrested on suspicion.

Mr. O'HIGGINS

No prisoners have been arrested under this Bill yet.

They will be, or dealt with under it, and it is to enable people to dispel this suspicion, to enable them to prove that they are innocent, that we are asking him to accept this amendment. Surely that is not too much?

Mr. O'HIGGINS

I regret I cannot make any concession in this matter. It is what a prisoner has to say for himself, and not what his wife, brother or sister has to say for him, we are anxious to get at, and we have set up this body as a medium for his saying that to the Government. That is about what it amounts to. This body is a buffer one between the two parties, the Executive and the person whom the Executive believes it to be necessary to detain for a period in the public safety. He can go before this Council, and he can say what he wants to say for himself. He may endeavour to show that he is not the kind of person that it is at all necessary in the public safety to detain, that he was not connected with outrage or lawlessness generally, or with, possibly, the particular act of outrage that he may be told he is believed to have been connected with. But it is what he has to say for himself, not what some solictor thinks he might stretch a point and say for him, and not what his wife or next relative may say for him or advise him to say, but simply what the man has to say himself to the Government through this body.

But what about what his enemies, who brought him into that position, will say about him? It is to combat that we are trying.

Mr. O'HIGGINS

He has got to make an impression on three impartial men sitting there to hear what he has to say as to why he should no longer be detained, or as to why he should not have been arrested. You may take it, if he puts up a reasonable case, and that at least a recommendation would come along, that the case should be further and very closely scrutinised and inquired into, and there would be of course the possibility of there coming from that body a recommendation that that man should be released. There are amendments that that recommendation should be absolutely mandatory. That would give this tribunal the complexion of a Court. There is no reason to believe that the recommendations of that body would be lightly overruled just because it is not a Court. We do not propose to make these recommendations binding on the Executive.

That would be all very well if we had some experience of the manner in which the Appeal Council was carrying out its duty. We have not had so far that experience. It is all very well for the Minister to say that what they want is to hear what the man has to say for himself. But before any such tribunal, I submit that a good deal will depend on the form in which the man says what he has got to say for himself. Many a prisoner may have a great deal to say for himself, but he may not, for one reason or another, be able to put it in the form most effective and most appealing to the judgment of the tribunal. He may have a great deal to say, and yet may not be able to assemble the different parts of what he has to say in such a way that he would present a reasoned case to a tribunal. I think that the Minister can see that there is point in that. One of the extraordinary things to some of us who had experience of a somewhat similar tribunal was that certain people, whom we knew to be well worth, at all events, an unfavourable decision from the tribunal, were released on the advice of that tribunal; but a great many more, who were much more notoriously to very many of us completely innocent—many were absolutely innocent of any kind of offence except the kind that I mentioned a while ago in dealing with another amendment—were detained for the full duration of detention at that time. Some of us made a rough-and-ready examination to try and arrive at the reasons for this, and we came to two or three conclusions. One was that sometimes a Council might be more, not exactly "getatable," but more lenient or more generous on some days than other days for some reason or another. Perhaps it was because its personnel changed slightly from time to time. But one of the conclusions we came to that seemed to go some distance to explain the decisions of the Court was that certain people, to our knowledge, were able to put their case in a very good form, and in such a way that they were able to put up a convincing case, while others who had a much better case were not able to put their case in a convincing form. There is much more in the form than the Minister seems inclined to agree to, and I would ask him to reconsider that particular point because it is of importance. Many a good case is spoiled by the form in which it is put.

There is another reason, perhaps a reason which concerns the Minister himself or whatever other Minister will be called on to review the report of this tribunal, as to why these cases should be thoroughly inquired into. The clause stipulates that whatever decision the Appeal Tribunal may arrive at is subject to review by the Executive Minister, It says: "... having considered the report of such Council, is of opinion that the public safety would be endangered by such person being set at liberty." If the Minister, by accepting this amendment, agrees that the prisoner who is trying to prove his innocence, and who if things were right, should be treated the other way about, allows a legal representative to appear on behalf of the prisoner, or, on the other hand, acting on behalf of the Government—as I presume they are appointing an individual—there will be two legal men. I take it, in such circumstances, whatever legal quibbles would be at stake or raised by the Council or Appeal Court, would be thrashed out to a conclusion, and the Minister would thereby be relieved of the responsibility or trouble of reviewing the case that would have been thrashed out from the legal and from every other point of view concerning the detention of the prisoner. I think that is an additional reason why the Minister should not persist in refusing to accept an amendment of this kind.

Amendment put.
The Dáil divided: Tá 13; Níl, 31.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dubhthaigh.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Éabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Seán Ó Maolruaidh.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Deasmhumhain Mac Gearailt.
  • Peadar Mac a' Bháird.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • 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.
  • Próinsias Bulfin.
  • Séamus Ó Dóláin.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
Amendment lost.

I would suggest, provided the suggestion meets with general approval, that there should be a short adjournment of an hour. It is quite evident that the Minister who is in charge of the Bill, and those of us who are responsible for amendments, are not in a position to leave our places, and therefore I suggest such an adjournment.

Mr. O'HIGGINS

There is no agreement on that.

Amendment 25 is not being moved.

I beg to move:—

"In Sub-section (3) to delete all words from the word ‘and,' line 56, page 3, to the word ‘liberty,' inclusive, line 7, page 4, and to substitute therefore the words: ‘and such Council has reported either (a) that the reasons given for the detention of such person are not adequate to justify his detention without trial; or (b) that, having regard to the period during which such person has already been detained, there is not sufficient reason for continuing his detention, then, immediately upon receipt of the report of the Appeal Council, the Executive Minister shall cause such a person to be set at liberty.’”

The object of the Appeal Council in this case would be not even yet to act as a Court, but to consider the case that has been put forward by the Minister, the grounds of suspicion, the grounds of detention, and presumably to examine the prisoner in his own defence. Having satisfied themselves that there is no case for further detention, they shall report such fact that there are no grounds for further detention, or that, supposing there were originally some grounds for detention, that the grounds are so trifling and that the circumstances have changed in such a way as to make detention no longer reasonable. On receipt of such a report the Executive Minister shall cause such a person to be set at liberty. If the Appeal Council is to be composed of three persons, men or women, one of whom shall have had legal experience, and is to have the evidence which originally justified in the mind of the Minister the detention, and an opportunity of hearing what the prisoner had to say for himself, and if that Council has no grounds for recommending continued detention, or, on the other hand, has positive grounds for recommending release, it seems reasonable that such a person should be released. The Minister has described this Council as being something in the nature of a go-between between the Executive and the prisoner. I presume he did not mean to suggest that it was merely a channel of communication, but that it was a body which he intended would have at least common-sense and discretion, and would be capable of forming a judgment as to whether further detention without trial was justifiable. The Minister proposes to reserve to himself the right to say whether the tribunal he has set up is a competent one. He proposes to reserve to himself the right of saying whether he was wise or unwise in setting up that Council. I am going to presume, and I ask the Dáil to presume, that the Minister, when he sets up such a Council, will have satisfied himself that the people constituting that Council will have at least an average amount of discretion, that they will be capable of discriminating as to the case the Minister puts before them regarding the prisoner, and having tested the case by the appearance and bearing and the evidence that the prisoner himself submits to prove his innocence, that they will be competent to declare that this prisoner should no longer be detained, and that thereupon he should be released. Notwithstanding what the Minister has said in regard to earlier amendments, I think he will see the justice and the reasonableness of this proposition.

This amendment covers the two principles that are involved in the next three amendments standing in my name. As I have some doubt whether, if this amendment were defeated, it would be open to me to move the amendments I have put down with the same object, and as I have no desire to waste time in, going twice over the same ground, I propose to support this amendment with the arguments that I had intended to put forward in support of the amendments in my own name. The wording of this amendment differs to some extent from mine, and perhaps goes a little further. The two real principles involved are these, (1) that the onus should not be put on a man who is merely detained on suspicion of proving that there is no reasonable ground for that suspicion; (2) that when the tribunal that has been set up by the Minister to inquire into the question whether there are or are not reasonable grounds for detaining the prisoner has reported that there are none, it does seem to me to go far beyond justice and far beyond the necessities of the case that when, after investigating all the reports that the Minister has placed before him, they come to the conclusion that there is no reasonable ground for detaining a man, that he should nevertheless be kept in custody. The section as it stands does these two things, although they seem to me to be contrary to justice, (1) that a man who is merely suspected should have to prove that there is no reasonable ground for suspicion, (2) that when he has succeeded in doing that he should nevertheless be detained at the option of the Minister. I do think, with every desire to support the Government in all reasonable and even in some unreasonable methods of dealing with the present situation, that this goes too far. I do suggest that when the Appeal Council, having investigated all the facts, finds itself in a position to report that there is no reasonable ground for detaining a man, that that decision ought to be adopted. I think that every word that the Minister said on that amendment with regard to the constitution and modus operandi of this Appeal Council supports the view I am putting forward to the Dáil. They are not to be deluded by the subtleties of lawyers. There are to be three reasonable people appointed by the Government, I have no doubt, with every desire to support the cause of law and order and to maintain regular government in this country. I have no doubt that after the reports that will be put before them—because the previous amendments decided that they were to have the reports upon which men were detained—if they see there is nothing to be found in these reports, and nothing to be found in the statement made to them by the responsible Minister, that, being reasonable men, and coming to the conclusion that there are no reasonable grounds for detaining the prisoner, he ought to be released. The wording of this amendment goes beyond mine in this, because it goes on to provide that if he is detained for a certain period the Council may deem that a proper cause for release. I do not go so far as that, but I would go so far as to say that, as the Minister says the prisoner is in reasonable detention, it would be for the Ministry to say how long he shall be detained, and not the Appeal Council. I am inclined to support that view. But the two vital principles in this amendment, and which induced me to put down my amendment, are that, although we are far from the position that a man is presumed to be innocent until he is proved to be guilty. I think if the people who detain a man can show no reasonable grounds for suspecting him, then he ought to be treated as a person free from all suspicion and therefore ought to be entitled to get out; and if, having failed to discharge the onus of proof that there are some grounds for suspecting him, they ought not to be put in a position of overriding the decision of their own tribunal and declaring that the man must still remain in custody. I support this amendment, and I trust that even if the second clause of it does not meet with the approval of the Minister in charge of the Bill he still may give us some release as regards the first clause, and, secondly, as to the power of the Minister to override the decision of his own tribunal.

I suppose I may be regarded as more or less interested in this matter. I am going to vote against this amendment, because I know the difficulties the military authorities have even in dealing with prisoners. I know there are several prisoners in custody at the present time against whom I could prove several charges of loot, robbery, and arson and other things, and the only reason I do not do it is because I would get somebody else into trouble. That has happened all over the country and in Dublin. People have looted property and stolen motor cars, but the people who know they have done it will not come forward and give evidence in public, and the reason is because they think they would be shot the next day. I know, at the present time, that we have in custody six or seven people against whom I could formulate charges, but I could not conscientiously ask witnesses to come forward and prove them. I simply cannot do it. I am in trouble enough myself, and I do not ask other people to walk into trouble. What is the use of talking about reasonable suspicion? You cannot prove it, and it is not fair to ask people to come forward and prove it. I shall vote therefore against this amendment.

Mr. O'HIGGINS

Deputy FitzGibbon said there are really two principles in the amendment, and that is correct. There is the principle of whether we are entitled, in any circumstances, however grave, to put upon detained persons the onus of showing cause why they should not be detained, rather than take upon ourselves the onus of showing why they should. That is a matter that has been referred to over and over again on this Bill, and runs right through the whole Bill: that is, the question of detention upon anything short of legal proof. Now, I would like to meet Deputy Johnson and Deputy FitzGibbon by throwing (a) into a positive, rather than into its present negative form, but on (b) I am afraid I could make no concession. Dealing with (a) first “wherever an Appeal Council has enquired into and reported on the case of any person under this section and either—(a)—such Council has reported such person has failed to show that there is no reasonable ground for suspecting him of having committed or being engaged or concerned in the commission of any of the offences mentioned in the Schedule to this Act.”

That is reading it as it stands now. We must remember that such a person was arrested and detained because an Executive Minister was satisfied that there was reasonable grounds for suspecting him of having committed offences mentioned in the Schedule, and this body is set up with a view of enabling the prisoner to rebut that suspicion and to show that he is not the kind of a person who should reasonably be detained as a matter of public safety. That is why (a) is in its present negative form, because it would amount to reporting from this Council that the detained person had failed to throw off from himself the suspicion on which he was arrested.

Now I would like to meet, as far as I possibly could, the objections that have been urged, and I would be prepared to consider some such reading as this:—

"Whenever an Appeal Council has enquired into and reported on the case of any person under this section and either—

"(a) such Council has reported that there are reasonable grounds for suspecting him of having committed or being engaged or concerned in the committing of any of the offences mentioned in the Schedule to this Act.”

That is, that their report would be positive confirmation of the suspicion upon which a person was arrested rather than a report to the effect that the person did not clear himself of such suspicion. I think myself that the negative form is in the circumstances reasonable. A B has been arrested in a time of crisis because the Executive Council of the country which is responsible for public safety considers him reasonably suspected of having committed certain grave offences, which offences being for the most part the methods by which a campaign against the State and the citizens may be conducted, we set up this body, and we give to detained persons an opportunity of clearing themselves of this suspicion, and I think it is not unreasonable to say that they shall be continued to be detained unless that body reports that they have cleared themselves. That is what it means as it stands.

I would like to go a little further and put a more positive burden on (a), and make the Section read: “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 there are reasonable grounds for suspecting him of having committed or being engaged or concerned in the committing of any of the offences mentioned in the Schedule.” If I put in that positive wording I would insist upon (b) as it stands, and the section would go on to read: “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 at liberty, any such person may be detained,” etc.

Deputies may think that that is treating the Appeal Council very lightly, and, of course, there is the obvious point to make that we ourselves set up this Council and selected its personnel, and that it seems a strange thing to refuse to bind ourselves by its recommendations. But there is this: Deputy Johnson the other day spoke of "public safety." He took the two words "public safety" and made play with them, and asked for a definition of them. I did not reply by saying that it was the safety of the public, or anything of that kind. There is this about it, that the Executive Council, for the time being, must be the judge of it, and must be the judge of what it demands in particular cases and in a particular set of circumstances. We could not, even to this Appeal Council, leave the absolute last word on the matter. As I say, I do not really expect that any recommendations from that body would be ignored or overruled, and yet I would not concede the right to overrule them, because to concede that would be to concede to a body that has no mandate from the people, or any responsibility to the people, the right of saying the absolute last word on what the public safety requires. It may be academic or theoretical, but there is just that about it that it ought not to lie with a body of this kind; in such circumstances as we have in the country at the moment, to say absolutely that the public safety does not require the detention of A B. If a change in (a) of that section would meet Deputy Johnson or Deputy FitzGibbon, or both, I will be glad to insert some such change on the Report Stage, but I could not concede the other principle that Deputy FitzGibbon has urged —that we should say, in such a situation as the present, it will lie with some Appeal Council which we will set up to say the ultimate “yes” or “no” on the question of prisoners' releases. It might well be that there would be circumstances which would prevent us from putting before such a Council absolutely all the information that would be at our disposal with regard to a prisoner. It might well be that for sufficient reasons, for very good reasons, we would find it incumbent upon us to withhold and to lay only a partial report, or a partial dossier of evidence, before this Council. There might be an item, and a very grave item, which it would be considered necessary to withhold. In such times as the present Deputies will perhaps understand that point. Deputy McGarry touched on it. The Executive Council for the time being must always be the judge of this vague thing called “public safety.” That is their peculiar function. If they judge it wrongly or unwisely, and consistently show an inability to appreciate what it is and where it lies, then the representatives of the people would take appropriate action; but for the time being, and while in office, they must judge it rightly or wrongly, and they cannot delegate to such a body as this Appeal Council the power or the right to judge it.

The Minister in his speech seems to me to have agreed substantially to accept Amendment No. 28, but he refuses to accept Amendments 27 and 29.

These would be the exact words if Amendment 28 be accepted.

In regard to what Deputy McGarry said, no one suggested that the Ministry should prove the guilt of any detained prisoner to the Appeal Council. All that they are asked to do is to prove that they have reasonable grounds for suspecting him, which is a very different thing indeed from proving that he is guilty. He has not got to do what the ordinary prisoner in the dock, in the ordinary case, may have to do when a case is established against him, and that is to prove his innocence. He has got to go a good deal further than any criminal was ever asked to go, and that is to prove not only that he is innocent, but much more than that, to prove that no reasonable person ever suspected him of being anything else but innocent. To put that onus on any man seems to me to go far beyond the limits of even the grossest injustice. I am very glad indeed that the Minister has seen his way at any rate to modify Sub-head (a) to the extent that he has outlined. I have no desire to press amendments to divisions merely for the sake of recording my vote one way or the other. But what I want to do is to get as much reasonableness into this Bill as I can, and if I cannot get more than what the Minister has offered I will take that with modified thankfulness. As I say, I am not moving my amendment at present, but I am supporting the amendment moved by Deputy Johnson. When my own amendments come on I will ask leave, if the first amendment is defeated, in view of what the Minister has said, to move Amendment 28.

Deputy McGarry assumes that these Appeal Councils would be Courts where it would be necessary for him or any other person with information at their disposal to bring forward people in order to prove charges against prisoners. There is no necessity to labour that point, because the Minister takes an opposite view in so far that he does not agree that it is a Court. The Minister referred to this vague thing called public safety. That is a thing that I have in my mind all the time when dealing with people detained or interned on suspicion. I know a few people at the present time who are enjoying the hospitality of the Free State Government in Tintown.

As far as I know, and I know one of them very well, they could never be accused of anything more than blowing off a lot of froth and steam. Simply because in their excited moments they may say something they are to be taken up for that. It might not be a crime to say that I am a rotter or a danger to the public safety or a tool of the Government, but it would be a crime if, in his excited moments, an individual said such a thing about the Minister. Possibly it might be set up as a charge against him that he was a danger to the public safety. I think you are placing a rather extravagant interpretation on the patriotism of such a gentleman by detaining him, at the hospitality of the Executive Council, at the Curragh. I know of a few gentlemen who go about shouting their anti-Government ideas and nothing more. I do not think they could be accused of having the courage to go into active opposition to the Government. That is the class of people you have to cater for in the amendment we move, and there should not be any necessity to detain these people, if at all, a day longer than would be necessary to give them the means of being accused by you and an opportunity of defending a charge before the Appeal Tribunal.

It seems to me the Minister must have had some object in putting this Appeal Council into the Bill. He must have expected these Councils would be availed of by those held in detention. If he expects they will be availed of there should be some measure of confidence inculcated in the minds of those detained to the effect that their decisions will carry some weight. If by refusing this amendment and by the statement he has made, the Minister makes it clear at the outset that, no matter what the Appeal Council will decide, he will still retain the right to hold the prisoner——

Mr. O'HIGGINS

The right.

I foresee that what will happen will be that none of those people detained will approach the Appeal Council. Most of the Deputies know that as regards the Sankey Commission which was set up under the British regime, very few people availed of it, although there was nothing more wrong with it, from the point of view of the people with whom we are dealing appearing before it, than there would be in appearing before this Tribunal from the point of view of the people who will be dealt with under the Bill. In the North of Ireland some of the prisoners who were detained in the "Argenta" did, at the beginning, appear before these Appeal Councils, or somewhat similar bodies that were set up there, and they very soon found that, even though they did appear, nothing came of it. After that had become manifest to those detained, there were no more appeals. I submit it would be just as well that the Minister would omit the Appeal Councils altogether from the Bill and not set up a pretence of a Council, which he is making plain will really have no effect.

Mr. O'HIGGINS

Surely the Deputy remembers that I said I did not foresee or anticipate that a single recommendation of this Council would be ignored or overruled, and that it was merely a technical right that had to be preserved of deciding, in a matter of public safety, whether a prisoner would or would not be released.

I am pointing out that it will have no effect, and it will not be availed of, simply because the Minister has said, and is now saying, in effect, that he still retains the right, no matter what the Council decides, to keep the prisoners.

Mr. O'HIGGINS

It is an advisory body.

That is why I say it would be as well to leave the Councils out altogether.

Mr. O'HIGGINS

If the Deputy puts down an amendment to that effect, I will consider it.

It would be, to my mind at all events, a more honest dealing than setting up a Council which he makes by his statement nugatory.

I think this is a point that the Minister on behalf of the Executive cannot concede. I think the Minister is responsible to the Executive, the Executive is responsible to Parliament, Parliament is responsible to the people, and the people have the controlling power. If a certain case of individual hardship should by any possibility arise, it could be brought before the Dáil, and the fact concerning the prisoner's detention could be submitted.

The Dáil could have submitted to it such particulars as may be required in any case in which there may be some doubt as to hardship imposed on a prisoner. This is not a tribunal that we can exactly describe as the tribunal to which Deputy FitzGibbon referred. Such a tribunal would be based upon juridical status, and would have all the rights to decide as to guilt or innocence. This is merely a tribunal that inquires into how far a person is reasonably suspected of being dangerous to the State. It is not concerned so much with the guilt or innocence of the prisoner as it is with his liability to be dangerous to the State. I think when the Minister has removed the first portion of it, to which I was myself opposed, the second part, in so far as it will not and cannot involve more than a slight percentage, if any percentage, of persons being detained after the Appeal Tribunal has decided that there was not sufficient evidence to justify them in saying there was reasonable ground for suspicion, is satisfactory. It may be there will be cases in which there are facts that cannot be brought forward. These things will arise. The Executive will feel some responsibility in the matter, and their responsibility is to the nation and to Parliament, and they cannot throw away their right to veto in a case of the kind, because some particular control must repose in some head or Executive with regard to special cases like those. Under the circumstances the tribunals are not judicial tribunals in any sense. They are merely inquiry tribunals, and their recommendations would be based on what is put before them, and it may not be possible to put all the facts before them at all. I think the amendment which the Minister has decided to accept will make the clause quite safe for its being accepted by this Dáil. The Dáil will be careful not to sanction anything that is unduly harsh or likely to create hardship on any individual. I am sure that is not the intention, and I am sure the Dáil will take proper steps that these things will be dragged forth.

I am sure that the ordinary conditions that attach to all Parliaments will make it possible for any Deputy to have a case of hardship, if such come under his notice, brought here before this Dáil, the tribunal of the nation.

How will we know about them?

We can demand full particulars at any time by a combined desire on the part of the Oireachtas to inquire into any particular case of hardship that might arise, and inquire why a Minister should maintain a position which would seem impossible to be maintained. I think that is sufficient protection against hardship being inflicted. I think the Executive must hold a veto in this matter.

Deputy McGoldrick has brought, up again the illusory prospect of eliciting facts which neither the Minister in charge of the Bill nor any other Minister is going to disclose to the Dáil any more than to the Appeal Council. Deputy Gavan Duffy dealt yesterday with the illusory nature of the bringing of a case before the Dáil. Supposing the Appeal Council has advised the Minister that a certain prisoner should be released; that the Minister, for the reasons he has stated here several times this evening, has not put that Council in possession of all the information, or perhaps I should say all the suspicion, in his possession, and the Minister, in the face of the Council's recommendation, decides to keep the prisoner, Deputy McGoldrick then seems to think that it would be possible to bring up a case before the Dáil and to get much more satisfaction from the Minister in the Dáil than either the prisoner got when before the Council or than the Council itself got. That shows tremendous faith not only in the ability of the Dáil, but in the ease with which the Minister, or any Minister, will submit information at the request of the Dáil. Those of us who have had occasion from time to time to bring up the cases of prisoners in the Dáil have found that we have been able to get very little information indeed, except "that in the interests of public safety it was not considered advisable to release so-and-so." No more. But the Minister has said that he cannot foresee that these sub-sections which Deputy Johnson is seeking to amend will be applied in all their severity. But we have, none of us, any guarantee that that will be so. The Minister himself has no guarantee. He might have some guarantee, and the Dáil might have some guarantee if the Bill were to complete its course and expire before the General Election, but that is not likely. It may be that the present Ministry will become the new Ministry under the new Dáil. It may not be. It may be strengthened or weakened by combinations with somebody else. It may, on the other hand, even be in a minority, in the new Dáil. None of us know. Therefore, the promise from the Minister now, that certain things will not be done under this Bill, does not hold good, because he can give no promise for an Executive Council which comes in within the next few months. There is no really pertinent argument in turning round and telling Deputy O'Connell that if his opinion is that it would be much better that there was no Appeal Council than that their powers should be so little, he should move an amendment for the deletion of the provisions dealing with the Appeal Courts on the Report Stage. The amendment, as proposed by Deputy Johnson, is a serious amendment, an effort to establish certain principles, and to get practices corresponding to those principles in the administration of the Bill. To some extent the Minister has gone a little way to meet part of the intention. He has not gone the whole way. But I would urge on him and I would urge on the Dáil to consider, not only the case that has been made by the amendment as a whole, but particularly the need, as Deputy O'Connell has pointed out, for imbuing internees and prisoners with the idea that they are going to get at least a fair crack of the whip.

Hear, hear.

I submit that that is out of order until the next Section.

In the Six-Counties, as Deputy Johnson has said, there is no confidence whatever in the Appeal Council. In the Sankey Committee there was no confidence. If the powers of this Appeal Council are to be so limited as the Minister said, then there can be very little confidence, and there can be no inducement whatever to a prisoner to make an appeal to it. The Minister frankly and fearlessly admits that he may have up his sleeve, information which he cannot give to the Appeal Council. It may be a prisoner meets with the suggestion that he should take his case to one of these Councils. It is presumed that when that suggestion is made to him that he is told all about their powers. He may be told, or if he does not know, he ought to be told, that while they have a good deal of information about him, the Minister may have more information about him, and though even they decide he has made a good case, and recommend that he should be released, yet the Minister, either in virtue of the information which he has not disclosed, or for some other reason, can still decide to keep the prisoner in detention. Can anyone imagine that the bulk of the prisoners faced with a situation like that, could have any confidence whatever in the Appeal Council? No, they will simply say "It is bluff, they are pulling our legs, it is making a pretence of doing something for us without doing anything for us, the best thing for us to do is to ignore this Appeal Council altogether."

I frankly say that it would be much better not to have Section 4 in the Bill at all in its present form. The Bill is far better without it. For one thing, the Section as it stands, unless it is amended in the form desired, simply suggests that the Minister wants an appearance of relieving himself of responsibility. He can at least appear to throw some responsibility for the non-release of prisoners who have appealed to the Committee. There is nothing to show what the report of the Council will be to the Minister, and at least there will be good grounds for thinking that the report was unsatisfactory, even though it may have been satisfactory. The prisoner is damnified having once gone before the Appeal Council, and not having been released the public will have a right to assume that there is more in the charge than they believe. Yet the Council may have said: "No, there is no evidence to connect this man with malpractices or any association with malpractices." The Minister reserves to himself the right to say, notwithstanding what the Advisory Committee may have said, notwithstanding what the Appeals Council may have said: "we are going to detain this man," and nothing more is to be known except the inference is to be drawn that they have something up their sleeve. I wonder whether, when defining the composition of these Councils, the Minister had in his mind the probability that eminent judicial gentlemen would not be likely to serve on Councils of this nature. All he asks is, that one of them is a person certified as having legal knowledge and experience. I take it that the Attorney-General will be expected to have proper consideration for his profession, and he will be sure that the person whom he nominates will be either a qualified solicitor or a practising barrister. He may only be a very minor one waiting for promotion, waiting for experience, and it may be that only minor ones will be willing to serve on a Council which has such limited power and authority, in which neither the public nor the prisoner nor the Minister himself has any confidence. The Minister confesses that, in paragraph (b) which he refuses to alter. I submit that to make this section of any value at all it requires amendment, such as that which is proposed. Not merely is that required to make the section of any value, but if something of that kind is not proposed the section itself would be very much better deleted, very much better for the prisoner and for the public. I think that it would ensure that the Ministers would have to bear the responsibility and not transfer it by inference to the Appeals Council. Deputy McGoldrick repeated his suggestion which he made one day recently, about the reliance upon the Ministry, the check the Dáil might have upon the Ministry, and the check the public will have upon the Dáil.

That is very pleasant, and I am sure that the Minister immediately reminded himself of his famous criticism that he is so used to in the Dáil, and he was eager to call upon Deputy McGoldrick not to deal with theories, but to deal with facts and common practices, facts of life round about us, and not to be thinking of the ultimate responsibility of the electorate for the conduct of their representatives, and of the representatives for the electorate, and the responsibility of the Ministry for their subordinate officials. Undoubtedly, the Minister said "That is a lovely theory, but, in practice, it does not happen," and I ask Deputy McGoldrick how he is going to bring the case of a prisoner, whose case had been heard before the Appeals Council, the Council's decision having been over-ruled by the Minister, before this Dáil? He would need to have access to the prisoner. He has not got that, but is seeking to get that. Only after the expiry of the Act, and the expiry of the period of detention would it be possible for Deputy McGoldrick to bring the case of that prisoner before the Ministry through the operations of the legislative chamber. Of course, it is always possible for a majority to turn out a Ministry. That is very little protection for the innocent prisoner whose innocence has been provable to the Appeals Council, and evidence of whose guilt is alleged to be contained in the archives of the Ministry. There is not much satisfaction to the prisoner in a vote of want of confidence in the Executive Council. One does not want to quote Dr. Stockman and speak of the "damned, compact majority," but one might well think of "the blessed compact majority" which believes that greater evil will result from the effect of want of confidence than from the continued detention of a prisoner. That is quite a reasonable proposition. We ought not to be weighing up the rights to detain a prisoner who may be innocent with the risk of throwing out the Executive Council, and that is the only check that Deputy McGoldrick says that we have. This Bill, when it passes, will not be the Bill or the Act of the Executive Council. but the Act of the Oireachtas. It is not enough for the Ministry to assure us what their intentions are. It is not enough to say, "we intend that such-and-such a thing shall take place." There is no need for a Bill to do that. They have power to release now. There is no need for a Bill to give them power to release. There is no need for Section 4 to set up an Advisory Committee to advise whether a person should be released or not, unless they bind themselves to take the decision of that Committee, and release the prisoner on receiving their judgment that there is no evidence of guilt. The Minister, all through this Bill, has based his case upon the contention that they must have the right to intern without trial. He claims that right, no matter whether there is prima facie evidence of a man's guilt or not. Even though the Advisory Council decides that there is not, still, he wants power to detain a man against whom there is no shadow of evidence. All power to the Ministry! All power to any Executive Minister! Talk about all power to Soviets! Talk about the dictatorship of the proletariat! That is the dictatorship of a single Minister, if you like. He asks the Dáil to agree to the setting up of an Appeals Council, an Advisory Committee. Having set it up, even though he declares there is not a particle of evidence to suspect the prisoner, he says, “I am going to have power to detain and intern that innocent man.” This is supposed to be a transitory period between the period of revolution, of warfare, a period of armed rebellion, and a period of peace. It certainly would be much more frank and much more reasonable to come and ask for power to do anything with a citizen for at least six months, or for at most six months. If you intern a person who is, in effect, proved to be innocent, you may ask anything imaginable. Deputy O'Connell referred to Belfast, but I am pretty confident that they did not dare to go to the Belfast Parliament to ask for any such powers. They may take them. They may use them, but they would not dare to go even to the docile Parliament there to ask for those powers. The Minister has no hesitation, apparently, in coming to this Parliament to ask for those powers, because, feeling confidence in his own integrity, his own bona fides he thinks that is all that is at stake. It is conceivable that others may sit in those seats, and it is conceivable that, once this Oireachtas has embodied this kind of legislation in a Bill, a different Ministry, in a few years time, may say, “here is a precedent for us, and we may ask our docile majority to do the same.” It is not wise for this Dáil to embody this kind of thing in legislation. It would be very much better for them to strike it out and say, “We will use the power that we have, and we will risk the consequences of the use of that power without trying to ride off under the cover of an Appeals Council.”

I had intended to wait until the Section itself was under discussion, and to say nothing upon this series of amendments, for reasons which will be sufficiently obvious to Deputies, but there is one point raised on a statement made by the Minister which should not go by default in connection with this particular amendment. The Minister seeks to justify the procedure of not undertaking to abide by the decision of an Appeal Tribunal, upon the grounds that there may be some confidential report dealing with the case of a prisoner, requiring that prisoner's incarceration, which the Executive Council would not feel justified in placing before an Appeal Council, everyone of whose members they will themselves have selected. I have not been present during the whole of the discussion, but, if I mistake not, the Minister himself accepted Amendment 22.

I think I am right in supposing that the Minister has, accepted Amendment No. 22, and that amendment said that in an inquiry under Section 2 the Appeal Council shall—meaning must—be furnished with reports or certificates in virtue of which the person whose case is being inquired into is being detained. That can only mean that the Minister has agreed that all the grounds for detention of a person detained on suspicion without trial are to be laid before this Appeal Council. He would not be observing the terms of Amendment No. 22 if any material report——

Mr. O'HIGGINS

I did not speak about report.

The Minister used the word "report."

Mr. O'HIGGINS

I used the word "information."

But if he had only used the word "information," the position would be just the same, because the object of Amendment No. 22 is to secure that the Appeal Committee shall know why a man is interned. That is the only object of it—that in an inquiry under that Section the Appeal Council is to be furnished with the reasons for a man's internment. It is expressed in the words, "reports or certificates by virtue of which a person is interned." Surely the Minister for Home Affairs is not going to tell us that some private reason of State, over-riding other reasons, may exist and that he will be justified in the face of that amendment, which he has accepted, in withholding that private reason, and in putting before the Appeal Council reasons which are only partial, and which are not the full grounds upon which the Executive relies. My object in referring to this particular matter is that it seems to me, the Minister's statement is a negation and contradiction of the amendment which he himself accepted. I do not think that he can have it both ways. If it is right that the Appeal Council should be furnished with reasons let them be furnished with reasons and not partial reasons. I hope that the Minister on reflection will realise that the contradiction is quite apparent and quite indefensible.

at this stage took the Chair.

Amendment put.
The Dáil divided: Tá, 15; Níl, 34.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Liam de Róiste.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhhaigh.
  • Liam Ó Briain.
  • Gearóid Mac Giubúin.
  • 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.
  • Uáitéar Mac Cumhaill.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Mícheál de Stáineas.
  • Domhnall Mac Cárthaigh.
  • Sir Séamus Craig.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Próinsian Bulfin.
  • Séamus Ó Dóláin.
  • Seán Mac Eoin.
  • Próinsias Mag Aonghusa.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
Amendment declared lost.
Amendment 27: "In sub-section (3), line 56, to delete the word `either."'

I do not move amendment 27.

On a point of order, is it necessary for a Deputy to get the sanction of the Dáil before he withdraws an amendment?

I did not withdraw the Amendment. I did not move it.

The Deputy himself has answered the question. He has not moved the Amendment.

If the Deputy in whose name the Amendment appears does not move it, can another Deputy move it?

Not without authority from the Deputy concerned.

That has not been the ruling.

Amendment not moved.
Amendment 28 "In sub-section (3) (a), lines 57 and 58, to delete the words “such person has failed to show that' and to delete the word `no,' line 58, and in line 61 to delete the word `or.”'

I beg to move Amendment 28. I have already said all I have to say in connection with this Amendment, and I understood the Minister to say that he was prepared to accept this Amendment, with the exception of the last three or four words. At least, he read out words that seemed to me to be identical with Amendment 28, and the Ceann Comhairle pointed out that the Amendment read out was identical with the terms of this Amendment, with the exception that the word "or" was not to be deleted. That would mean that the Amendment would read "in sub-section (3) (a), lines 57 and 58, to delete the words `such person has failed to show that,' and to delete the word `no,' line 58,” and stop there.

Mr. O'HIGGINS

I accept that.

I think the amendment as it stands is one that ought to be submitted to the Dáil. The sub-section, if this amendment were carried, would read:

"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 there is reasonable ground for suspecting him of having committed or being engaged or concerned in the commission of any of the offences mentioned in the Schedule of this Act, or,

Then (b) would follow. The case made by the Deputy in the previous discussion seems to me to prove the necessity for having this amendment in the form in which it is, and with the deletion of the word “or” at the end of the paragraph retained. We have not yet come to the next paragraph and we have a right to assume that there is, at least, a chance, despite the opinion already expressed by the Minister, that (b) will not be pressed. If we retain the word “or” now it will assume that there is something following, whereas if the amendment in the form in which it is printed is carried, there is no conjunction and we will be grammatical, at any rate, when we exclude paragraph (b). I would urge that the amendment be put in the form in which it has been placed on the paper.

I would urge the Deputy not to press that. We have got a promise of something, and if the amendment goes to a vote I am afraid we might, while grasping at the shadow lose the substance.

I am of the opinion that there is room in the amendment for improvement, as suggested by Deputy Johnson. I think Deputy FitzGibbon is of the opinion that "a bird in the hand is worth two in the bush." That might be his point of view. But I think the amendment ought to be put to the Dáil as suggested by Deputy Johnson. I do not see why the mover of the amendment should accept half the substance and throw the other half away.

I rise to raise a question on a point of order. If this amendment is about to be put to the Dáil, would I be in order, supposing it were lost, in asking for your leave to move it without the last clause, deleting the word "no"? I think according to the Standing Orders the Ceann Comhairle can give leave for amendments to be moved which are not upon the Order Paper. I could put the matter in another way. Would I be in order now in moving with reference to this amendment the deletion of the last nine words?

I said that I was taking the amendment as received, and in that I have the last nine words deleted, and that is the amendment now before the Dáil.

That is all right.

The amendment that was circulated, and which was discussed, was the amendment that was on the Order Paper, and I submit that we have to come to a decision on that amendment, otherwise—I draw your attention to the importance of this—it may be ruled that in consequence a succeeding amendment will not be in order. It is of the greatest importance that the motion shall be put in the form in which it was circulated, because there is a consequential amendment that has to be discussed, and if the amendment is to be in the form which you have now indicated, and different from the form in which it was circulated then, in consequence, it will not be possible to discuss the succeeding amendment.

If it simplifies the matter I may state that I have no intention of moving the succeeding amendment.

Mr. HIGGINS

We might ease matters if I accepted the amendment on the Order Paper, and in the event of the succeeding amendment not being moved I would consent, on the Report Stage, that the word "or" between (a) and (b) should be deleted, because seeing that it governs the word “either” before (a), “or” is necessary and complementary on that if (b) survives. If (b) survives on the Report Stage I will have to add the word “or”; if (b) does not survive, then on the Report Stage I will have to move the deletion of the word “either” before (a). I would be quite willing to accept the amendment as it stands.

Amendment agreed to.

I do not move Amendment 29, A Chinn Chomhairle.

With permission I beg to move Amendment No. 29:—"To delete Sub-section (3) (b), on page 4, lines 1 to 3.”

There is no motion before the Dáil and Deputy Johnson is not in order.

I am making a motion.

Amendment 29 is not before the Dáil, and nobody has power to move that amendment without the sanction of the Deputy in whose name it stands.

I beg to suggest that your ruling is different from that to which we have been accustomed from the Ceann Comhairle. It has been quite a common practice to accept amendments sent in in the names of certain Deputies and moved by other Deputies. Apart from that, it is quite in order to accept amendments on Committee, even though notice has not been given. I rely upon the practice that the Ceann Comhairle has allowed. It is quite common that a motion, of which notice has been given by one Deputy, and which that Deputy is not prepared to move, should be moved by another Deputy. It has been the practice ever since the Dáil began its sittings and I think it is a desirable practice, and I submit it is not reasonable to change the practice on this occasion.

An amendment put in by one Deputy can be moved by another Deputy on his behalf at his request. The Deputy in whose name this amendment appears has refused to move it and therefore I think that Deputy Johnson cannot move it on his behalf.

May I point out that this is not treating the Dáil fairly. I do not mean that your ruling is not doing so, but I mean this practice, if it became the procedure. If an amendment or a motion is put forward by a Deputy then it is before the Dáil. Notice of it has been given and it has either to be withdrawn by leave or it should be subjected to discussion and decision. I think that that is undoubtedly the practice that the Ceann Comhairle has allowed.

Nonsense.

I am prepared to abide by the decision of Acting Chairman as against the interjection of the Minister for Local Government.

Is it in order for a Deputy to question the ruling of the Chairman and to make two speeches on the ruling of the Chairman? We all know quite well that you must have the permission of the Deputy in whose name the amendment stands.

I wish to draw the attention of the Chairman to——

I gave certain latitude in this matter, but I gave my ruling and nothing that I have heard would make me divert from that ruling. It is quite clear, and has been the constant practice all along, that a Deputy. if absent, in whose name an amendment is down on the Order Paper, can get another Deputy to move it on his behalf, but in this case the Deputy in whose name the amendment stands is in the Dáil and does not move it. Therefore, there is nothing before the Dáil. Amendment 30.

Mr. O'HIGGINS

I accept that amendment.

I submit that the amendment has not been moved.

I move that we delete the words "or outside" in Sub-section (3), lines 4 and 5.

Amendment agreed to.
Amendment 31 by

"To delete Sub-section (4)."

That amendment falls consequential on Amendments 16 and 20 being lost. Amendment 32.

I desire to move Amendment 32: "To add at the end of Sub-section (5) the towards:—Any such regulations shall be laid before each House of the Oireachtas as soon as may be after they are made, and if either House of the Oireachtas shall pass a resolution annulling or amending the regulations, the regulations shall be annulled or amended accordingly, but without prejudice to the validity of anything already done under them." I think it is obvious why this amendment is moved. It intends to give the Oireachtas an opportunity of discussing any regulations that the Executive Minister may make, and of amending these regulations if it is thought they are too drastic, or even if it is thought they are not drastic enough. I think the Minister should have no hesitation in accepting it.

I think it is very necessary that an amendment of this kind should be accepted in order that it might be seen whether or not the Appeal Council will be a real thing. It will not serve any useful purpose unless it be of such a character as to inspire those in custody with some confidence that they are going to get a square deal, and that the Appeal Council will have authority to give effect to its recommendations. This whole Bill is, quite obviously, founded on the Defence of the Realm Regulations, that many of the Deputies were unpleasantly familiar with in the early days of the European War, and some of the Ministers. The Minister in charge of the Bill, I think, had not the doubtful pleasure of making the acquaintance of the Advisory Committee set up under the jurisdiction of Judge Sankey. But you, Sir, and the Minister for Local Government, and, I think, the Minister for Defence could tell the Minister in charge some very racy stories as to the procedure adopted before Judge Sankey's Committee—which was called the Amusements Committee. I think you will agree it was not taken seriously, and it is possible that this Appeal Council proposed to be set up will not be taken very seriously by those on whose behalf it is to be set up. You will remember many of the prisoners were brought before Judge Sankey, a distance of a couple of hundred miles, to be asked trivial questions as to where they worked, and the number in their family, and so on, and this will turn out to be the same farce unless the people in custody have some idea they will get a square deal. I think it is necessary that these Regulations should be submitted here to see whether or not they faithfully carry out the intentions the Minister states is in his mind when he proposes to set up this tribunal.

Mr. O'HIGGINS

It was rather difficult to come to a decision with regard to this amendment, and I will state quite frankly the arguments or considerations that would weigh towards the rejection. Those bodies that it is proposed to establish are not Courts, they are merely departmental advisory committees. I do not know whether there is any precedent for bringing before the Dáil, still less before both Houses, the instructions that would be given to committees of that kind, and a step such as is suggested in the amendment might give the appearance or suggestion that these were public tribunals. They are not. They are departmental committees. There are departmental committees sitting at the moment. There is, for instance, the Advisory Committee upon Personal Injuries, which is hearing cases and making recommendations to the Ministry of Finance. I am not aware that the instructions of that committee were laid before both Houses and discussed, still less amended, and yet if the Deputy and mover of the amendment were prepared to leave out some words in the amendment, I think we could strain a point and accept it. The words I would ask him to leave out would be the amending powers that are asked for. It is not without good reason I make that request. If these Regulations are to come before both Houses the amendment, as drafted, would leave it in the power of either House to put up and pass amendments. It might be amended differently in both Houses. There might even be conflicting amendments, and the question would arise as to which of these should prevail. If an amendment was passed in the Seanad which could not be reconciled with an amendment passed in the Dáil, what would happen? I would be prepared to accept the amendment minus these words that would involve that the Regulations for these Appeal Councils would be brought before both Houses and members would have an opportunity of discussing them. I have no doubt that, as a result of that discussion, if a strong view was shown to be held with regard to particular portions of the Regulations, the Minister in standing over them— whoever he might happen to be—would ask leave to withdraw them with a view to alteration, but I would ask the Deputy not to insist upon the power of amendment in either House. After all it is an Executive act. If it is wrong it is wrong, and should be rejected absolutely, but the Dáil should not seek itself to draw up these Regulations. Let it criticise them when drawn up. If they are wrong and there is a general feeling to that effect, no doubt the responsible Minister would withdraw them for alteration, but I think the Deputy would be unwise to insist on power of amendment for both Houses, and if he did so insist I would have no alternative but to oppose the amendment absolutely, withdrawing the concession I have offered.

I think the statement of the Minister is fair. I believe that this amendment is based upon the practice already in operation, even with the portion which is to be amended. Nevertheless, I realise the force of the argument that there may be a difficulty if one House desires to amend in one direction and another House desires to amend in another direction, and that there might be considerable time lost in deciding which amendment shall be accepted. A discussion that would take place, if there was a resolution to annul, might well mean that the Minister responsible would prefer to withdraw the regulation and amend it according to the suggestion which takes place on the resolution for annulment. On these grounds, I think I would advise my colleagues to agree to the deletion of the words on line 3, "or amending the regulations," and the later words "or amended." That would probably meet the Minister's objection.

I am quite willing to have the amendment changed to suit the suggestion of the Minister.

Mr. O'HIGGINS

I take it that the Deputy has no objection to an improvement in the drafting that would not alter the substance of the amendment? If we consider that the substance could be embodied in a better form of words I take it there would be no objection?

Does the Minister make any suggestion as to an improved form of words?

Mr. O'HIGGINS

I would not be prepared to make a suggestion. It only struck me that the draftsman might care to do a bit of touching up on the wording.

I think this is taken verbatim from a previous Act. If the Minister finds it is not verbally accurate perhaps on the Report Stage he could suggest an amendment.

Amendment, as amended, put and agreed to.
Motion made and question proposed:—"That Section 4 as amended stand part of the Bill."

I am sorry this Section is going into the Bill. I am glad that there are amendments in it as far as they go, but as long as the Minister retains the power to override the decision of his own Appeal Council it is impossible for the appeal to be regarded as otherwise than as a delusion and a snare. I do not think it is sufficiently realised that the intense suspicion to which Deputy Johnson referred yesterday exists both in Executive quarters and among the prisoners. Consequently it is useless to provide an appeal of this kind unless in so doing you make it abundantly clear that the appeal will, in every way, be perfectly fair to the prisoner. You have to start with the fact that you are dealing with men who are naturally and reasonably suspicious of the Executive, and that you are dealing with an Executive that has shown itself to be exceedingly suspicious of those men and in many cases unnecessarily suspicious. If you start with that you will realise that a Section of this kind is really useless. I was struck by the drafting of this Section as it originally stood. I wonder whether the Dáil has realised that under the Section as originally drafted, and under that Section alone, the Executive has a right to order a specified period of detention for an internee, a period which, as I suggested yesterday, might have exceeded the period of the Bill. That, I hope I understood correctly, is to be taken out. But it was under this Section only that there was power given to the Executive to order detention for a specified period. Another curious thing was that in this Section only had you mention of the words "outside the Saorstát." So that it was a condition precedent to being deported to Saint Helena that you should appeal to the Appeal Council. You could not be deported unless you appealed to the Appeal Council to get out. Those being the facts can you blame men in prison that they are suspicious of this Appeal Council? Can any fair and reasonable man, however strongly he may feel against the men in prison, blame them for being suspicious when an Appeal Council of that kind is presented to them as a serious method of seeking release? I think that there is only one way in which an appeal of this kind can be effective and that is to insist that the persons who man the Appeal Councils shall be persons completely independent of the Executive and with legal training. I do not mind whether you call the Council a Court or not as long as you make quite certain in your Bill that the men who compose it will not be mere nominees of an Executive Minister, but will be independent men and men of legal training. That is not what is proposed. One of them is to be a man of legal training, nothing is said as to the others. I put it to the Dáil that it is futile to insert in a Bill provisions for an Appeal Council of this kind in the terms in which the provisions now appear. It has been a humiliating thing for many who believed in the Free State to see the Courts of Justice compelled to declare that there was a state of war in existence at the present moment, apparently basing themselves mainly upon the fact that the arms had not been surrendered, an argument which might apply equally well 12 months hence, if the arms are not surrendered in the meantime. That did not tend to encourage any respect for legal tribunals. How much less respect then will there be for a tribunal of this kind which is a nonlegal tribunal and whose proceedings are to be conducted in secret? The Dáil will recollect that the Minister, after agreeing that the report on which a man is interned is to be placed before the Appeal Council, subsequently said that there might be cases where confidential reports would have to be withheld, notwithstanding the fact that there is now a Section in the Bill ordering the Minister to produce those reports to the Appeal Council. It has always been an honoured principle, and should continue to be even in a time like this, that if once a man gets out by order of a Court or a Tribunal established by the law of the day, nobody should have the right to question that decision. Unless that feature of the Appeal Council is removed, unless the feature whereby a Minister can override his own nominees for secret reasons is removed, unless it is made mandatory that the persons appointed shall be persons wholly independent of the Executive, it is much better not to have an Appeal Council at all, and so long as the Section remains in its present form I shall certainly vote against it.

I want to support the view Deputy Gavan Duffy has expressed, that the Section, by pretending to be something which would facilitate prisoners in their desire for release is really not going to do that with any effectiveness, but is rather going to do greater harm than any good there might be in the desire of the Minister. I do not believe that with the deletion of this Section there would be any less chance of prisoners being released. I believe the Executive Council can find ways and means of making inquiries into the case of a prisoner without the setting up under this Bill of an Appeal Council. It is quite within the province of the Minister even without this Section to call into his assistance three persons, or three times three persons, to advise him as to whether the evidence on which the person has been detained is of any value or not, to meet the prisoner and to examine him with a view to testing the evidence under which he was originally detained. It is better for the prisoner that he should know that the responsibility for his detention is without question in the hands of the Executive Council. The setting up of an Appeal Council, with such limited powers and low status as the Council provided for in this Section, would not be of any merit, and would, as a matter of fact, prejudice the prisoners, because they would feel that there was greater danger in making the appeal to a Council which had no authority to release. They would feel more confident if they were going to appeal to the men who put them in, and had power to retain them, rather than appealing to another Tribunal which had no power either to release or detain, but which would deceive them into thinking that there might be an extra chance of being released if their cases were considered by such an Appeal Council. It is quite illusory. It is no value in the Bill. There is nothing to prevent a Departmental Committee of the same kind being established without the authority of the Bill. Therefore, as I see it, the Bill would be less harmful with this Section deleted than with it in. It is like a false coin which would have the pretence of legitimacy but would not have the value of the real currency. It is better that people should not be deceived into thinking that the currency was valid, even though by chance an odd person were able to pass the false coin. I support the views expressed by Deputy Gavan Duffy against the acceptance of this Section, as I believe it is harmful, and not beneficial.

I should like to support Deputy Gavan Duffy in his view that this Section should not be retained in the Bill for the reasons stated both by him and by Deputy Johnson. The very title given to the Councils in the Bill is misleading. When the British set up a somewhat similar Committee they had at least the decency to declare that it was an Advisory Committee. The Ministry has not done that in this case, but has called these Councils Appeal Councils. In ordinary law and for ordinary offences when a prisoner is convicted by a lower Court he has a certain remedy and can appeal to other Courts. Citizens generally understand that they have such a right of appeal to other courts. So that the very title of the Bill itself, if not from the strict legal sense, at least in the ordinary accepted sense of the word, means that the body so designated can reverse or vary the decision of a body from which an appeal is made. That is not so in this case. The Minister has gone to great pains to show that in no sense of the word are these courts at all. They have no powers and no authority, beyond the power on the request of a prisoner to inquire, not so much I should say into the innocence of the prisoner, but into the reasons which seem good to the Executive why that prisoner should be detained. I submit that the whole thing is deceptive and that it will be fairer to the internees that the deception should not be practised, no matter how good the intention of the Ministry may be in practising that deception. Legal and other fictions have their use and their purpose. I suggest that this particular deception has no purpose except to mislead the prisoners, and not only the prisoners but the ordinary citizen outside, who may think from a surface view that there is something of real value to the internees in these Councils. We are not even informed, although the Minister has thrown some light on the work of the Councils, of their personnel, except that one shall be a qualified legal gentleman. We are not informed either by the Minister of the number that he proposes or suggests to set up. There are I suppose anything from 10,000 to 12,000 prisoners, who under the Bill have the right to request an investigation by one of these Councils, but we have no idea at all, and can form no idea, of the length of time any one of these Councils might reasonably give to the investigation of the case of a particular prisoner.

It is obvious that if you are to do anything to deal with ten thousand prisoners more than one Council will have to be set up. If more than one must be set up, then how many? And what are the regulations by which they should be conducted? If there are more than one it is a fair assumption, I think, to make, that the practice of one Council may differ very considerably from the practice of another Council. We know very little about them except what the Minister has told us, and what little we do know about them has not given us any confidence in them. On the contrary, it has made them appear naked and unashamed. For that reason I beg to support the attitude of Deputy Johnson and Deputy Gavan Duffy in opposition to this Section.

I intend to vote against this Section for the reasons that I have already indicated, speaking on an earlier amendment, namely, that I think the Bill would be quite better without this Section. There is no freedom to the prisoner in these appeals, and I think it would be fairer to the prisoner not to have these Appeal Councils which, in the circumstances and as outlined, could only be farcical in their operations. There are many men whose future position may be determined by the manner in which they are dealt with by these Appeal Councils. A man, for instance, may be in employment and may be interned, and his employer, not knowing these Appeal Councils as we know them, and thinking they are equivalent, in every way, to a regular Court of Inquiry will, and possibly quite naturally, form the opinion, that here you have a Court of Inquiry set up to try the prisoner. If the prisoner fails to appeal to that Court, as some of them will decide not to appeal, the employer may come to the conclusion that the man is, therefore, guilty and not worthy any longer to hold the position he has held, and he will be removed from that position. His guilt will be assumed, and he will be dismissed.

In saying that I am not speaking altogether hypothetically. Deputy William O'Brien, and others, told us how farcical were appeals to the Sankey Commission under the British regime. I think I am right in saying that the Government at the time used that Committee or Commission, or whatever it was called, to remove Civil Servants from their positions. If I remember rightly, the position taken up by the then Government was that any prisoner who failed to appeal to the Sankey Commission, or any prisoner who appealed to the Sankey Commission and whose case was turned down, could not be restored to his position in the Civil Service. His guilt was assumed although, as Deputy O'Brien told us, some of these men, having gone three or four hundred miles to attend the Commission, were asked questions that had nothing to do with their internment or detention. That is the danger I see in these Appeal Councils. If all the amendments that had been moved to this Section were accepted, they might have been of some use, but as the Section now stands, even with some amendments in it, it is more of a danger than otherwise to the prisoner, and therefore I intend to vote against this Section.

Question put: "That Section 4, as amended, stand part of the Bill."
The Dáil divided: Tá, 40; Níl, 13.

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Uaitéar Mac Cumhaill.
  • Seán Ó Maolruaidh.
  • Mícheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Séamus Breathnach.
  • Pádraig Mac Uarghairg.
  • Peadar Mac a' Bháird.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Mícheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Earn n Altún.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Pádraig Ó hÓgáin.
  • Pádraig Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Risteárd Mac Liam.
  • Caoimhghin Ó hUigín.
  • Próinsias Bulfin.
  • Seámus Ó Dóláin.
  • Próinsias Mag Aonghusa.
  • Éamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnall.
  • Earnán de Blaghd.
  • Uinseann de Faoite.

Níl

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Liam Ó Briain.
  • Tomá 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 5.
(1) Any person found guilty on indictment of any of the offences mentioned in Part I. of the Schedule to this Act may be sentenced to suffer death or penal servitude for any term not less than three years.
(2) Every person convicted by a Court of summary jurisdiction of any of the offences mentioned in Part II. of the Schedule to this Act shall be sentenced to suffer imprisonment with hard labour for the term of twelve months, and to pay a fine of fifty pounds and, in default of payment of such fine within one month after conviction, to suffer imprisonment with hard labour for a further term of six months to be added to and commence on the expiration of the said term of twelve months.
(3) Every person found guilty on indictment of any of the offences mentioned in Part II. of the Schedule to this Act shall be sentenced either—
(a) to suffer penal servitude for a term of three years and to pay a fine of not more than one hundred pounds nor less than fifty pounds and, in default of payment of such fine within one month after sentence, to suffer penal servitude for a further term of one year to be added to and commence on the expiration of the said term of three years; or
(b) to suffer imprisonment with hard labour for a term of not more than two years nor less than one year and to pay a fine of not more than one hundred pounds nor less than fifty pounds and, in default of payment of such fine within one month after sentence, to suffer imprisonment with hard labour for a further term of six months to be added to and commence on the expiration of the first mentioned term of imprisonment.
(4) Every male person who shall be convicted by a court of summary jurisdiction or found guilty on indictment of the offence of robbery under arms as defined at No. 6 in Part II. of the Schedule to this Act, or of the offence of arson as defined at No. 7 in Part II. of the said Schedule shall (unless the Court is of opinion that, owing to the state of health or advanced age of such person, corporal punishment could not be inflicted on him without permanent injury to his health), in addition to the punishment prescribed in the foregoing sub-sections, be sentenced to be once privately whipped subject to the following provisions:—
(a) in the case of a person whose age does not exceed sixteen years, the number of strokes at such whipping shall not exceed twenty-five and the instrument used shall be a birch rod;
(b) in the case of any other person, the number of strokes at such whipping shall not exceed fifty;
(c) in each case the court in its sentence shall specify the number of strokes to be inflicted and the instrument to be used;
(d) such whipping shall not take place after the expiration of six months from the passing of the sentence;
(e) such whipping to be inflicted on any person sentenced to penal servitude shall be inflicted on him before he is removed to a convict prison with a view to his undergoing his sentence of penal servitude.
(5) The jurisdiction of a court of summary jurisdiction in respect of any of the offences mentioned in Part II. of the Schedule to this Act shall not be ousted by reason of the title to any corporeal or incorporeal hereditaments or any lands or premises being drawn into question.

I move amendment 33 on the Order Paper.

On the instructions of the Ceann-Comhairle, this amendment has been altered to read as follows:—

To insert before Section 5 a new Section as follows:—

"(1) From and after the passing of this Act it shall be the duty of every County Council within whose area persons shall be detained in custody without trial under this Act to appoint a Committee consisting of such number of persons of good standing in the locality as the Council shall deem necessary, having regard to the number of persons to be detained in custody without trial in such area.

(2) The members of every such Committee and each of them, shall from time to time and at frequent intervals visit every place of detention for which they are appointed and hear any complaints which may be made to them by persons confined therein, and, if asked, shall do so privately; they shall report to the Minister for Home Affairs and to their Council upon any abuses which they may find and upon any matters of pressing necessity.

(3) Every member of such a Committee shall at all times have free access to every part of the place of detention for which he is appointed, and to every person detained in custody without trial therein, and free access to all the books of every such place of detention.

(4) In this Section the expression `County Council' shall include the Corporation of a County Borough."

I accept the Chairman's ruling with a good grace as always. A rose is as sweet by any other name. When we cannot call a place of internment a Bastile in an Act of Parliament, we certainly can call it so in our ordinary speech. I rather fancy that had this amendment been allowed to go to the Dáil in the original form in which I proposed it, with this naughty French word, that the insertion of that word, that name, would have commended itself to the Executive Council themselves, seeing that they have always told us that they believe in calling a spade a spade. The object of this amendment is a very simple one. It does not depend upon what we call places in our Acts, and I quite willingly omit the appellation from the Section. The object is to let in a little daylight in these places of internment, mainly in the interests of the prisoners, and also in the interests of the Free State. I received, and I suppose other Members have received a copy of a resolution passed on the 5th day of this month by the Waterford County Council. That County Council resolved:—

"That we cannot accept General Mulcahy's statement as sufficient answer to our demand for an independent inquiry into the conditions prevailing in the Free State prisons, and we reiterate our demands for an inquiry with special reference to suspected cases of ill-treatment of individual prisoners, and that copies of this Resolution be sent to the Members of Parliament for Southern Ireland, and to all County Councils."

On a point of Order, what is the Parliament of Southern Ireland? This is not the Parliament of Southern Ireland.

On a point of explanation, the statement of mine referred to in that resolution is the report of the Red Cross Committee that visited the different jails or prisons here.

As to the point about Southern Ireland I am merely quoting what the resolution says. As to what the Minister for Defence has stated I did not know what particular enquiry was referred to, and it is immaterial. The point is that a County Council in this country after twelve months of Civil War should pass a resolution of this kind. Deputies have also received the very unpleasant statement issued under the name of Alderman Murphy, containing allegations as to treatment of prisoners recently, after an attempted escape. For a long time past we have been accustomed to receiving various reports as to ill-treatment of prisoners in various places where they are held by the authorities. The immediate question is not whether these reports are true or false, whether they are well founded or utterly groundless. I have myself often refrained from giving publicity to reports of the kind because of the impossibility of verifying them. The important point is that it is very generally credited that prisoners have been subjected to ill-treatment and it is bound to be credited so long as your prisons are Bastiles—so long as your detention camps are kept in such a way that no human being who is not in the employment of the State or who does not receive special permission ad hoc can go inside. This amendment is intended to draw attention to the necessity of getting away from this appalling policy of secrecy which has been the mistake from the beginning in connection with these prisons. I should have thought it would have been obvious to the Ministry, and to those who support them, that a policy of that kind defeats itself and must defeat itself. One was glad to read the report of the Red Cross Committee or rather of the Red Cross delegate who visited the prisons and found them very satisfactory, and stated that allegations that had been brought to his notice were untrue; but, when one came to the paragraph in which the delegate stated that he had not been authorised to question prisoners, one saw at once that the effect and value of his report was thereby very materially decreased. Is there any outside authority whatsoever entitled or to be entitled under this Bill to inspect places of detention or to visit a prisoner there? Or is it the view of the Executive Council that no such thing can be tolerated, otherwise the safety of the State would be endangered?

Mr. O'HIGGINS

What do you mean by "outside authority"?

took the chair at this stage.

I had in mind the delegates from the County Council. I should be glad to know who, if anyone from outside, would have any right to inspect?

Mr. O'HIGGINS

Does the Deputy mean from outside the country?

No; some person outside the Executive and outside the prison; outside the present Government authority, some person such as visiting justices in the old times. I asked the other day that a Committee of Doctors should be allowed to inspect the prisons and prisoners. For technical reasons my amendment fell through, but not before the Minister had stated that this amounted to a vote of censure upon the Executive, and, therefore, should be resisted. That is not the spirit in which a matter of this kind should be approached. We are just as much entitled to believe that the interests of the State, to say nothing of the interests of the prisoners, require daylight as the Minister is to say that the interests of the State require that no persons of this kind should be allowed to visit the prisons. It cannot be to the interests of the State to have numerous stories spread about, and spread about simply because there is no means, when there is a real grievance, of testing it to the satisfaction of the public, and when there is a bogus grievance, there is no means of ascertaining that it is a bogus grievance. It cannot be satisfactory to this Dáil nor to the Executive itself. That is why I asked that a County Council, taking that as a normal representative body, should be authorised to appoint people for the express purpose of visiting the detention camps within the area of the Council. I asked that the Members or Delegates appointed by the Council shall be allowed to inspect and visit these bastiles frequently, and that they shall be entitled to see any person confined therein, and if asked to do so, to see any such person privately; that they shall report to the Minister for Home Affairs and to the Council that sent them, upon any abuses they shall find therein, or upon any matter of pressing necessity. This sub-section is nothing new. This, and indeed the next sub-section are both modelled upon the Section giving express powers to visiting justices under the Prisons Act. The statute about visiting jails expressly says that prisons should be visited, and the prisoners shall be seen privately if that is asked for. It expressly says, as in the next sub-section, that there shall be free access to every part of the prison and to every person detained in the prison and to all the books in the prison. I want the Dáil to realise that this proposal is not revolutionary. If the Minister were to say that for some reason or another the County Council is not a proper body to appoint visiting justices, let us have the matter dealt with in some other way. In the interests of the Executive and the State, it is necessary that someone who is not an Executive servant, and some persons who are not under the authority of the Executive as their officials, and who would in their visits represent the public, should have the authority to visit prisons and prisoners.

I would ask the Deputies to remember that in passing this Bill Dáil Eireann is doing something of a very unprecedented character. You are going to sanction for six months, or perhaps longer, the internment, without any trial whatever, on mere suspicion, of thousands of people. A good many have been in prison for twelve, eleven, ten months, and so on, and I can understand, although I disagree with the Ministry's view, that, during the active period they could not permit people to visit and inspect prisons. I do not think that the same case can be made now for keeping the prisons secret. I want to say quite frankly that a great deal of propaganda has been carried on in connection with the prisons which was unfair, but, as long as prisons are kept secret, that will continue inevitably. At the same time, there have been abuses which the fact of secrecy has made it impossible to go into, and which would have been remedied had some such proposal as this been adopted. I trust in passing this drastic measure, the Dáil will do itself the justice of insisting that some such proposal as this shall be inserted in order to have a little fresh air and daylight in connection with these detention places, when we all know that the opposite policy is an exceedingly bad one.

The Deputy has spoken at some length upon a subject of which, as far as I know, he has no information, he has no experience, and he is not in a position to give to the Dáil anything but a very exaggerated account of the condition of affairs in these internment camps. I was looking around the Dáil to see some person who had had experience of imprisonment, and the Deputy that I had in mind has gone out. I have had some experience of imprisonment. I recollect on one occasion when there had been some relaxation in Lewes, in 1917. There were there, 120 prisoners, and I recollect a song being sung by one of them. The song was, I think, "The Felons of our Land." I have not much knowledge of poetry or music, but, if my recollection is correct, there was some reference in that song to "dungeons deep." All the prisoners there wore convict uniform, and their laughter was loud and derisive when that particular part of the song was reached. Whether that was the song or not, I do not know, but those particular words were used. If the Deputy were there a great deal of his hallucination would, I think, have been dispelled. That was the case when imprisonment was certainly more severe. There had been a relaxation after the prisoners were taken from Portland and Dartmoor to Lewes, and conditions in Lewes were very much better than what they were in the other two places. The Deputy need have no misgivings about the Executive Council. The Executive Council, with great respect to the Deputy, does not require any assistance from the Deputy in so far as the treatment of prisoners is concerned. I am quite sure he means well, but most of the members of the Executive Council have got intimate knowledge of imprisonment, intimate knowledge of the propaganda that is got out of imprisonment, and intimate knowledge of the false, malicious, unfounded and utterly unreliable propaganda that is made, certainly in this case, about the maltreatment of prisoners. I know Alderman Charles Murphy. I know him well, and have known him for many years. I know his family, and he might, at least, have written that complaint to me; and, if there was anything in it, it would have been investigated. He could have written to the Chief of Staff, who was his friend and who did business with him for a long time. Alderman Murphy is, I have no hesitation in saying, an honourable man, but, in internment camps and places like that, one's judgment is certainly not of a sane and sensible character, and it has not that flavour about it that it has when you are not in an internment camp.

I would ask the Minister whether he does not think that particular complaint ought to be investigated, even if Alderman Murphy did not write direct.

I do not promise that I will undertake to investigate a complaint made in that way. First of all, I do not know that Alderman Murphy has made that complaint. I have not had any intimation from him. I saw it on a typewritten sheet, only when I went outside, from a source hostile, and from a source which has no appreciation good, bad or indifferent, of Irish honour. What are we asked to do in this case? Accommodation is to be provided for people who have made their best effort to ruin this country, not to ruin the Free State Government, but to ruin this country; not to ruin the Saorstát, but to drag in the mire the name of Ireland and make it a reproach amongst the nations, and hold up to the whole world a picture of infamy, such as no nation has yet had to hang its head in shame in order to witness. We are asked now to make comfortable happy homes for the people who have destroyed more homes in twelve months than have been destroyed in any other country, in the same period, by the same number, with the same resources as they had got, and who covered themselves with the flag or label that it was a military proposition. We have men serving in the Army of the Saorstát who fought with these men in the old days, who were associated with them in Councils, political organisations, Gaelic League classes, and in every other social, industrial and political movement which has been in operation in this country for a long time. We have ten thousand prisoners, or over that number—prisoners taken when the hot passions of men were aroused, when they saw great national heroes shot before their eyes, and they were the prisoners taken after that. There may have been excesses; I quite admit it. There are bound to be excesses. I have never yet heard of any country in which there were not excesses. I challenge any country to prove that there were less excesses anywhere than there were in this country by troops of the National Army, in any war, in any time, even in the time of the Crusaders.

I am loath to interrupt any Deputy most of all, the President, but the question in this amendment is not the excesses alleged to be committed by the Army, but the propriety of having Councils to examine places of detention, and I think the President has wandered away from the subject matter of that amendment.

I was seeking to prove that the people who are guarding the prisoners are soldiers, and that it is alleged against them that, in their sober moments when their passions are not aroused, they are guilty of certain acts calculated to make internment worse than imprisonment and calculated to bring discredit and dishonour on the Army and the Government of the country. I went on to show that even in cases where hot blood was aroused on the field of battle they did not commit these excesses and that in the ordinary course of their duties as soldiers at these places of internment it was asking too much to ask us to believe that in their capacity as jailers, or guards, they would commit the excesses which the Deputy says the representatives of the County Councils should investigate.

On a point of personal explanation I was very far from making any such general charges against the Army as the President has suggested. I said that charges had been made about certain abuses in internment camps, but I made no such sweeping charges as those to which the President has referred.

I was hoping that we were coming to a time in the public life of this country when Deputies, members of the Government, and other people in whom responsibility was reposed by the people would have sufficient moral courage to say "I do not mind that sort of twaddle; I am not going to listen to it." That is my attitude on the question of the prisoners. I have given my reasons for it. I have seen imprisonment. I know, even in the short experience I had, some of the sufferings endured by prisoners—very much greater sufferings than even those alleged by people who have made this propaganda. I know, furthermore, what is an outstanding thing with regard to these sufferings, that the men who went through them were never men to picture them and to draw the attention of the nation to the fact that they had undergone these sufferings. We have come in for considerable criticism by reason of the fact that some deaths occurred. I regret these deaths as much as anybody, as much as any member of any family of any person who has died, but, I submit with great respect, ten thousand men are not kept in any place, in any city, in which deaths do not occur. In the City of Dublin, Deputies know—there are two representatives of the City of Dublin here, an Alderman and a Councillor—what the death rate is in the city. And I know what the conditions are under which certain people in the City of Dublin are living. One person who is now suffering from the effects of imprisonment, and another person who was a prisoner and who is now dead, went with me through the city and visited the nightly lodging-houses, and saw the conditions under which ordinary free citizens live. I know full well that the care and attention which our prisoners are getting at present would be a sort of seventh heaven of delight to those unfortunate persons that I have seen housed under shocking conditions. The Deputy will have to recollect in these cases that the position of the Government is not to say "No," and not to say "Yes" arbitrarily. These unfortunate denizens of these nightly lodging houses have got to pay in their taxes for the upkeep of these prisoners. Yet we are asked to allow inspections by County Councils and County Borough Councils of our jails. I wonder if any of these County Councils or County Borough Councils would take the time to visit the places I mention, and observe the conditions under which free people live in their own bailiwicks and examine their consciences and see what they did to improve these conditions. I know some of them who have done much. I know in the City of Dublin great efforts have been made. I know, furthermore, while great interest has been aroused by propaganda regarding the conditions under which the prisoners are living, that a great many of these prisoners are not to be compared with that other order— I forget the name that Jack London called them, but I think it was the Submerged Tenth. Do these people ever consider that there was a very vast army of people who were unable to help themselves and who were going to be plunged below the submerged tenth down to the submerged twentieth by reason of their activities? I hesitate to believe for a moment that the men at present in the National Army would be guilty of any inhumanity towards prisoners, and I hesitate to believe that the Army Council, constituted as it is, would be guilty of such dereliction of their duty and I am not satisfied that the allegations such as have been made should be noticed to the extent of which they have been noticed. A report has been published from the Red Cross Organisation which makes a claim from their observations that the treatment of these people was all that could be desired. It makes it plain that they did not themselves appreciate their own duties as prisoners. The Deputy will recollect that facilities were afforded for personal cleanliness and that these facilities were not availed of. Is not that an incredible thing to say about idealists? Idealists there are amongst them but any idealists I ever came across were not willing to have posted on the hoardings of the city or published in the columns of the newspapers such slanders on their country, and libels on their own countrymen, to make life easy and comfortable, to make a nation upon which they did such severe wrong liable for making their existence, while in internment, comfortable and happy while they were there.

With all due respect to the President I do not think he has given reasons why the Dáil should not adopt Deputy Gavan Duffy's amendment. Everybody, or almost everybody who has had prison experience, and a great many who have not had that experience will agree that imprisonment does lend itself to various forms of propaganda, and it is just to be expected that the friends of the prisoners of the President should improve if anything on the friends of the prisoners of the recent past. But is that any reason why, when a suggestion is made that the present Executive should re-adopt in another form, certain provisions of certain previous Acts relating to the visiting by authorised people of the prisons and places of detention under their care——

Mr. O'HIGGINS

Authorised by whom?

By responsible public authorities. All that the President says about the conduct and character of the Army and of that portion of the Army to which is entrusted the guarding of prisoners may be all very well true. I am not questioning it for a moment, but if it is all so true what is the reasonable objection then to the admission of a panel of visitors such as is provided for in this amendment? Th re is no objection that I can see to it, none whatever. As I remarked the other day, it is not necessarily a reflection either on the conduct or character of the Executive Council or the military authorities that such Visiting Committees should be set up. It is part of the ordinary procedure under the ordinary prison system before the present and recent strife in Ireland. At various times under the British and other Governments they themselves set up not only Committees something similar to those Committees, but actually ad hoc Commissions to inquire into the conduct of prisons when there were complaints that everything was not quite all that it might be in those prisons. None of them ever suggested, I think, that the making of this inquiry by someone independent of the Executive, not employed by the Executive, even if they reported unfavourably on the conditions of persons, really meant that there was a national or wholesale condemnation of that particular Government's conduct in its prison service. In all those thing, of course, I quite admit time, circumstances and occasion must be taken into consideration, but I submit that if time, circumstances and occasion are taken into consideration in those matters now that the balance of argument will be in favour of something like what is provided for in the amendment. It is really perhaps only a reversion in another form to a practice elsewhere, and in other and quite recent times. The Executive Council should have nothing to fear from an investigation into these matters; on the contrary, it should have everything to hope from it. If the Executive is in a position, as it feels itself to be in a position, to pat itself on the back because certain visitors from the International Red Cross should visit certain prisoners and did not positively condemn the treatment of those prisoners, how much more to the credit of the Executive Council would it not be if such Committees as these were in the position that they would be allowed to go in and report that everything was good and things nice and proper so far as the Executive Council could make them so? Now, the President has touched all our hearts with his contrast between the conditions in the common lodging houses in Dublin and the prisons. When he referred to them he did not say anything that was new to some of the Deputies here, or anything new to people outside. While I admit he was one of those who did his little bit to help, I want him to remember that there are very many people even in the worst slums in Dublin, even in the worst conditions in Dublin— it is not creditable to Dublin or to Ireland that there should be such a thing; it is not creditable to civilisation anywhere that the prisons, the prison services, and the conditions in prisons in any country should be so far above the conditions which prevail amongst those who are referred to as the Submerged Tenth—who would prefer to die in starvation under the worst conditions rather than to live in comparative case and comfort and plenitude without their liberty. The President and every other Deputy who has been in a prison knows that no comforts of prison were able to compensate him or anybody else for the loss of liberty, even if that loss of liberty were only for a time. It is not a good reason why he should not accept this amendment.

We have been urged to pass this Bill a dozen times by references to the desirability of passing from a state of disorder, of armed rebellion, a state of war, to a state of peace, and to make that transit as orderly as possible, and as easy as possible. I submit in accord with that desire that this motion should be supported. During the state of war it was considered necessary by the Executive Council that people should be imprisoned and that there should be no inspection; there should be no access to those prisoners by people outside the prisons, because of the state of war, because of the armed rebellion, because of the danger that would arise from the in-coming and the outgoing of civilians. And let us assume that the Ministry were justified in that contention, in the transit to a state of peace. It is asked that Committees equivalent to Committees which actually exist in time of peace should be established, that some body comparable with the Visiting Justices should be set up by the County Councils to visit internment camps and prisons. That I contend is consistent with the declared intention of the Minister in introducing the Bill to pass as gradually and as easily as possible to a state of normality. The President has emphasised the report of the Red Cross Committees Delegation. While that may be very satisfactory to the President, I really do not think it is a document that ought to give so much satisfaction to him. I would have been much better pleased, and I really expected a much more satisfactory document than that which the President has referred to us, in confirmation of the claim he has made as to the desirable condition of these camps. But really that is not the point. The camps may be perfect; there may not be the shadow of reason for a complaint about the conduct of the camps, but nevertheless it is desirable that the public should have some means of knowing whether that is true or not, even independent of the statement of the Minister. The Minister has just grounds for asking that the public should accept his word, but unfortunately in this imperfect world there is no man whose word is taken absolutely by every person, and in this country there is quite a large proportion of the population doubtful of the statements that have been made on behalf of the Ministry in regard to matters for which the Ministry is responsible. We are all apt to say that the things we are responsible for are all right, that they do not deserve criticism, but rightly or wrongly the public do not take us at our own valuation. And if the Minister wants to have his word in a matter of this kind accepted implicitly, the establishment of Committees of this kind, to confirm his claim, is the way to ensure that the public will have confidence in statements made on behalf of the Executive Council.

No doubt, as Deputy O'Shannon said, there are thousands of people who would be very glad of the accommodation, the attention, the food that is provided to the people in the internment camps, even without going to the people of the abyss, even without going to the Submerged Tenth. There are many people who are giving all their strength for wages, and who are not getting sufficient wages to feed themselves in the way that we are assured the prisoners are fed. But surely that is not the point, surely, it is a reasonable request that in a place where 1,000 prisoners are detained, or 2,000, or 5,000 that somebody representing the public, outside the Executive, should have access to those places, even if only to consider the sanitary conditions. That, too, has been denied, and yet we know that when attention was called here to a glaring cases, immediately remedies were found, but they were found because there had been some publicity. It is with a view to securing and assuring that there shall be publicity of grievances, because then the remedy will speedily follow, that it is desirable to embody such a section in the Bill, so that the public, through their representatives, shall have some right of inspection, and that there shall be some contact between the prisoner and the public by means of which a grievance, if it is a well-founded grievance, can be made public. If it has in normal times been found necessary to appoint Justices to visit prisons, when there has been no overcrowding, when there has been no abnormal circumstances attending the imprisonment, surely it is not unreasonable to claim that in abnormal times when there has been admittedly overcrowding, that there should be some public right of supervision over the conditions under which untried prisoners, uncharged prisoners, innocent prisoners in many cases, have been interned.

That is not an extraordinary charge. It is not a want of confidence in the Ministry. It is a reasonable proposition. and it should commend itself to any Government or any assembly which desires to keep proper contact and proper control over matters under its authority and under its administration. The Dáil applauded Deputy McGoldrick to-day when he referred to his faith in the elected representatives of the people. Here is a chance for Deputy McGoldrick and those who support him in that view of proving their faith in the elected representatives of the people, because the County Councils are also the elected representatives of the people.

Mr. O'HIGGINS

Elected for what?

To look after the conditions of life within their area; to look after the sanitation within their area, to protect the public health within their area.

Mr. O'HIGGINS

It is well to know that.

And in the case of the County Borough of Dublin to appoint prison visitors within their area. That is what they were elected for, and I ask the Minister to have faith in the elected representatives of the people.

I would like to ask the Deputy if he is aware of any action taken by any of those bodies recently on that particular subject—the election of representatives.

I do now know what the President is referring to.

I am referring to the appointment of Justices by local authorities. Is the Deputy aware that on a recent occasion a local authority refused to appoint those representatives?

I am not aware of it.

It would be well that the Deputy should know something about these bodies before he talks about them.

The Minister is responsible for those bodies more than I am. The Minister has been a member of one of those bodies, and he knows more about them than I do.

Mr. O'HIGGINS

Hear, hear.

The Minister has not yet had the courage to come to the Dáil and say he is going to abolish all the local bodies. They are elected, and the Minister has brought before this Dáil a Franchise Bill which desires that the same people who elect the Members of the the Dáil also elect members of the local bodies.

The question of the Franchise Bill cannot arise on this.

I agree, but I think the Minister invited that retort.

I am inclined to agree with you.

It was very handy to put in that retort when there was no answer to my question.

I desire to support this amendment to set up Committees to inquire into the state of the prisons and internment camps. I will cite a case that will prove the necessity of these Committees. On the 3rd May last I asked a question of the Minister for Defence about a young lad named Cardwell, 13½ years of age, who was taken out of Naas military barracks, and who was wounded in the neck. The answer I got to that question was:—

"Leo Cardwell was arrested by troops from Naas at his home early on the morning of the 24th April. At the house there were also taken six recently escaped internees, and firearms and ammunition. With the others Cardwell was brought to Naas military barracks at about 9 a.m. on the morning of his arrest. Because of his age, which he gave as 13½ years, it was not intended to detain him and he was kept apart from the others. It would appear that whilst in custody, and some time during the night of the 24th-25th April, he received a slight wound in the neck. In connection with the occurrence a member of the Army is now under arrest awaiting trial by court-martial, for the convening of which steps have already been taken. Pending the result of the trial it is not possible to make a statement as to the facts of the occurrence."

I have received no information as to how the court-martial went. On the 6th of June I wrote "Will you please let me know the result of the court-martial which was held in connection with the wounding of the boy Leo Cardwell. Also if he has yet recovered from his wound, and if he is likely to be affected with a stiff neck, and if he is now at liberty."

I got a formal acknowledgment on the following day, 7th June. I wrote on the 22nd June, and I got another formal acknowledgment on the 23rd.

Now what is the use of the Minister speaking about how the prisoners are treated when this young man could be taken out of the barracks at the dead of night and wounded in the neck by one of the military. Then he says there is no necessity for Committees to be appointed to see that everything is right in these internment camps and prisons. Is he afraid that these Committees will find out that what he is saying is not true? If everything is right I cannot see why he should object to these Committees being set up.

I also wish to support the amendment. Like other Deputies, I suppose, I am every week receiving what is commonly called propaganda. I do not know how much of it is true or how much of it lies, but I would like to know exactly how much of it is true. Some of this propaganda in connection with the Cork Courthouse came before the Public Health Committee in Cork, of which I am a member. There were very grave allegations made as to the conditions under which the prisoners existed. I am very glad to say—although it was not until after consideraable trouble—the medical officer of health in Cork was given permission to visit the place and that he made a fairly satisfactory report as to the conditions. If the medical officer had not been allowed to visit the place and give that report every member of the Public Health Committee, and practically every citizen of Cork would believe that what was contained in that propaganda sheet was the truth. For that reason I say that it is the business of the Government to see that the representatives of the people get at the truth. We want to make the truth heard, and we want to know what amount of truth is contained in this propaganda. There is no member of the Dáil or no member of a County Borough or County Council, I believe, who wishes to know anything but the truth as to the conditions in those places. I myself have got several complaints and I have made application to the General Officer Commanding in Cork for permission to visit those places to find out the truth for myself, as I thought it was my duty to do. That permission was refused to me on every occasion. Therefore I could only come to the conclusion that something was absolutely wrong there. The Corporation appointed a Deputation to visit the prison and when the application was made to the General Officer Commanding that permission was also refused. If there had been nothing to conceal why was this permission refused? As public representatives we simply want to know exactly what is going on inside there and what exactly is the position of the prisoners, and to find out for ourselves what amount of truth is contained in this propaganda that was sent out. I know that that is my position anyway. I simply want to know what is the truth and what is false—the statements made from the Ministerial Benches or the statements contained in these propaganda sheets. For that reason I support the amendment.

I would like also to support the amendment, and I regret that the Minister in charge, or the President, is not prepared to accept at least the principle underlying the suggestion, even if they were not prepared to accept the text itself. It may be quite true, of course, that a great many of the stories circulated with regard to the treatment of prisoners are propaganda, but I would be very slow to believe that a man like Alderman Charles Murphy would make the statement that is being circulated— if he has made it—unless there were good foundation for it. I do not pretend to know Alderman Murphy as well as the President or other Deputies do, but I know him moderately well for eight or ten years, and I have always looked on him as a most honourable and upright man who would be incapable of making a statement which he did not believe to be true. We have had other statements also for which there must be some foundation, and whatever justification the Ministry may have felt in the past for refusing visits when the country was in a state of war, conditions are now considerably changed for the better, and they could well afford to give way on that and allow some visiting committee to go in for the purpose of verifying that statement that the prisoners are well and reasonably treated. The President has referred, quire correctly, to the decision of the Dublin Corporation to defer the appointment of visiting justices. That is perfectly true, and if his objection, and the objection of the Minister in charge, is to the precise proposal that these visiting committees should be appointed by the county or borough councils, perhaps the Minister would agree to the principle of some visiting body, and, at a later stage, bring up a proposal that perhaps he himself would nominate a visiting committee, taking care to see that they were persons in whom the public would repose confidence. I would throw out that suggestion for consideration.

Mr. O'HIGGINS

Section 13 of this Bill provides: "That an Executive Minister may make regulations prescribing the prisons, internment camps and other places in which persons detained in custody under this Act may be detained; providing for the efficient management control and guarding of such prisons, camps and other places; providing for the enforcement and preservation of discipline amongst the persons so detained; providing for the prevention of the escape of any such person, and prescribing or providing for any other matter or thing relating to the efficient detention of such persons under this Act." I take it that that Section places very definitely the duty upon an Executive Minister of providing for the general efficiency and management of these places of detention. He will be answerable for that duty here to the representatives of the people, not to the representatives of the people, elected for Local Government purposes, but to the representatives elected with a broad national mandate to deal with matters of this kind. Some interesting expressions were used in the debate. "Somebody representing the public," said Deputy Johnson, and then, noticing the start of surprise on this side, he said, "I mean representing the public, outside the Executive." There seemed certainly to be an undercurrent, or an implication, throughout this debate that everyone represented the public except the Executive Council; that a county council represented the public; that even a body whom the county council might nominate would more amply represent the public than the Executive Council of the State or than the Parliament of the State. That is wrong.

Is it? Is it wrong?

Mr. O'HIGGINS

It is quite wrong. Responsible government consists in placing upon a Minister or Ministers primary responsibility for a certain thing, responsibility to the elected representatives of the people, sitting in their Parliament. They should answer for all matters committed to their care—answer fully. If they fail to answer to the satisfaction of the representatives of the people, then the duty of the representatives of the people is clear, but instead of having the fullest discussion and the fullest inquiry here——

They never had the means of getting knowledge.

Mr. O'HIGGINS

When did you ever ask for information and not get it?

How can we get the basis of our information without access to the prisons?

Mr. O'HIGGINS

I do not quite follow the Deputy.

The point is that the only kind of information you can get from prisons are these documents, which are alleged to be poisoned. We want to have a chance of getting truthful documents, and then if we find there are grievances we can raise them in the Dáil.

Mr. O'HIGGINS

Did you send those documents to the Minister for Defence?

These comments back and forward are out of order. The Minister himself invites interruption by putting questions to Deputies.

Mr. O'HIGGINS

The county councils and the local bodies generally, were elected for a specific purpose. I do not know what the general view of the Deputies or of the public is as to the manner in which these duties are being performed but, at any rate, their duties are specified and well defined, and personally, I question greatly the wisdom of adding to their duties what is really the proper function of a responsible Executive Government. Let us consider the county councils and ask ourselves, whether, in the existing conditions, they are proper bodies to entrust this function to. Five-sixths of the County Council of Kerry have been out in arms against the Executive Government of the State, elected by the people and responsible to the people, and they, forsooth, are to appoint a Committee of Inspection. If the county councils and the local bodies generally, concentrate on the particular duties for which they were elected I think that they will win general satisfaction and general approbation from the people. Deputy O'Brien asked for some acceptance of the principle that there should be inspection. Regulations will be made under Section 13. Personally, I see no objection to the principle of selected men, not in a paid capacity, being appointed by the Executive to visit places of this kind, but their appointment should be by the Executive and their reports to the Executive. This matter of the proper care and treatment of prisoners is Executive action, and such inspection of these places that takes place should be on behalf of the Executive. Deputies have insisted on talking as if the position here were what it was four or five years ago; they have persistently in their comments on this amendment, ignored the change; they have said "Whatever the British thought it right or expedient to do you should think it right or expedient to do."

Not except it was right in itself.

Mr. O'HIGGINS

It may have been right in the particular set of conditions then, and it need not be right now. It may have been necessary or advisable in a particular set of conditions, and not necessary or not advisable now. The whole Executive machinery of this country is responsible now to the people of the country, through the people's representatives. There is not a single phase or aspect of administration which you are not entitled to raise, question and criticise here. If the matter of conditions within detention camps were raised here—if it had been raised, say, any time this six months past—do Deputies really believe that the Minister for Defence would have withheld or refused the fullest of full reports thereon?

Mr. O'HIGGINS

Surely that is his particular function, amongst other functions for which he was appointed by this Dáil, and for which he is responsible to the Dáil. To suggest you should seek your information, not from him, but from some County Council, some local authority which is appointed, and select people at random from within these areas to visit a detention camp, well, that is simply a reversal of responsible Government, and simply consists in saying that local bodies elected for a very different purpose throughout the country shall, so to speak, be set to act as spies upon your Executive, and report to you as to the result. That is a position which I certainly will not accept in principle, or as it stands in the amendment. I do, as I say, accept this, that responsible citizens selected by the Executive, and not paid by the Executive, shall visit these places and report.

May I ask the Minister would he limit the selection of such persons to supporters of the Government—that is to say would he propose to exclude from such Visiting Committees persons who might not be supporters of the Government?

Mr. O'HIGGINS

I do not know what the Deputy means by "supporters of the Government." Supposing the duty of selection lay on me, I would not think of selecting people who approved of armed revolt against the Government, or of people who approved of outrages such as the burning of homes.

No; but, say, people who believed in the establishment of a Republic, and in whom prisoners have confidence, and who would not approve of the outrages or attacks. Would he approve of the appointment of a Labour member of the Dáil, for example?

Mr. O'HIGGINS

I want to be quite frank with the Deputy. There are certain offences set out in the schedule of this Bill, and I would not dream of appointing any person who I thought had any sympathy whatever with these offences. It is not a political matter, but sympathy with any of these acts or these crimes would, to my mind, automatically exclude for selection any person. But, if the Deputy means this, and I think he does, that a decent law-abiding responsible citizen ought to be eligible for selection utterly regardless of his political views, then I think that that ought to be the case.

Deputy O'Brien has asked the Minister a very definite question as to whether or not he would exclude from such a Committee, a Labour member of the Dáil. That question has not been answered.

Mr. O'HIGGINS

It could not be answered specifically. If persons were being selected they would not be selected qua a Labour member of the Dáil, but would be selected qua responsible law-abiding citizens.

The refusal of the Minister to answer that direct question could be taken that we would be regarded as sympathetic to armed revolt.

As a matter of fact, this questioning backwards and forwards to the Minister is quite irregular. It does not arise on this amendment. The Minister, in replying on the motion for the amendment, said that when he came to Section 13 he was quite prepared to appoint a visiting committee. It is quite irregular to cross-examine him now as to what the constitution of that committee would be, and certainly nothing he said was capable of the interpretation that he regarded any Deputy or Deputies as sympathising with crime.

I take it that there is no difference of opinion as to whether or not any member of the Dáil could be regarded as other than a law-abiding citizen. I am one of those persons who have been in receipt of the propaganda referred to, but for obvious reasons I have never mentioned the matter in the Dáil before. The Minister asked did we send this particular class of propaganda to the Minister for Defence. Well, I took it for granted that the propaganda referred to was received by every member of the Dáil, and by the Minister for Defence himself.

Mr. O'HIGGINS

I never saw it.

However, even though the propaganda has not been received by the Minister himself, I am sure that he would desire that every possible ground for the removal of such complaints should be put on the one side, and that any such complaint coming to his notice, or to the notice of the Minister for Defence, should be inquired into. It appears to be the case that as every member of the Government party seems to be satisfied with the Minister's explanation, they are in possession of other information, or have access to the places where these complaints are made, and in that way have some information at their disposal, or means of inquiry into these things, that we in these benches have not. We are, as far as I can see, here on sufferance, and can only get statements on these matters out of the Ministry by making a complaint, and in some cases do not succeed in getting the actual information looked for. That complaints are justified is, I think, beyond dispute. We had a case referred to here the other day by Deputy Everett, regarding the treatment of prisoners in Wicklow jail, and it was only as a result of that complaint, and not before, that the actual matter referred to was settled. I understand in that particular case the prisoners have since been removed to a place perhaps somewhat better than the place where they were complaining of their treatment. I would like to say that every reasonable ground for suspicion should be removed, but most of the clauses put a premium on suspicion. Many suggestions have been made in the various amendments for the purpose of having a better check over things such as have happened in the past, but every such suggestion has been turned down by the Ministry, and when made by us is taken as a vote of no confidence in the Executive Council.

Now I think that is not the right spirit in which an amendment with that intention should be received by the Minister. I say that because a case like the Wicklow case has only been dealt with after complaint. I think it is up to the Ministry to make a reasonable provision that such cases should not occur again and by accepting an amendment of this kind they would be making reasonable provision for such cases.

The Minister rather deprecated the appointment of these Committees by such bodies as County Councils rather than by bodies such as would be set up by the Dáil or the Executive Council. He dealt, rather sharply I think, with Deputy Johnson upon that. He does not think it right that the County Councils should be considered as proper bodies for selecting such Committees as this. He instanced a procession of circumstances in connection with County Councils and particularly he quoted the Kerry County Council. Now the Kerry County Council is not a fair case because, unless I am very much mistaken, the Kerry County Council is in suspense and is not functioning owing to the activities of certain of its members. But legally and according to regulations approved and passed by this Dáil the heirs to the Co. Council of Kerry would be empowered by this amendment, if adopted, to appoint such Committees. The same would apply to any other County Council or Borough Council that happened to be suspended by the operations of another Act of the Dáil. Now I suppose that the legitimate heirs to the Kerry County Council, and to other suspended County Councils, would be entitled to make these appointments. There may be some doubt about that, but, at any rate, the argument of the suspended County Councils does not apply at all by any means. It is quite true, as the Minister says, that the circumstances of the times might make it advisable at one time to do a certain thing that may not be possible under the regime to-day. Quite true. Some of us are of opinion that an Act which might have been inadvisable, unwise and not justified six or twelve months ago might be quite advisable and wise enough and, from the point of view of public policy, justified now. I suggest to the Minister that he should take that point into consideration.

I am sure that Ministers who supported the Minister for Home Affairs, and also the Deputies who supported him in asking for an all-night sitting did so in the interests of the passing of this Bill, and they now show that interest by absenting themselves from the Dáil during our discussions. Deputy O'Shannon's last speech on this Bill was not heard by any of the Ministers because they were absent, and was followed by very few Deputies on the Ministerial Benches. I am not going at this hour to criticise those who ask for an all-night sitting, but I want to point cut a few facts in support of this amendment of Deputy Gavan Duffy. It is intended to give power to the County Councils so that the Minister may be able to take into his confidence the duly elected representatives of the people in the County Councils. If the Government are anxious to get the Bill through before morning one would imagine that the Government Benches would be packed with Deputies. We are here on these benches to a man ready to defend any amendment put forward by Deputy Gavan Duffy. Now with regard to the actual subject raised by this amendment the President declared that half the unfortunate people living outside in lodging houses were worse off than the prisoners interned.

Are they not?

There is a great deal of argument for and against. I think it is perfectly right, if Deputies hold that people outside are worse off than the prisoners, that this amendment should be accepted, and that their dwellings should also be inspected by Committees appointed by some such authority as the County Councils. This amendment does not suggest anything that the promoters of the Bill should fear; there should be nothing to fear from the people of the Saorstát if everything is as stated by the President, and by the Minister for Home Affairs. Why then not agree to this amendment? It would look as if there was something to fear, and that there was something wrong.

If the prisoners are treated as explained by the Ministers then there can be nothing to fear. So far as he is concerned he can allow any committee appointed by anybody to inquire into these matters. But we find that the Minister is up against allowing any committee to be appointed, or giving any Committee an opportunity of visiting the prisoners, and of seeing that doctors and sanitary officers and other officers requiring to visit these prisoners have the privilege of doing so.

Surely, the County Councils are bodies of men that could be trusted? If we can possibly get the Minister for Home Affairs to accept any amendment that will improve this Bill I am sure that our night's work here will not be in vain, but we find that the supporters of the Minister are just as hard and unreasonable as the Minister himself. It appears that the Minister will not accept the principle of this amendment unless he is able to assure himself that the persons who will be appointed under it are law-abiding citizens of the Saorstát. Furthermore he is so strongly against the appointment of these County Council Committees that I am of opinion he imagines that the County Councils want to make a job out of these Committees and appoint some people who will have to be paid. I hope that is really not the view of the Minister, and that he will give the members of the County Councils the right to appoint these Committees. I can assure Deputies on the benches opposite, that there are patriotic men among the County Councils of this country. The people selected the County Councillors as they did the members of this Dáil. The members of the Executive seem to think that they are the employers of the people, but they would soon find that the people are really their masters. The people are sovereign and the day will come when they will prove they are the masters of the members of the Executive Council as well as of the members of the Dáil. I support this amendment, because it gives a facility to the County Councils to see to the welfare of the prisoners, and because it classifies them as genuine citizens of the State. It gives them an opportunity to visit prisoners interned in their areas. The amendment provides that it shall be the duty of every County Council within whose area persons are detained in custody without trial under this Bill to appoint a Committee consisting of such number of persons of good standing in the locality as the Council shall deem necessary, etc.; it places a duty upon this Committee and it specifies that duty which amounts to this that it will advise the Minister for Home Affairs or the Minister for Local Government or some other members of the Executive Council with regard to the treatment of prisoners.

That does not in the least take the power out of the hands of the Executive Council. If we are going to classify, or if, in your opinion, you think this amendment ought to classify county councillors as law-abiding citizens, then if you did that you should certainly accept this amendment. In speaking of the County Councils I was going to say you have thirty-two. I am sorry we have only twenty-six, but we are looking forward to the time when we will have thirty-two and when we will be all together again. But out of twenty-six County Councils you mention one Council that seemed to have advised people to take up arms against the Government selected by the majority of the people of this Saorstát——

Deputy Lyons has now considerably exceeded his time allowance. He has spoken far beyond the time limit. I thought a little time ago he would finish his peroration.

I want to congratulate the last speaker upon the brevity and lucidity of his speech——

On a point of order I think I have the floor still.

The Standing Order says "that in Committee no Deputy shall speak more than ten minutes at a time." You have spoken fifteen minutes.

Well, I will allow Deputy Milroy to go on for the sole purpose of getting another ten minutes later on.

I do not want to interrupt the proceedings, but I simply could not allow the occasion to pass without congratulating the last Deputy upon the brevity of his remarks, in view of the fact that it was he suggested that we should continue our discussion to a late hour to-morrow morning, when he said that the speeches on this side of the Dáil would not in any way impede the progress of legislation.

Neither will they.

I want also to compliment the Deputy upon the lucidity of his remarks. They are so lucid that when he sat down I think a few of us really understood what was the drift of his remarks.

I believe you.

There is one other point I want to make, and it has not been made by anybody else—

By anybody else?

Wait until I make my point. The point I want to make is this:—that the Deputies on the other side of the Dáil seem to fail to realise that they are sitting in an Irish Parliament.

So they might when you have Bills like this.

They seem to think that they are sitting in the benches in the English House of Commons facing Sir Hamar Greenwood instead of facing an Irish Minister. The discussion tonight in regard to this measure, and this amendment, seems to be absolutely in a world apart from realities. The Minister who is in charge of this Bill has only one consideration, that is to preserve the security of life and liberty in this country. Every utterance from the other side of the Dáil seems to be based on the belief that he was concerned with assailing life and liberty in this country. The remarks from the other side of the Dáil would have been very pertinent to a discussion of this kind if they had been confronting the British Ministry in the English House of Commons. Let them remember that they are sitting in an Irish Parliament, and that those whom they are attacking and criticising are the custodians of order and government, of life and liberty in this country, and let them adapt their arguments and their criticism to that fundamental fact.

The Deputies on this side of the Dáil realise the fact quite as well as Deputy Milroy. If I may be allowed to say so they have been directing their criticism and their comments and their suggestions to the Bill before the Dáil, and not at all to the Minister, either as a person or as a Minister, except in so far as he happens to be a Minister who is in charge of the Bill during its course through the Dáil. It is ridiculous nonsense for any Deputy to suggest that we here forget that we are in an Irish Parliament, and that we are not facing the gentleman to whom he refers. But we are not prepared, and I hope that no party and no section that ever gains representation in the Dáil will ever be prepared, to neglect the first duty of public representatives, and that is to give close and careful examination to every measure that comes before the Dáil, and to assist, as we are endeavouring to assist the Ministry of the day, in producing a measure that will be satisfactory. The Deputy's remarks have not at all been addressed to the amendment before the Dáil. I am not going so far as to say that his remarks were quite out of order. But I can quite understand that he felt he had got something to say and he wanted to say it. Now we would have welcomed a reasoned and fair, or even a little beyond fair, criticism of any of the points that have been made on this side in support of the amendment, if that Deputy or any Deputy had made an effort to reply. But no, he did not do anything of the kind. He leaves it all to the Ministry. And then, because some of us have the damnable audacity to attempt to assist the Minister we are accused of something that in certain periods in Irish history were considered not very creditable to Irishmen.

Deputy Milroy has broken the spell. We have been accused on this side of doing something which was only worthy to be done in the British House of Commons, and he reminded us that we were not facing Sir Hamar Greenwood. Sir Hamar Greenwood even with all his enormities did not venture to introduce into the British House of Commons any Bill giving to the Executive, against the people, half of the power which is embodied in this Bill.

Against the people.

Against the people.

This is for the protection of the people.

That is the opinion of the Minister. I am quoting my own opinion—that the power that is given in this Bill to the Minister is against the people.

What people?

The Deputy has one notion of responsible government, and we have heard another theory of responsible government from the Minister, both of which are very interesting and very extraordinary. The Minister has only one consideration—to preserve the life and liberty of the people. Because of that, therefore, the Dáil must say, "ditto." The Dáil must not open its mouth. The Dáil must not utter one word of criticism, because the Minister in charge of the Bill has only one consideration—to preserve the life and liberty of the people.

Hear, hear.

It has often been said that the road to hell is paved with those good intentions. I venture to say that Deputies have in the past held the view that their business was to realise they had a responsibility to their constituents, and to express their views even though they were in criticism of the views of the Minister. Surely, we are not at that stage that because the Minister has good intentions, everything that these good intentions leads to must be wise and beneficent? It is an utterly false doctrine. We have a right to assume that the intentions of every member of the Dáil are good and just as well-intentioned as those of the Minister; but if we differ in the practical application of those good intentions, are we to be freed from criticism? The good intentions are not going to save the Minister from criticism, and good intentions are not going to save a Bill from being examined. Deputy Milroy should not pretend that he thinks because one Minister is sacrosanct, every other Deputy must bow down and worship.

I do not think any Minister is sacrosanct.

I am glad you agree with me in that.

The Ministers are quite aware that I have no such delusions about their infallibility——

There is one thing Deputy Milroy and I can agree upon, and that is that one would hope to hear in this Assembly, the organ of public expression, that those views of Deputy Milroy would occasionally find expression. I want to deal seriously with the question raised by Deputy O'Brien. He suggested as a reasonable modification of this amendment that the Minister might himself nominate a committee of inspection which would have the confidence of the people generally, and the Minister agreed with the principle; he said that such a committee would be required to report to the Minister. I am not sure whether that was intended to be exclusive, or whether it was to be a report to the Minister as a matter of form and order, and that the report would in the normal course of affairs be made public. If the Minister grants that I would advise the Dáil to accept that suggestion, but if, on the contrary, it is not intended to publish these reports, then there is nothing gained. The whole point of this amendment is, as I understand it, to ensure that public confidence shall reside in the conduct of the servants of the State, and especially those who are in charge of the prison camps, and that public confidence can only be ensured when there is some supervision, and when the reports of such supervisors as may be appointed can be made public. I do not want to delay the Dáil by dealing to any extent with the County Councils; but one cannot refrain from asking Deputies when did they lose their faith in the County Councils? I think Deputy Milroy will remember, and surely the President will remember, that the County Councils were to be the units out of which were to be formed the National Council. It was to be the basis of the legislative authority. But now none so poor as do them reverence. I wonder what was the date of this loss of faith. Was it the date of the last election for which Deputies were so closely responsible when they knew from first-hand knowledge what they were doing? I want to say on this that I would not like it to appear even with any stretch of the imagination that there was any desire on these benches to act dilatorily or to delay the Dáil. We are honestly desirous of discussing this measure thoroughly and carefully, and to amend and improve it. The sooner that can be done the better we shall all be pleased, and I think, perhaps, the President can rely on the Deputies sitting on the opposite benches, judging by precedent, and I hope no Deputies sitting on these benches will even give an excuse for Deputies to think that they are acting in a dilatory fashion.

Never, never.

We do desire to amend this Bill. We have put down a series of amendments that have been carefully thought over, that are honestly intended to improve the measure, and I hope the Dáil will give thorough consideration to them. I trust it will not be thought that because Deputies here are obliged in the absence of any contrary argument to continue the discussion for the purpose of enlightening the Dáil, that there is any desire to obstruct the ordinary legislative machine.

Before the Dáil votes on this matter, I should like very briefly to deal with two points made by the Minister for Home Affairs. I need not deal with what the President said because he was very completely disposed of by that other very great artist—Deputy Lyons. The Minister for Home Affairs deprecated the idea of allowing prisons to be visited by persons appointed by the Kerry County Council. This proposal does not speak of the Kerry County Council, but of the County Councils in whose areas these established internment camps are situated, such as Gormanstown, the Curragh, and so forth. My impression is that all these established camps are situated in areas where the Government is very thoroughly in control and in areas where nothing can be said against the County Council, such as has been said by the Minister against the Kerry County Council. The Minister before he volunteered to accept the proposal in principle to a certain degree argued that it was not necessary on the grounds that in this Dáil from the Ministers here we could get all the information necessary. The Minister is under a complete misapprehension if he thinks that the case given by the Labour Benches is unusual. I will give him another. Two or three weeks ago I wrote to the Minister for Defence in connection with the death in prison of a Doctor who was a member of the last Dáil. I wrote privately in order that it should not be said that this was a matter of making propaganda. The circumstances connected with the death as to the non-admission of the wife and relatives were circumstances which required explanation, and I wrote fully to the Minister. I had a very courteous reply to the effect that the matter would receive attention, but I had nothing more. Another Deputy asked a question on the subject in the Dáil a day or two ago, and got a very inadequate and unsatisfactory reply. That is just an instance to add to the other instances that have been given in order the Ministers may realise that if they think they are doing justice to complaints in connection with prisons and detention camps they are labouring under a delusion. Matters of that kind ought to be dealt with promptly. I am unable to get information which one would think would be volunteered very readily, and with all possible speed. The Minister gave an undertaking of a somewhat vague character. I do not profess to know how far he committed himself, but he did not altogether object to inspection from outside, and he contemplated persons who would have a right to go into the prison. If that is the Minister's frame of mind I would invite him to agree to get fit and proper persons to undertake that work. If the County Councils are not allowed to undertake it, it should be the members of this Dáil who are medical men. Yet can I be blamed if I have misunderstood the Minister's undertakings when I recollect that only yesterday a proposal to depute members of this Dáil and of the Seanád who are medical men, nearly all of whom are strong supporters of the the Government, was vehemently objected to by some Ministers? If these are not proper persons to inspect, who are? If these are not proper people to allow to go into the detention camps, whom shall you consider proper persons? In these circumstances and owing to the vague manner in which the Minister dealt with questions from the Labour Benches as to the character of persons he would allow to inspect the prisons, I cannot accept the assurance he has given as being anything like satisfactory.

May I intervene to explain that there are few people in this Dáil or outside of it who have a longer experience of the business of local authorities than I have. I understood that my business in connection with local authorities was concerned with matters which affected local authorities. I would remind the Deputy who has just spoken and who is perhaps the greatest of all artists either in this or any other assembly, that the roads of this country are a very serious consideration for the County Councils and when they master that and if we are lax in our duties and responsibilities and in the particular things which concern us here—

Do I understand the President to suggest that the prisoners will remain in prison until the roads are made right?

I say if we are not capable of discharging the duties of our office it will be for the County Councils to take on the extra work and assume responsibility where we are deficient. Apart from the roads there is the question of rates, and apart from the rates in the County Council which the Deputy instanced there is a grave state of civil commotion. What have been the efforts of the particular County Council in question. Did they concern themselves with matters of vital importance to themselves? If any damage has been done there the County Council, or their successors, will have to levy rates but in the plenitude of their administrative capacity they find time to tell us how to do our work and correct the omissions and incapacity of the Ministry. We do not require it. I have a recollection, Sir, that on the last occasion when I was a member of a local authority a question arose as to the appointment of Visiting Justices—that is what they were called at the time—gentlemen who had taken the oath of allegiance to Deputy Gavan Duffy's friend.

And the late Minister for Finance, God rest his soul, sent down word that he did not see any objection to appointing them, but the Minister for Home Affairs sent down a message that we might not appoint them. The one, I expect, is reaping the result of his labours; the other is one of our guests; and if he did not consider that the prisoners held by the foreigner should be provided with visitors at that time, what right has he now, or anyone on his behalf, to ask us to appoint visitors to see how he is getting on wherever he is at this moment?

Amendment put.
The Dáil divided: Tá, 13; Níl, 42.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás MacEoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Seán Ó Maolruaidh.
  • Micheál Ó hAonghusa.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Earnán Altún.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hOgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Risteárd Mac Liam.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Seán Mac Eoin.
  • Proinsias Mag Aonghusa.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
  • Micheál Ó Dubhghaill.
  • Croistoir Ó Broin.
Amendment declared lost.

I move to report progress.

I second that motion.

Mr. O'HIGGINS

I am afraid I could not agree to that suggestion.

Motion made and question put to report progress.

The Dáil divided: Tá, 13; Níl, 42.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás MacEoin.
  • Maolmhuire Mac Eochadha.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Seán Ó Maolruaidh.
  • Micheál Ó hAonghusa.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Aifrrid Ó Broin.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Earnán Altún.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hOgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslai.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Croistoir Ó Broin.
  • Risteárd Mac Liam.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Seán Mac Eoin.
  • Proinsias Mag Aonghusa.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
  • Micheál Ó Dubhghaill.
Motion declared lost.
Amendment 34.—"In sub-section 1, line 18, to delete the words `death or' "

Ba mhaith liom iarraidh ar an Dáil glachadh leis an leas rúin seo agus na focla "death or" a bhaint amach as. Baineann an rún leis an píonús atá ceapaithe i gcóir coirthe airithe. Is é mo thuairim nach cheart san am seo de'n lá an píonús seo a choimeád san roinn seo. Táim in aghaidh an phíonúis seo san áit seo, ar a lán cúiseanna. B'feidir go bhfuil gádh le pionús mar seo anois agus arís acht, mar sin féin, pionús barbarach atá ann. Ní feidir le duine ar bith a rádh gur cóir nó gur ceart duine a chur chun bháis no iarraidh ar dhuine eile duine a chur chun bháis. Tig beatha ó Dhia agus ní cheart do dhuine beatha a bhaint fhád's nach feidir leis ía chruthú. Mar sin fein, caithfidh mé admháil gur ríachtnach, corr-uair, daoini a chur chun bhais. Acht do réir mo thuairime ní ceart an pionús mór seo a chur ar dhuine fhád agus tá pionús nios lúgha fóirstineach do'n choir. Is é mo thuairim gur maith an prinsipiol é gan nios mó pionúis a chur ar dhuine na an pionús atá fóirstineach do'n choir. Táim cinnte gur leór an pionús eile atá ins an roinn seo agus ar an adhbhar sin nach bhfuil gádh le pionús an bháis. Iarraim ar an Dáil na focla seo a bhaint as an Bhille.

In moving the deletion of the words "death or" in line 18 of sub-section 1, section 5, I am asking the Dáil to remove from the scale of penalties prescribed in the Bill the death penalty. The section, as a whole, lays down the punishment for offences in the Schedule. The first portion lays down the punishment of death or penal servitude for any term, not less than three years, for any person found guilty on indictment of any of the offences mentioned in Part I. of the Schedule. Now, while on principle opposed to the death penalty—the most terrible penalty that can be exacted by any State or community—I admit freely and frankly that there are occasions and there may be offences for which the commonsense or, perhaps, the sense of expediency of society, has found that the death penalty would be, if not the right penalty, at least the advisable penalty.

at this stage took the Chair.

For all that, I think the penalty on the whole is a relic of barbarism. I am strongly convinced that it can be only justified if no alternative penalty is sufficient to meet the case. If there is an alternative penalty, then that alternative penalty should be applied and not this particular penalty. The same principle, I think, holds good for other penalties. The penalty should not be excessive for any offence. If there is any alternative to the penalty of penal servitude for a particular offence, and if it happens that the penalty of penal servitude is too heavy a penalty, then the lighter penalty is the one which should properly be imposed. Sub-section I prescribes the death penalty for the offences mentioned in Part I of the Schedule. They are all offences connected with armed revolt against the State. There are times when armed revolt against the State results in actions which take away the lives of citizens—perhaps of innocent non-combatant citizens, perhaps of combatant citizens, enrolled for the defence of the State.

There are other times when the offences mentioned in Part I. of the Schedule do not result, and perhaps may not be likely to result in the loss of life. There are known to history, and in the experience of States, insurrections and even rebellions that have not resulted in the loss of life. In such cases I hold that the death penalty should not be exacted. The Sub-section permits the exaction of the death penalty even where life has not been taken by revolvers against the State, and I think that is conceivable even where the loss of life is not threatened, or at all events not immediately or directly threatened by the revolt against the State. For that reason I think it is wrong in policy, and wrong in principle, to keep the death penalty in this Section. I think there is sufficient authority under other Statutes for the exaction of the death penalty when the death penalty is justified. I do not think as yet that it is justified in this particular Section, and I ask the Dáil to remove it from the Section.

Mr. O'HIGGINS

I do not propose to accept the amendment which the Deputy has moved. Every State reserves to itself the power of life and death in such circumstances, and to deal with such occurrences as are mentioned in Part I. of the Schedule. It seems to me to be unnecessary to argue the matter. Deputies are aware that we, ourselves, at an early stage of our existence as a State have felt compelled to resort to the death penalty. I think we would be unwise to abandon that power. I merely draw Deputies' attention to the fact that the death penalty in this case is not mandatory but permissive; that on indictment a person found guilty of the offences mentioned in Part I. of the Schedule could be sentenced to death or to any lesser penalty.

There is one point I would like to draw attention to, and it is that all the matters mentioned in Part I. of the Schedule are matters which arise out of, and are incidental to, a state of war existing in the country. This is a Bill giving powers to the civil authorities who will deal with its administration. Whatever argument may be put forward to justify the military authorities in the course of quelling an armed rebellion or an armed revolt in exacting the death penalty, no such argument, I maintain, holds good in this case. If the offences mentioned in Part I. of the Schedule are being committed, then it can be held that a state of war exists in the country, and the military authorities will be competent to deal with that state of war, and to take measures, even the extreme measure of exacting the death penalty, to deal with that particular situation. I think it is extremely objectionable that when the civil authorities come to deal with these cases that this power should be given to them in the Bill for the offences specified.

This section really adds nothing, or practically nothing, to the existing law. The death penalty is applied only to the three offences in Part I. of the Schedule. Every one of these offences is treason against the State, and that is a crime for which the death penalty has always been inflicted. There are no improper or irregular courts to try these cases, because this Clause provides that if any person found guilty on indictment—that means that he is indicted and tried by a jury of his fellow-countrymen—does not deserve the extreme penalty, then in that case if the Judge thinks fit that the extreme penalty ought to be inflicted, I do not know what other punishment we could really impose. If the person was tried, not by indictment for offences under this Bill, but tried on indictment for treason and found guilty of treason against the State, the judge would have no option but to order him to be hanged. But under this Bill you allow him to get off by a lesser penalty if it is thought that a lesser penalty would serve the case, and there is a provision to send a man to penal servitude for three years. It seems to me that this Clause is really an amelioration of the existing law so far as these three offences are concerned. It is to be remembered, too, that the prisoner will be tried by a jury of his own fellow-countrymen, and not by an extraordinary tribunal.

I am sorry I cannot agree with Deputy FitzGibbon in his argument. The offences mentioned in Part I. of the Schedule are undoubtedly of the nature of treason against the State, but it is not, I believe, the fact that treason against the State is always punished by the death penalty. It may be that in many States persons found guilty on the charge of treason against the State are liable to the death penalty. No doubt the Section is per missive, as the Deputy points out, and is not mandatory. But, why then have it inserted in this particular Bill? Sufficient provision is already made elsewhere by other Statutes for the infliction of the death penalty, under Statutes that are in a way permanent Statutes. This Bill, if we accept all the statements of all the Ministers, and of those who support it, is temporary and transitory. Why then is it necessary that it should be provided for here? I do seriously submit that there are times and occasions when a verdict of guilty pronounced by a Judge on the finding of a jury in a case of treason against the State should not be punishable by the death penalty. If there is an alternative that will carry out the purpose of the State, and of the State authorities, I submit that that alternative ought to be adopted, and not the extreme penalty. The only argument in favour of such a penalty is the argument of necessity, and I submit that time, circumstances, and occasions are factors by which we must judge of the necessity. All through the discussions on this Bill I have maintained that if it is to serve any useful purpose whatever, that purpose is to make easy that passage from war, or a kind of war, to peace. For that reason I am strongly of opinion that nothing that is not intended to be done, and nothing that is superfluous or unnecessary, should be brought into the Bill at all, but that everything that is possible should be done to make the transition easier and to help to restore public confidence and public tranquility, and to remove suspicion and distrust. Now, the infliction of the death penalty can only be as a deterrent or as a punishment. I think we have had enough experience in this country to know that, on the whole, the death penalty as a deterrent, or as punishment, has not been a glorious success. It may be claimed that recent executions have crushed an insurrection. I beg still to doubt that. I believe that the insurrection has been crushed largely because of its own inherent wrongness, and not because a particular measure was adopted against certain of its adherents. It is a fact well known in the experience of States, and in political experience generally, that the infliction of the death penalty for political offences, so far from being a deterrent, has rather acted as an irritant, and has helped to continue and to perpetuate actions against States which might otherwise have not been taken. I do seriously submit that in this period, when to a considerable extent, if passions are not exactly dying down, violence against the State is dying down, that it is a wrong time to dangle before the minds of the people this particular penalty.

I wish to draw the attention of the Dáil to what is embodied in this sub-section. "Any person found guilty on indictment of any of the offences may be sentenced to suffer `death.' " Amongst the offences mentioned are attempting to threaten a person in furtherance of armed revolt. I think it is unwise to empower a Judge to inflict the death penalty for that offence, because it is so difficult to prove an attempt to threaten a person in furtherance of an armed revolt. It is almost impossible to prove an attempt to threaten. You might be able to prove the threatening, but to prove an attempt at threatening, I submit that is very difficult. It must be a hidden thing, if it is only an attempt to threaten, and that, I submit, is a matter which it would be difficult to prove. There is also a penalty for attempting to remove any property in furtherance of such revolt. That is much easier to prove than an attempt to threaten, but I submit it is not a crime of such enormity as to warrant the infliction of the death penalty or, the power to inflict the death penalty. The range of offences even in the three paragraphs of Part I. of the Schedule, all of which offences may subject the offender to the death penalty, is so wide that I think the deletion of the two words proposed ought to be accepted. We are not dealing with the Schedule, but inasmuch as the paragraph sought to be amended directs attention to the Schedule and to all the offences in the Schedule, and as some of these offences are of a comparatively minor nature, I would ask the Minister to accept the amendment, and to remove the death penalty from this Bill.

This Bill, as has already been explained, makes provision for dealing with offences during the transition period, the period between the time when the people acted before they thought, and the period we are now passing through, when the people will think before they act again.

It is quite obvious from the action which the Government has taken during the latter stages of the recent trouble when a state of war might have been said to have been going on, and when the Government for any reasons did not carry out the execution policy in the case of some very responsible leaders who fell into their hands, that that was a proof at any rate that the policy of executions was not the best policy in the interests of the Government itself. I think that is one reason why for this short period, when there is some hope that the same thing will not happen again, this thing should not be dangled before the eyes of this country. The Clause is undoubtedly permissive. I think it is a very unwise policy now when we should have some hope of a brighter outlook that this thing should be brought up again. The Minister said it was unnecessary to argue the matter and that it would be unwise to abandon the power, which I take it is maintained in the existing law, in respect of any clause which may be inserted in the Bill which is only for a temporary period. The Minister should take into consideration that many of the things which are mentioned in the First Schedule and defined here are things which were encouraged by themselves during the last four of five years. I think that in the hurry of legislation, people who have done wrong and have admitted that they have done wrong, or whose leaders have admitted the unwisdom of the policy adopted, should be allowed some time to think before it will be assumed that they are going to act again in the same way that they have acted for the last 8 or 9 months. I think it is unwise in the present transition period and when things are said to be normal to bring forward a measure of this kind to deal with the situation when the necessity does not exist for the putting up of such legislation.

Amendment put.
The Dáil divided: Tá, 13, Níl, 38.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás MacEoin.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.
  • Seoirse Ghabháin Uí Dhubhthaigh.

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.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Earnán Altún.
  • Gearóid Mac Giobúin
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hOgáin.
  • 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.
  • Seán Mac Eoin.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Tomás Ó Domhnaill.
  • Earnán Ó Blaghd.
  • Uinseann de Faoite.
  • Seán Ó Maolruaidh.
  • Maolmhuire Mac Eochadha.
Amendment declared lost.
(At this stage An Ceann Comhairle resumed the Chair).

I beg to move "in subsection 2, line 22, to substitute the word `may' for the word `shall.' "

The subsection as it stands prescribes one single high water mark of punishment for all the crimes that are in Part II. and whether the person convicted is guilty of the extreme crime of having possession without lawful authority of firearms with intent to use them, arson, or the comparatively trivial offences of aiding and abetting in the sale of illicit liquor, he must get one cast-iron penalty of hard labour for 12 months or of a fine of £50 or in default of payment, hard labour for a further term of six months. It seems to me altogether beyond all reason to ladle out one common penalty which cannot be carried up or down for all the offences in this Schedule in Section 2, from the most guilty down to the most technical crime of aider or abetter. I think some discretion ought to be left to the Court of summary jurisdiction before whom the man is tried, that where they are satisfied the guilt is a technical one they ought not to be compelled to inflict this extreme penalty which they ought to be bound to inflict on the most guilty person or the most hardened criminal. I am sure what was in the mind of the framers of the Bill was a desire to relieve those Courts of Summary Jurisdiction from the responsibility of having to inflict heavy penalties and a desire to place that responsibility upon the shoulders of this Dáil by suggesting that we should state these were to be the penalties and the Judge would say "Then I have no option." It seems to me that that is likely now as in the past to defeat itself and that a man's mind whether he be judge or jury revolts against the penalty the law compels him to impose. He has to salve his conscience one way or the other. We find in the old days when a theft to the value of 5s. was a capital offence, jury after jury found a man guilty of stealing a silver teapot worth 4s. 11d. when everyone knew it was worth £5, £10 or £20. They had to put in that value against their conscience in order that the penalty might not be imposed. Here you will have people brought up and charged for aiding and betting in the same way. Judges before whom they come, if they are people who are so weak that they may not be trusted to give a proper penalty, would be quite weak enough to decline to convict in the case of grave crimes. This compulsory infliction of a grave punishment for light crimes seems to me to be based on a want of confidence in our own Judges. I think they ought to have sufficient confidence in themselves in selecting a man that was sent down to be a District Judge and sufficient confidence in the District Judges whom they send to be able to trust those men to give a proper penalty where the crime is clearly proved before them. I hope the Government will see their way to accept this amendment and if necessary to modify the clause later on. I suggest they ought not to enforce this hard and fast penalty for every crime, no matter how grave or little.

Mr. O'HIGGINS

What happened in regard, to those offences is that the maximum was brought down and merged in what we believed ought to be the minimum. Deputies will agree that those offences, set out under the twelve heads in Part II. of the Schedule, embody largely the kind of crimes that are menacing the life and the future of the country— one no less than the other. There seems to be a tendency to pick out there, as a comparatively minor or trifling offence, the paragraph dealing with poteen. I think that Deputies who so pick out that section fail to appreciate the position that has been reached in certain parts of the country in regard to illicit distillation, and fail to appreciate its results. If you take up the paper any day and find some particularly hideous or revolting crime, you will almost invariably find that it has happened in the poteen area, where children going to and coming from school are reeling round the roads drunk with poteen. What chance have they of developing into decent, self-respecting citizens, when they degrade themselves so young? Man, we are told, is a rational animal. He is sometimes. He is not a rational animal when he gives himself up to the poteen craze. He divests himself of the only thing which distinguished him from the brute creation, and he becomes, in fact, a beast. Every unnatural crime, every bestial crime that is committed will be found within the zone of the illicit still. It does menace the life and the future of the country. No person who appreciates the extent of the evil, who appreciates its re-actions on a future generation, will think that it ought not to have been set out there amongst those other grave offences that are menacing peace and prosperity and stability here. So much for that.

This Bill has a lifetime of six months. We have felt that these coming months are likely to be particularly critical—critical intrinsically and critical in their re-action on the whole trend of affairs here in the future. We have said that that particular penalty ought to be imposed on a person found guilty of any of these crimes within the coming six months. The penalty was not fixed high. One could pick out offences from amongst these for which that particular penalty would be, fairly considered, a low penalty. But we brought down the maximum and merged it in what we believed was the minimum penalty that should be imposed by anyone with a proper sense of the gravity of these crimes, and their re-actions on the country. We made that mandatory rather than permissive. Because if, in the special circumstances, the Executive Council believed that particular crimes ought to be met with particular penalties, then they ought to say so. They ought to take upon themselves the responsibility of that conclusion. Having examined the position in the country, if they believe that particular offences stand out as particularly menacing to the Nation, and that certain penalties ought to be imposed, then they should say so in a mandatory fashion in their legislation, and not leave it simply to such accidental circumstances as the outlook of a magistrate here and a magistrate there to decide. There is something haphazard and casual and fortuitous in that. Deputies may put hypothetical cases and say that one could conceive cases in which these penalties would be harsh. Deputies may picture the case of a man coming home from the fair, perhaps having got a certain amount of stone beer, and finding his house burning. He gets information that it was "A.B." up the road who came down and scattered petrol around the floor, and set fire to the house. He goes up the road and burns "A.B.'s" house in intense provocation. Deputies might say that for this offence, in face of such great provocation, this penalty or the other penalty mentioned in the Bill, would be excessive. The penalty is the penalty which it is felt should normally attach to that particular crime. If a Judge or a Magistrate, having carried out the law by passing the sentence, thinks that it would be right for him to make representations to the Executive to the effect that there were in that particular case, which was heard by him, mitigating circumstances—circumstances that would call for the exercise of the prerogative of mercy—then, no doubt, the Judge or Magistrate will make such representations. But we wish to set out here clearly that these ten or twelve offences are offences which are menacing the very life and future of the country, and we do not discriminate between them. In their own way and in their own proportions they are all equally grave in their effects and in their prospects if they go on unchecked. We set out those and lay down for them one single penalty as mandatory within the six months which constitute the lifetime of the Bill. I think that is a sound thing to do. I think if the Executive Council, having surveyed the situation and examined reports, believes that certain offences do really gravely menace the future of the country, they should take the responsibility on themselves of assigning a penalty which will be at once the maximum and the minimum and leave it to the discretion of the judge or magistrate to make such representations as he thinks it necessary to make in a particular case.

This is a most illuminating speech and it is a most extraordinary doctrine. We have a list of offences of varying enormity and the Executive is to say what the sentence shall be in every case where an offender is found guilty by a Court of Summary Jurisdiction. The sentence is to be fixed before-hand for this long series of varying offences and the Minister cites what, I suppose, is the precedent of capital punishment being the inevitable end, so far as the Judge is concerned, of a verdict of guilty. These offences, by the way, are all supposed to be of equal demerit, requiring the same sentence, such sentence to be imposed before-hand by the Executive Council. One of the offences is the possession of any land mine, or other similar explosive machine within the six months. What has been said about the possession of land mines recently in this Chamber? It is not a case of the possession of a gun or revolver, not even the possession of a bomb, which might have been accidentally left, but the possession of a land mine, punishable even after this Bill becomes an Act, and is in operation, by death at the instigation of the army. But in the transfer—at least in the corresponding powers that the Civil Authority is to take—the possession of a land mine is to be of equal enormity, in the mind of the Executive, with the putting on of a uniform, or any part of a uniform, of a soldier or policeman or having possession of a soldier's cap. If found guilty, the same penalty must inevitably fall upon the offender as if he were found guilty of being in possession of a land mine. Notwithstanding all the Minister says about the evils of poteen and illicit distillation, I do not believe the Dáil thinks for a moment, whatever way it may vote—and I believe in this case the Dáil is going to vote against its convictions, though I would like to be disillusioned—that a person having possession of any illicitly-distilled spirits is guilty of an equal offence with another person who is in possession of a land mine. Is there any Deputy will say that they are equally criminal?

The Minister for Agriculture is capable of a good deal, in this particular sphere, but I challenge him to say whether the possession of a land mine, within the next six months, is not a greater offence than the possession of illicitly-distilled spirits. The punishment that is to fit those crimes is to be the same in any case and there is to be no alternative except, if you please, the Judge who does as he is told may, if he thinks well, make representations to the Executive, say that the law they passed was a very unwise and a very foolish one and pass animadversions on the Dáil or Oireachtas. That of course would be quite outside his authority but he is invited to do it, or at all events invited to tell the Executive that they should not be so foolish as to introduce into the Bill such a Clause and ask them to reconsider it. That is what he is asked to do in the Courts of Summary Jurisdiction. I wonder what is the meaning of this—"the maximum shall be the minimum and the minimum shall be the maximum." Those that are up shall be down and those that are down shall be up. I wonder whether the Minister has considered the application of Article 72 of the Constitution to this sub-section. Should a minor offence be classed as one which should entail imprisonment for twelve months with hard labour or imprisonment for eighteen months, with hard labour, provided the man has not got fifty pounds to spare? Can an offence which is punishable by such a sentence be classed as a "minor" offence? I suppose the Minister will argue that if this Bill becomes law, then these will be minor offences which are triable by law, but in that case I hope the Bill that the Ministers are supposed to be preparing, dealing with the powers of the Courts and the jurisdiction of the Courts, will provide us with some guidance for the future as to what is a minor offence and what kind of punishment is applicable to minor offences and what kind of punishment is applicable to major offences. That by the way.

I hope the Dáil will be enlightened somewhat more fully than they have been as to the real meaning of this grouping of all these offences of such varying quality and providing that they shall each and all be punishable by the same sentence.

I think there must be some more reason in it than that told to us by the Minister. He must have forgotten the essential thing, or can it be that it was merely a sporting leap in the dark; that they had no real reason for it, but thought that perhaps it was an easy way of getting over a difficulty, or that they had not confidence in the Justices they have recently appointed; that these Justices have not experience enough, and that they might be afraid of making mistakes in the infliction of the punishment? Surely there must be some other reason than that vouchsafed to us.

Deputy Johnson is anxious for my opinion on the question as to whether the offence of having a land mine is an offence of equal gravity with having a bottle of poteen in one's possession. I can answer the question simply, and say that it is not. If you consider the two offences in normal circumstances, or in anything like normal circumstances—perhaps I am hardly right in saying normal circumstances, but even in present circumstances, the offence is not the same. Deputy Johnson has evaded, or missed, the real point of the speech of the Minister for Home Affairs if he were serious in putting that conundrum to me. The Minister for Home Affairs was careful to explain that we had tried to impose the minimum penalty. That may offend the Deputy's fine sense of justice, but I think it will not offend the sense of justice of any practical man who takes a look at the present situation, or at the very large number of crimes that have been committed and are being committed every day, and who realises that the Executive must deal with all these crimes as if they were interdependent and connected, as they are. Now, it is not the same offence, and Deputy Johnson can argue from that, even from our point of view, that we are imposing a lesser penalty on certain offences than we could impose, because we consider that twelve months' hard labour is no more than an adequate penalty for the keeping of poteen. He is welcome to all the consolation that he can get out of that. He wants to prove us illogical even from our own point of view. If he wants to prove us illogical in this matter he must show that we are not inflicting, or that we are not asking the magistrates to inflict, a sufficiently heavy penalty on certain offences, because that is what it comes to. If he once admits the contention of the Minister for Home Affairs that the penalty set out here is the minimum penalty for the smallest offences, then our only offence in the matter is this, that we have not inflicted a sufficiently high penalty for other offences. He is welcome to all the kudos and all the consolation he can get out of that, but before he comes to the conclusion that we have committed any great error I would ask him to realise two things. The first is that we have not inflicted the same penalty for all the offences set out in the Schedule.

Nobody said that.

We have not, as I say, inflicted the same penalty for all the offences set out in the Schedule. The Deputy gave me at least the impression that we were inflicting the same penalty, but we are not. We are inflicting one penalty on anyone who is convicted, after summary trial, of any of the offences set out in the Schedule, and another penalty for anyone convicted on indictment. We draw the line there. We put the less serious offences on one side, and the more serious offences on the other, so that our regulations are not so sweeping as one would be led to believe if one came to the conclusion that we were inflicting the same penalty for all offences, whether tried summarily or by indictment. As the Minister for Home Affairs pointed out, it is open to the District Justice to make representations to the Executive to exercise the prerogative of mercy. If there are any cases where the offence is a purely technical offence, and I can readily conceive a man being innocently in possession of a bottle of poteen, and if in such a case a magistrate is of opinion that the offence is merely technical and that there is no moral guilt, he can point that out to the Executive who have undertaken a good many responsibilities and they will undertake this responsibility. There is the prerogative of mercy vested in someone, and it can be exercised. That is my answer to the question as to whether the possession of a bottle of poteen is the same offence as having possession of a land mine. There is another point that goes to the root of the whole thing. The Deputy may not agree with me, but I genuinely believe this, that men who were seizing other people's land, men who are enriching themselves quietly and privately under cover of the Irregulars when the Irregulars were burning houses and generally causing confusion, were just as bad as the Irregulars and morally were worse than them. He is a very poor type of criminal who will go out for no reason to burn his neighbour's house, but the man is as big as criminal morally who will go out while his neighbour's house is burning and steal a cup and saucer out of it. That sort of criminal takes advantage of the fact that some other criminal is burning the house, and while the house is burning he steals perhaps a loaf or a cup and saucer. No one pretends, other things being equal, that it is the same offence to steal a spoon or a cup and saucer as to burn a man's house, but though the law must make a distinction is there any difference, from any honourable or decent point of view, between the man who burns his neighbour's house and the man who takes advantage of the fact that another criminal is burning his neighbour's house to steal a spoon out of it? I put that conundrum to Deputy Johnson, and I invite him to answer it.

That is the kind of thing that is at the bottom of all this, and that is what is behind this Bill. I suggest that that goes to the root of the whole matter. Men who, during the last six or seven months went out, even in the smallest way, to take advantage of the people who were dishonouring themselves and their country, and who, even in a small way, went out to do themselves a good turn and to enrich themselves were, in my opinion, as big criminals as the men who were committing what would be considered far graver offences.

The Minister has put several questions to me. He has stated frankly that the offence of being in possession of poteen is not as grievous an offence as being in possession of a land mine. Nevertheless, he defends the minimum punishment for one offence being the maximum for the other. But there is no discrimination allowed in this Sub-section whether it is a first, a second or a third offence. There is no discrimination allowed in this Sub-section, no matter what the circumstances may be surrounding the commission of the offence. They are all guilty, and being guilty——

The Deputy is hardly quoting me accurately.

I do not pretend to be quoting when I say that I am inferring what I read in the Bill. There is the definite proposition here that a person guilty of any of these offences no matter whether it is a first, a second or a third offence, or even a thirty-first offence, shall be sentenced to a definite term of imprisonment with hard labour for twelve months, and if he has not got £50 to spare he will have to spend an additional six months in gaol. I maintain that the circumstances connected with many of these offences may be of a kind which would warrant a very much smaller punishment than eighteen months' imprisonment with hard labour. Just to illustrate what I mean, I shall give a quotation from a speech delivered by the Attorney-General in the Belfast Parliament. He was defending a Bill much milder than this, and he said "There is no term of hard labour known to the law exceeding two years. Once you exceed two years you go into penal servitude. I have never suffered penal servitude or hard labour in this particular form, but I am told that two years' hard labour is much more severe than five years' penal servitude."

If that gentleman is to be believed, and I have no doubt he was quoting from those who were able to inform him with authority, the punishment that is to be inflicted, and regarding which there is to be no discrimination left to the Justice, on the possessor of illicit spirits or a soldier's cap, is to be greater, if this is true, then the punishment of a person found guilty on indictment who shall be sentenced to suffer penal servitude for a term of three years, and to pay a fine. I say that the whole conception of this Section is bad, because it does not allow any discrimination to the Justice as to the term of imprisonment and the severity of the sentences, even the maximum of which ranges over a variety of offences and puts them under what might be called a flat rate. The Minister has not helped to satisfy my mind about this, and I hope the Dáil will generally agree with the contention of Deputy FitzGibbon that the word `shall' should be altered to read `may.'

In getting up a second time to speak I do not think anyone will say that I am doing so for the mere sake of obstruction. I make the Minister a present of the fact that for almost every offence set down in the Schedule I can conceive the penalty to be a very light one, but there are many of these offences for which I could almost equally conceive any penalty to be too great. Let it be granted that illicit drinking in any form is worthy of any punishment you please, but I am now going to take one case that has nothing to do with illicit drinking. It came within my own knowledge not many weeks ago. It was the case of four small boys who were brought up in the Dublin Police Courts for breaking some windows in a place of worship in York Street, almost opposite the College of Surgeons. That is an offence that would clearly come within Sub-section (8), which deals with unlawful injury and damage to property. I think it will be admitted that I regard any place of worship of any religious body, creed or sect, as a place which it is a sacrilege to touch. It was a grave crime with which these boys were charged, but, in my opinion, when these small boys were brought up in the Dublin Police Courts it would have been a far graver crime to have inflicted on them imprisonment with hard labour for twelve months, and then, in default of their parents being unable to pay £50, which I suppose they could get as easily as if the sum were £50,000, these boys would have to go back to gaol for another six months without any option being given to the magistrate to send them to a reformatory or to an industrial school. The magistrate would be bound to inflict the compulsory punishment that I have mentioned, and it is the gross iniquity of compulsory punishment of that kind that makes me press this amendment. I ask the Minister would be agree to say in this Section that a Court of Summary Jurisdiction "shall" for the offences numbered one to seven, and "may" for the offences eight to twelve, inflict these penalties? The offences numbered one to seven include all the graver crimes, and the offences numbered eight to twelve include pretty well all the crimes that are capable of modification. I do not move that amendment, but if the Minister would consider it between the time that his majority would have defeated this amendment and the time that we would come to the next stage of the Bill it would at least be some relief. The offences numbered one to seven are what would be called major crimes. These include the unlawful possession of lethal firearms, ammunition, bombs, land mines, wrongful possession of land, robbery under arms, arson, and masquerading as members of the Police Force, etc. The offences eight to twelve deal with the lesser crimes, involving unlawful destruction or damage to property. I quite agree that under them there might be crimes which would be lightly treated even with eighteen months' imprisonment, but on the other hand, for the offence of merely injuring property which might only mean the breaking of a window in an empty house, it seems to me to go beyond all reason that this compulsory penalty should be inflicted, and to leave to the chance of the magistrate making a report, and to the chance of the Minister for Home Affairs having sufficient information before him, to say that this is a case in which the prerogative of mercy should be exercised. All that, I say, seems to me to be going beyond all reason.

Mr. O'HIGGINS

I will undertake to consider very carefully between now and the next stage of the Bill Deputy FitzGibbon's suggestion to make a discrimination between the last five and the first seven of these offences in the first part of the Schedule. The one that I would be most doubtful about is that dealing with illicit spirits. I think if we agree to treat that penalty as the maximum for that offence that we would also have to consider it advisable to insert a minimum penalty. As I say it is not so much the guilt of the indidual here that has been the decisive factor as the absolute necessity of getting rid, once and for all, of these offences. I would not say there is one of them more than another menacing the life and prosperity of the country. If the country is to live, flourish and regain its prestige among the nations it is necessary that each one of the 12 offences set out there be stamped out.

I am not enough of a lawyer to tell off-hand whether the starting words in No. 10 in Part 2 of the Schedule mean a certain thing or mean some other thing, but I have been thinking of somewhat similar cases to those which Deputy FitzGibbon mentioned when he spoke last. While it was a hypothetical case it was suggested to me by something the Minister said earlier and it seems to me a great hardship. I refer to the case, for instance, of young people, boys or girls requested by parents or someone else to procure from some house illicitly distilled spirits. There will be means and measures taken by traffickers in illicitly distilled spirits to evade the provisions of any Act and the thing may be christened with some other name than that given to it in the country. It is possible, I think, for messengers quite innocently to carry such spirits. I should like to know whether in the opinion of the Minister a case of that kind would be covered by the words "would if in possession or control of any such things."

Mr. O'HIGGINS

I think that guilty knowledge is assumed. There can be no conveyance without such guilty knowledge.

Yes, that would go a considerable distance. It seems to me the case has been completely made out for a change. There is lack of proportion in the offences. I am sorry Deputy FitzGibbon is not here now. I intended to ask him, through you, Sir, to answer a question which arose in my mind when the Minister for Agriculture was speaking. It seemed to me he laid down a rather peculiar principle of jurisprudence. Deputy Johnson referred to it as the flat rate. It seems to me rather like a law of averages. It may be a common thing in law but it seems to me a peculiar and a remarkable thing. May I ask the Minister if we may take it as a rule that previous Statutes imposing penalties for the offences in this Bill will in effect be, if not repealed, in use during the period in which this Bill is in operation?

Mr. O'HIGGINS

During the lifetime of this Bill the provisions of the Bill will supersede the existing law.

Amendment put.
The Dáil divided: Tá, 15; Níl, 38.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.
  • Earnán Altún.
  • Gearóid Mac Giobúin.
  • Liam Thrift.

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.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárhaigh.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hOgáin.
  • Pádraic Ó Máile.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Croistoir Ó Broin.
  • Risteárd Mac Liam.
  • Caomhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Seán Mac Eoin.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
  • Micheál Ó Dubhghaill.
  • Seán Ó Maolruaidh.
Amendment declared lost.

I beg to move to Report Progress.

A similar motion was made at 22 minutes past 12. I shall not take another motion yet.

I beg to move Amendment 36, in Sub-section (2), line 22, after the words "imprisonment with" to insert "or without." The section as it stands at present gives no discretion whatever to the Court. Hard labour is a very severe penalty, and the Court may not wish to impose a penalty on a prisoner who may be in a bad state of health, and there may be other extenuating circumstances. As the clause stands at present they have absolutely no discretion in any case. I think this is a very reasonable amendment, and one which the Minister ought to accept. There are cases such as I say where, owing to bad health or otherwise, it would be grave injustice to inflict hard labour.

Mr. O'HIGGINS

Hard labour, the Deputy says, is a very severe sentence. Now, as far as I could ever find out the only difference between a hard labour sentence and any other sentence is that there is a fortnight at the beginning of the hard labour sentence in which the prisoner does not get a mattress. Having got over the fortnight the conditions are very much the same. I would accept the Deputy's amendment with regard to line 25, and in fact I was going to offer in connection with that an additional sentence of a fine or an alternative six months, to make that a permissive thing, so that the Sub-section would read: "that a person shall be sentenced to suffer imprisonment with hard labour for the term of 12 months and in addition may be sentenced to pay a fine of £50 and in default of payment of such fine should suffer imprisonment with or without hard labour a further term of 12 months." I could not accept the Deputy's amendment with regard to the substantial portion of the sentence. That would be the 12 months.

In view of the Minister's assurance that there is no difference except for the first fortnight where the prisoner has not a mattress, will he accept the word "without" instead of "with" in line 22 inasmuch as it would make no practical difference?

Mr. O'HIGGINS

There is this difference really that the hard labour sentence is rather to indicate the turpitude of the particular offences. There is very little practical difference within the prison in the conditions of a man sentenced to hard labour beyond the first fortnight, but the additional description of a sentence as a hard labour sentence indicates that a serious view was taken of the offence by the Court, and that it was the wish of the Court to brand it as a rather disgraceful type of crime.

It seems to me that that would lead one to conclude that it was wise to put in the two possibilities "with or without." Then it will be clear that if hard labour is, in fact, imposed, it will be a clear expression of opinion by the Justice that he has taken a more serious view of the evidence, inasmuch as he had an option and decided to impose the greater penalty. Even though the greater penalty was only nominally greater, it was, at least, a sign of discrimination, whereas when a Justice is bound to impose hard labour, there is no expression of his discrimination as to the enormity of the offence. I suggest that, following the Minister's own contention, it would be wise to accept the amendment, inasmuch as that would allow that discrimination—though a nominal one— to be given expression to by the magistrate in imposing the sentence.

Mr. O'HIGGINS

I would be inclined to accept that amendment. I am satisfied that there is no material difference in the conditions of a prisoner sentenced to hard labour and those of a prisoner not so sentenced, and I have no objection to accepting the amendment. I might as well make the offer I mentioned just now with regard to making the fine portion of the sentence permissive rather than mandatory. The words would then be: "may, in addition, be sentenced to pay a fine." Some discretion can be exercised, then, with regard to the circumstances of the prisoners and so forth.

The amended sub-section would then read, in part, "shall be sentenced to suffer imprisonment, with or without hard labour, for the term of 12 months."

Amendment put, and agreed to.

There is an amendment in line 23 to insert after the word "and" the words "may in addition be sentenced," so that the line would read "labour for the term of 12 months and may, in addition, be sentenced to pay a fine of fifty."

Mr. O'HIGGINS

Yes. As we are at it, we might accept that "with or without" again in line 25.

There is an amendment to line 25 to delete the word "with" and to substitute the word "without." Will that be withdrawn?

No, because the circumstances would be different.

Then we will take this amendment in line 23 to to begin with. Who is moving the amendment in line 23?

Mr. O'HIGGINS

You can take me as moving it.

Amendment to insert in line 23, after the word "and" the words "may in addition be sentenced," put, and agreed to.
Amendment 37.—In sub-section (2), line 25, after word "conviction" to insert the words "the Court may, if it is of opinion that such default is due to contumacy and not to lack of means on the part of the person, further sentence him."

I propose Amendment 37, and I do not think the Minister will have any difficulty in accepting it.

Mr. O'HIGGINS

I wonder if the Deputy has observed that I agreed to make the fine portion of that Sub-section permissive, and the Sub-section would then read "and may in addition be sentenced to pay a fine of £50." That would leave it open to the magistrate to take into consideration the circumstances of a prisoner, which is practically what the Deputy asks in his amendment.

After the explanation of the Minister that he proposes to embody the principle of this amendment in the section, I agree to accept it.

Is Amendment 37 withdrawn?

Amendment withdrawn.
Amendment 38:—"In Sub-section (2), line 25, to delete the word `with' and to substitute therefore the word `without.' "

Mr. O'HIGGINS

I accept this amendment.

Amendment agreed to.
Amendment 39: "In Sub-section (3), line 29, to substitute the word `may' for the word `shall.' "

I have authority from Deputy FitzGibbon to move this amendment on his behalf——

I am not quite clear as to whether the option rejected in Amendment 35 does not operate here.

The option that was rejected in the last sub-section had to do with persons convicted by Courts of Summary Jurisdiction. It was decided by the majority of the Dáil that any such person convicted of offences in Part 2 of the Schedule by a Court of Summary Jurisdiction shall be sentenced to a certain term of imprisonment. Sub-section 3 deals with persons found guilty on indictment, and does not deal with persons found guilty by Courts of Summary Jurisdiction. In any such case the object of the amendment is to leave on option as to the extent of the severity of the sentence. In this case the prisoner will be tried by a jury. It has been pointed out very often that where there is the certainty of a particular sentence juries are all apt to decline to find a verdict in accordance with the evidence, because they know beforehand what the sentence is to be, and that the effect of a mandatory provision of this kind will be to defeat the intentions of the Bill. On that ground alone the amendment ought to be accepted. I think it is common ground amongst criminal lawyers, and I think it is even more generally accepted in this country, that juries, where there is no possibility of a small sentence—where, for instance, in a trial for murder the jury does not want to see the capital penalty inflicted—make up their minds to find the prisoner not guilty. Now, that is likely to be the case in any of those other offences.

There are other reasons which may not appeal so surely to the Minister's mentality but which, I think, are really more potent to the average member of the Dáil. The arguments that have been used in regard to the imposition of sentences without question under Sub-section No. 2 apply equally to this Sub-section No. 3. Every person found guilty on indictment of the various offences which we have been considering shall be sentenced to suffer penal servitude for a term of three years, and to pay a fine of not more than £100 nor less than £50, and if he is not able to pay the money he has to suffer imprisonment for another year, or (b) he may be sentenced to suffer imprisonment with hard labour for a term of not more than two years, nor less than one year. There is, as a matter of fact, more option given in this Sub-section than in the last, but I still consider that the advantages lie in every way with the amendment to substitute the word “may” for “shall” in line 2, Sub-section 3.

Mr. O'HIGGINS

I ask Deputies to remember that in this Sub-section you are dealing with a particular class of case, a case of a man indicted and tried by a jury, a case which had attendant circumstances so grave that the magistrate considered that it was not a fit case for summary trial and sent it forward for indictment. There may be circumstances in connection, for instance, with the first offence mentioned in the Second Part of the Schedule that would render it extremely grave and bring it outside the scope of mere summary trial. I would be inclined to offer, in connection with this Sub-section, much the same as was offered above—namely to make the fine portion of the sentence a permissive one and to strike out the minimum of the fine so that (a) would read somewhat as follows “Shall be sentenced either to suffer penal servitude for a term of three years?”—I cannot find the right words at the moment, but the effect of it would be, in addition to the sentence, “a fine of not more than £100,” leaving out the following words, “and in default of payment of such fine within one month after sentence to suffer penal servitude for a further term not exceeding one year.” Similar changes would occur in “b.” Without going over again the arguments with regard to “may” and “shall,” I do think that there is less ground for objecting to it in this case than in the case of summary jurisdiction. You will have here a man tried before a jury and the offences set out in Part 2 of the Schedule were selected because it is considered that, in their own way they are all equally menacing to the future of the country.

Does the Minister give no weight to the contention that the fact that the punishment is mandatory has an effect upon the jury's consideration of the case?

Mr. O'HIGGINS

I gave to that point a certain amount of consideration. But that point did not cause me to change my view that there ought to be for these offences a mandatory penalty that would be the minimum.

Amendment put.
The Dáil divided: Tá, 13; Níl, 42.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás MacEoin.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.
  • Gearóid Mac Giobúin.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Seán Ó Maolruaidh.
  • Micheál Ó hAonghusa.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Earnán Altún.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hOgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Croistoir Ó Broin.
  • Risteárd Mac Liam.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Aindriú O Láimhín.
  • Seán Mac Eoin.
  • Proinsias Mag Aonghusa.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
  • Micheál Ó Dubhghaill.
Amendment declared lost.

Then Amendment No. 40, which is to insert in Sub-section (3) (a), line 34, after the the word “sentence,” the words “may if the Court is satisfied that such default is due to contumacy and not to lack of means, be further sentenced,” and Amendment 41 to insert in Sub-section (b), (3), after the word “with,” the word “without,” and Amendment 42 in Sub-section (3) (b), line 42 after the word “sentence” to insert the words “may if the Court is satisfied that such default is due to contumacy and not to lack of means be further sentenced,” and Amendment 43 in Sub-section (3) (b), line 43, to delete the word “with” and to substitute therefore the word “without,” are similar to what we have have had before.

Yes; assuming that the Minister's words are embodied as promised.

Yes; they are the same as we had before, and I was going to ask the Minister would he embody the words now or later on.

Mr. O'HIGGINS

What I propose in connection with this Section, if Deputies will observe, is that I am inclined to introduce amendments:

In Section 5, Sub-section (3) (a) to make the fine portion of the sentence permissive; to delete the words “not less than fifty pounds.”

In line 35, to delete the word "of," and to insert "not exceeding," (b) to make the fine portion permissive.

In lines 40 and 41, to delete the words "nor less than fifty pounds."

In line 43, to delete the word "with," and to substitute the word "without," and delete the word "of," and substitute the words "not exceeding."

Would the Minister not accept an amendment which would add in paragraph (b) the words “with or without hard labour”?

Mr. O'HIGGINS

Do you mean in the first paragraph (b)?

Mr. O'HIGGINS

No, I could not accept that because these are particularly grave cases that will be sent on for indictment. They will be tried before a Judge and a jury, and if the jury finds a man guilty of the offences set out in the Schedule then a hard labour sentence is not excessive.

But inasmuch as there is no material difference, except in the fact that it records the sense of discrimination, and the sense that a Judge has of the relative enormity of the crime, and that though there is no real difference the fact that the Judge can say that this deserves hard labour expresses his views of the relative enormity of the offence—as it stands there is no opportunity of that—and inasmuch as it makes no practical difference in the amount of physical suffering only, and the sense of the Judge's opinion as to the extent of the offence, the Minister might, I suggest, accept that amendment.

Mr. O'HIGGINS

I am sorry, but I could not accept that amendment. A person found guilty on indictment of this offence ought to receive hard labour.

Then the Minister's own amendments are agreed to.

Amendments agreed to.

I beg to move Amendment 41. In Sub-section (3) (b) after the word “with,” to insert the words “or without.”

Mr. O'HIGGINS

I could not accept that amendment.

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

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Tomás MacEoin.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Séamus Eabhróid.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • 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.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Earnán Altún.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hOgáin.
  • Pádraic Ó Máille.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Croistoir Ó Broin.
  • Risteárd Mac Liam.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Andriú O Láimhín.
  • Seán Mac Eoin.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
  • Micheál Ó Dubhghaill.
Amendment declared lost.

The next amendment which stands in my name is, I think, consequential on Amendment 40, and I desire to withdraw it.

I move: "In Sub-section (3) (b), line 43, to delete the word `with' and to substitute therefore the word `without' ” I think the Minister has said that he was accepting this amendment.

Mr. O'HIGGINS

I accept that.

Amendment agreed.

I want to point out that the next amendment, No. 44, aims at deleting the whole of Sub-section (4). That is to say to delete the provisions which deal with whipping. Subsequent amendments deal with the endeavours to amend the sub-section should it not be deleted. In dealing with the amendments subsequent to Amendment 44 it will not be possible to enter into an argument for deleting the sub-section, and when we come to the question "that the section as amended stand part of the Bill" it will not be possible to enter into arguments for deleting Sub-section (4).

I would like to ask whether you would take a motion to report progress with a view to the exhibition to the Dáil of the various instruments that are possible to be used in this operation?

I want to ask the Dáil then to agree to this amendment which I propose, namely, "To delete Sub-section (4)." I asked the Dáil to pass this amendment upon the view that the punishment of whipping or flogging is degrading and dehumanising to the flogged and the flogger and to the people responsible for the operation of the flogging. It may interest the Dáil to know that this kind of punishment is confined in European countries to England and Turkey. It was in Russia, but I am not sure if it is now, and in the North African countries to Morocco. All other civilised countries in Europe have long since given up this operation of flogging. I am not going to ask for any leniency to the prisoners. I am not going to base my arguments against the institution of this method of punishment out of sympathy with the prisoners. I believe that even they are human and ought to be treated as human, but I am afraid that the history of the last few years has gone far to harden men's hearts and generally to think that it is quite an ennobling aspiration to treat violence with violence and meet torture with torture. I do base the contention that it is unwise to enter into this method of punishment because it is degrading to the persons engaged in the flogging, and it is a reversal of the process of civilisation and christianisation. We have been told on very good authority that it does not matter so much the distance that people progress so long as the direction of their progress is right. I think in this case it is distinctly retrogressive, and the institution of flogging, the reimposition of flogging, in Ireland will mean distinct retrogression, and is not called for by any of the facts that have been adduced in support of the provisions of this Bill. We have been told, of course, that certain classes of offences have, as a matter of fact, been reduced by the imposition of the lash. That is not proved. It is, in fact, denied on good authority—on the authority of the Judges of the British Courts. The classical case that has so often been mentioned—it was mentioned here on the Second Reading—of the decline in garrotting as a consequence of the lash is quite fallacious, although the Encyclopaedia Britannica quotes it, but other encylopaedias point out more correctly that the decline had taken place six months before the Act was passed. The cases made for this system of punishment, is that it is confined to two classes of offences, and it is thought it would be a special deterrent for these two classes of offences. No reason was given why culprits of this kind will be deterred while other culprits, offenders in other directions, will not be deterred by flogging. It is rather strange, while one class of offence is chosen here in this Bill as a fit subject for the reintroduction of this same fiendish system of punishment, in other places and other times quite other classes of offences are quoted as justifying the reintroduction of flogging. There are two judges whose words I would like to quote—representing two different schools of thought, one might say—Mr. Justice Hawkins and Mr. Justice Matthews of the British Courts. Sir Henry Hawkins wrote in his memoirs, "soon after I became a judge I abstained from applying it (the lash) and in all cases where my attention was directed to the special brutality of any particular case I felt that it was preferable to inflicting whipping to add a longer term of imprisonment."

at this stage took the Chair.

Mr. Justice Matthews said, in criticising the proposals of the Grand Jury at the Birmingham Assizes in 1890, to the effect that there should be an extension of flogging for assaults on women and children, "it would be inhuman to add the lash to the sentence of penal servitude and such savage sentences would tend to defeat their object by creating pity for the criminal." I have no doubt that many judges can be quoted on the other side who are in conflict upon this subject, as they are upon many subjects. Some judges are very fond of heavy sentences for certain classes of crime, while others are favourable to light sentences, and they vary exceedingly in respect of the merits or demerits of the lash as a form of punishment. The contention is, however, that flogging is a deterrent, that it will deter in a special manner Irishmen who are guilty, at this stage in history, of the offences of arson, or Irishmen who are guilty, at this stage of history, of robbery under arms.

I want to ask whether it is intended to impose a flogging sentence out of vengeance upon a person guilty of either of these crimes? Is it intended that because the individual has offended violently and grievously against the State, the State must use its strong arm to violently afflict that person's flesh with a lash? Is it vengeance that it is sought to expend upon the prisoner? If that is the case the Dáil will make, then I have no reply to it except to regret that Deputies are so lost to all that has been taught them from their childhood, as to fall back upon the primal instincts. "An eye for an eye and a tooth for a tooth," has a long history as a method of administering justice, but it is not consistent with the Christian Doctrine that Deputies generally have been taught and believe. So I will assume that this punishment is not intended to be imposed as an act of vengeance.

It is presumably claimed that the fear of the lash will deter those who may be tempted to commit those crimes. I think that that is the fairest statement of the case in favour of the imposition of the lash. It is hoped that it will not be necessary to impose it. It is, perhaps, believed that it will not be necessary to inflict whipping penalties, but that the very fear that such a penalty may be inflicted will deter the kind of criminal or potential criminal who might be tempted to commit any of these offences. If that is a fair statement, I want to ask whether it is a right thing to put a person who is not sufficiently brutalised to have no regard for the probable whipping, to put that person, who has at least some remains of a sensitive nature, some remains of a moral sense, to undergo the very degrading punishment that the lash involves? If it is argued that the offender is already brutalised, and that an appeal to that person's social sense is useless, that there is only one way to deter him or to deter others like him, and that is to punish him so viciously, so severely, by physical pain, that the fear will be too great, that he is, in fact, a brute, that he is already dehumanised, and that therefore the only way to treat him is as a brute, as something that is not human—if that be the argument, even then I contend it is better to impose a long period of imprisonment. It is a much more effective safeguard to the public than to allow that brutalised person to be free after a period of imprisonment, and to allow his brutalised nature to have full fling upon the body politic. If, on the other hand, this kind of person is one whose moral sense has not been utterly destroyed, that there is something of humanity left, then I say that the process of whipping is going to lower that man to a level much nearer the brute and to take from him much, if not all, of the human feeling that we are crediting him with.

I do not know whether the Minister has—as I think was his duty before suggesting the imposition of this penalty— made himself acquainted with the procedure connected with whipping under British law in the past. The procedure under this Bill will be that the instrument is to be decided by the Court, and I presume not merely the instrument but the manner of the use of that instrument. No doubt precedent will be quoted, and some reference will be made to the practices in the past, and perhaps the jails which have used the lash for offences against warders—disciplinary offences—may still have within their walls the whips and triangles and the like. I take it that the Minister will have made himself thoroughly acquainted with the procedure. I am going to ask the Dáil to listen to a statement that was made in an earlier discussion upon this question in the British House of Commons. It will be remembered that the Irish representatives of that day did a great deal toward the abolition of the use of the lash in the British Navy and the British Army. It is related in a history of the Irish Parliamentary Party that one terrible day in the House Alexander McDonald, who, by the way, was the first of the Labour members, told the story of his father's cruel shame. He had been a sailor on a ship of war. Some trifling quarrel with a superior had brought him to the courtmartial, and the sentence of 50 lashes of the cat-o'-nine-tails at the hands of the burly boatswain's mates was imposed. Cut to the bone, to the ribs, McDonald's father bore the scars to his dying day.

"I worked as a lad with my father many a day in the pits," McDonald told the House, "and well I remember that no matter what the heat and sweat of work my father always kept wearing a bit of a shirt about his chest and sides. He would not let a fellow workman see the scars of the wounds. I had my personal experience too of those soldier-tragedies. My soldier-nurse, my father's batman, had been a few months before the smartest soldier in the Fighting Fifth. A glass of drink, a word, a blow, a mad struggle with the picket. The court was merciful. The ruined man got `only' 25 lashes! Poor brave McMullan, from the County Down! Shamed to the very death, he drooped and shrank from that awful day. His captain, who liked and respected him, did all he could to hearten and console him. In vain. Before three years were passed from the hour they loosed him from the black triangle, the broken soldier was in his grave."

I do not really want to stress the physical point, but I do want to appeal to the Dáil to realise that there is a moral degradation, a brutalising of the man who has been lashed by another man, and that that brutalising seriously and rapidly tends to make that criminal a much less desirable citizen when he returns to civil life than he was before he went in. You have put him at enmity with the State and with Society, because you have degraded him. You have put him in the position of a slave, of a man whose physical being has been scarified and scored by another and who has been actually put into physical torment at the hands of the State.

I say that the inevitable effect—and it is easily proveable in history—of that kind of torture is to put that man at enmity with the State and with society when he comes out, as you contemplate he will do, because his mind has been brutalised and he has lost real contact with the higher things, by virtue of that real degradation of spirit, and you have actually put him into a wrong relationship if your intention was preservative and beneficent and if you are not, as I hope you are not, out for vengeance. The history of civilisation will surely remind Deputies that the countries and the times in which crime was most prevalent were the countries and the times when flogging was most general. Flogging was general for the minor offences both of men and women, and it was only with the development of a real sense of humanity that crime diminished. When flogging ceased there was a rapid diminution of crime. The history of the British Navy and the British Army in regard to flogging gives ample evidence of that. Everybody who has had experience admits that since the abolition of flogging the general sense of discipline and of good conduct of our crews and of soldiers has been improved to an extraordinary degree, and that since the flogging process was wisely put aside the effects have been immeasurable upon those who were in the habit of committing offences. I would ask the Dáil, and I would appeal to the Minister as seriously and as earnestly as it is possible to do, to withdraw these penalties from this Bill and not let it be said that we are instituting or reviving the system of flogging. I would remind the Dáil that it has been noted with satisfaction that in the past flogging has been very, very lightly indulged in in Ireland and in Scotland, if at all. Now we are asked to institute it in this Bill and to impose it upon certain criminals—to enter, as I think, into a competition with criminality, a competition between the State and the criminal as to who is the most capable of inflicting violence. We have said, and the Minister has said, that recent years have dulled the sense of morality of many people in the country, and that what was looked upon as a terrible thing five years ago is lightly regarded now.

Flogging is merely an institution. The institution of flogging will merely be one other step in the contest of brutality. The criminal is doing an evil thing, a violent thing, and a very disastrous thing to the common well-being, and the State is asked to respond to that by inflicting physical pain with a lash. We are not asked to adopt other methods which are known to history of inflicting pain, but we are asked to strip a man and to use upon that man's body the whipcord, a knotted cord or, perhaps, some other instrument of torture in the form of a lash, and to prescribe that as a cure for the offence of arson. I think it will not be a cure. The utmost that is to be hoped is, if this Bill becomes law with this flogging clause, that there will be no offences of arson, and it may be claimed to the credit of the Bill, if that is the desirable story that can be told at the end of six months. But we will have had placed upon the Statute Book this punishment of flogging, and that in itself will be something to be sorry for in the future. I hope it will be possible for the Minister to say that he is willing to wait at least until he sees that there is an actual increase or a great increase in these two offences and that there is no way of putting them down without corporal punishment. If he comes to the conclusion, after trying other methods, that there is no way of putting them down without threatening corporal punishment, then let him come again to the Dáil and ask for permission to add this penalty to the other penalties; but I would earnestly ask that, until other methods have been tried, and until an extension in the number and ferocity of these offences is revived and continued, that we should not be asked to accept Section 5 in this Bill.

Mr. O'HIGGINS

Deputy Johnson has put calmly and rationally one aspect of this question. I wish I could feel that I could put nearly as well the contrary case. This Bill has been nicknamed. The official title has been ignored and it has become known as the Flogging Bill. I think that people would have been wiser to have adhered to the original title, because it is certainly in that spirit of protecting the clean decent people of this country that the Bill was conceived, and it was above and beyond all for the public safety that it was framed. Within the last year Ministers, Deputies, Senators and representative people have had to be guarded, and to be specially guarded. None of them, I take it, liked that, but it was considered necessary. I ask Deputies to remember that the ordinary man and woman in this country have no guard, if the law and the sanctions of the law are not a sufficient protection for them. Time was in this country when a man could leave his door on the latch during the day or the night. That day has passed, and within recent months, within the last eight or ten months, all sense of appreciation of the sanctity of the home, all restraints of human respect, restraints of respect for the moral law, restraints of respect for the law of man, have gone whistling down the wind, because the worst instincts of man have been summoned up, deliberately summoned up in this country, because that criminality which is latent in man everywhere, which is part of his baser nature, has been called up here. The poet Virgil makes one of his characters say "If Heaven denies me, then I'll call on hell." That seems to be very much the stand taken up a year ago by certain people here who professed to be standing for the higher political ideals, who professed to be themselves high-souled patriotic men with no thought of self, ready to sacrifice themselves and all they hold dear on the altar of their country's good. But they said "If heaven fails me I will call on hell; if I fail to get a response from the people of this country to the intrinsic nobility of my cause, then I will turn deliberately and call forth in this country the worst instincts of man; I will play deliberately to their basest passions, and I will tell them the country is theirs for the taking; I will ask them to go out with a gun to rob their neighbours; I will offer them land for nothing; I will tell them they will never have to pay any debts, rent, rates or taxes, and that the millennium is coming for the man with the gun." It was a pleasant call, and it tickled many ears, and met with a surprisingly general response. Men who had never felt themselves called upon to face the British administration, who had never felt themselves called upon to make any particular sacrifice to achieve the object of getting the British out of Ireland, when the British were got out of Ireland turned on the first native administration here with a ferocity and wantonness that was surprising, and the country has had its year of hell in consequence, the hell of what, for want of a better name, we call civil war. It was not civil war, because there was only the irreducible minimum of fighting. For the most part, when the troops came within range, it was easy talk to the men who professed to die rather than to go into the British Empire and all that kind of talk. They conducted a very wanton campaign against the unarmed citizens of the country, and against the economic life of the country. They wrecked and burned and robbed from end to end of Ireland in the name of Irish freedom, and in the name of a political ideal. Irish freedom! Two things stood out, and these were these two offences that have been singled out in this Bill, the crime of arson and the crime of robbery, the robbery of the unarmed man by the man with the gun. The cry was "What is yours is mine, because I have a gun and you have not; your savings, the fruits of your thrift or enterprise, must be handed over to me by virtue of my gun."

Arson is an offence at which the human mind stands appalled, and in men's minds, back to the earliest days, the home and all it stood for, the household goods, have been cherished things, things ranking amongst the most sacred in life. I feel that if the seeds that have been sown in the last year are to perish and die that we must take steps to strip the thin little rag of idealism from these two crimes, the thin little vestige or scrap of that that they may have, because people professing idealism urged their followers to resort to such methods. Deputy Johnson says that this penalty is degrading. It may be necessary to show how degrading these two offences are to attach this penalty, this humiliating penalty. It may be necessary to mark our horror of these two offences and to mark the strength of our convictions that either they or the nation must perish, to attach very signal and very severe penalties to them. I think it is so necessary. I think that the ordinary penalty of imprisonment has its edge blunted for the people who resort to these two crimes, and if I believed that by any other means than the means proposed in this Bill these offences could be checked and stamped out I would not have inserted this penalty of flogging. But I do not believe that you will adequately grapple with and stamp out these offences by imprisonment. This has been called a reversal of progress. Deputy Johnson used another word which I marked. He called it a reversal of Christianisation.

Now, in all reverence let me say that the Lord Himself in righteous anger scoured with a whip of cords the people whom He found desecrating the holy places. The people who have been violating Irish homes in the name of Irish liberty, who have been robbing Irish citizens by virtue of their guns, will not stand checked by the normal sanctions of the law and they will not stand in fear of imprisonment. I say that believing it to be absolutely true, and I say that if any member of the Executive Council believed that imprisonment would be a sufficient deterrent we would not resort to any other method. The situation in the country is known to every Deputy and scarcely needs to be stressed. You have this combination: that you have summoned up here the worst instincts of man, and you have together with that the lethal weapons secreted from one end of Ireland to the other. These two factors will fuse and will produce both of these crimes. The criminal instinct will find the lethal weapon, and people will try to live by their guns in the future as they have lived for the last year. They have got out of the way of work, and out of the wholesome mentality that work develops and preserves in man, and have got into the way of living by crime. Men go on from year to year, very often living humdrum, routine and moderately respectable kind of lives. Some day the bond snaps. There are many bonds, moral bonds, and bonds that could not exactly be described as belonging to the supernatural sphere, bonds of human respect and also the bond of ordinary decency, the kind of decency that a pagan might have. These bonds, I say, go and the man stands a predatory savage prepared to prey on his fellow-man for his living.

That is the kind of problem we have to face here in this insula sanctorum et doctorum. I do not say for a moment that such problems would not arise to the same extent, or to a greater extent, in other countries. They could. I never believed in the theory of the double dose of original sin for Irishmen. I think that probably in other countries similarly situated, much the same might have happened as has happened here. I would be even prepared to concede that much worse things might have happened than have happened here. But we are dealing with a situation that has developed here, and I tell Deputies, solemnly speaking with a more intimate knowledge than most Deputies could have, speaking with a knowledge of police reports from the various counties and statistics in my mind which I do not propose to state to the Dáil, for the obvious reason that they would be distorted and used by political enemies to the discredit of the country, but speaking with these things well in my mind, I say that if these two offences are to be stamped our sufficiently quickly you must have resort to very special and very stringent methods, and the credit of the country demands that they be stamped out in the shortest possible space of time. When I say the credit of the country, I say it in a twofold sense. The financial credit of the country demands that these crimes be ended at once, and the good name and prestige of the country demand that they be ended. I can almost hear Deputy Johnson making a mental comment that the country's prestige will not be improved by resort to the penalties mentioned here in Sub-section (4), and that whatever we gained by checking or diminishing those crimes, we will lose by the fact that we resorted to those penalties. I know that that is his outlook. I have appreciated it from the start in connection with this Bill—that he thinks and he feels that we are wrong, and he believes that he is right. I do not think, however, that it will be held to the discredit of this Government either here or elsewhere that it placed the protection of the decencies of life, the preservation of the decencies of life, and the protection of the plain decent citizens of the country beyond and above the sensibilities of the robber and the man who resorted to arson. It is the duty of a Government to govern. It is the duty of a Government to protect, to give the utmost possible protection to, citizens. The citizens of this country have a right not to be robbed, not to have their houses and property burned, and they have a right to demand from their Executive that ample measures be taken to check those offences. They must not be left at the mercy of the criminal who has lost all sense of right and wrong because he was taught crime as a means of forwarding a political ideal, because crime was introduced to him wrapt round with the trappings of idealism. The responsibility for that lies on the people who resorted to it, but we must deal with the consequences. We must make it very clear to everyone here that the man who robs and the man who burns is not a hero, but a most cowardly coward, that he is not an idealist yielding to an amiable eccentricity, but that he is the lowest form of criminal. On the Second Reading of this Bill a metaphor was used which I did not like. I did not think that it was a good metaphor, but it was said that every sore back in the country would be a monument of our inability to govern. If the sore backs are to be monuments let us inquire closely what they will be monuments of. I differ from the Deputy. I think they will be thought to be monuments to the fact that we appreciate the necessity of ending these two crimes in the shortest possible space of time, monuments to our determination to end them even at the cost of the finer feelings of the robber and the burner, even, mayhap, at the sacrifice of some finer feelings of our own. You see we have had to outrage in the execution of our responsibility certain of our feelings. Deputies know that.

They know we have had to arrest and imprison and even execute people who were our friends and who were our comrades, and Deputies do know, even though at times they talk as if they did not, that that was not a pleasant task for us. Deputies do know that that was undertaken and carried through by us only because we were supported by the feeling that these things were necessary in the proper discharge of our stewardship to the people of Ireland. Deputies get worked up occasionally and they get up and talk as if they believed that members of the Executive Council, or members of the Army Council were blood-thirsty ruffians or flinty-hearted persons devoid of all human feelings. I know that they do not believe that. I know that in calmer moments it has been necessary for us, or we, at least, have considered it necessary to sink and control the natural promptings of our hearts because we consider that those conflict with the due discharge of our responsibilities. It is so in this Bill and so in fact throughout the Bill, and so in truth with regard to this Section. No one likes to have to resort to the penalty of flogging, and, going a step further, no one likes to have it known elsewhere that it was necessary to have to resort to that penalty in this country in order to check certain crimes. We would much sooner it was not necessary, but we do consider it necessary and we do consider it is our duty to tell the Dáil that we believe that the combination of hidden arms and a rather general tendency to crime and to give free play to the lowest instincts will create here these two offences on a scale which the normal sanction of the law would not be sufficient to check. We come here and say that there has been a retrogression from the standards to which civilisation and society had attained and to meet that retrogression you must take a step back also in your penalty and go back to those penalties of corporal punishment which every man would be glad to have laid aside if certain circumstances permitted that they could be laid aside. But it is surely my duty, and it is surely our duty, if we considered that those penalties, and those penalties only, will check these offences, to come here and say that in an open, responsible, straight-forward spirit. Deputies must choose deliberately. I say if you rely on the sanction of mere imprisonment to deal with these two offences you will not stamp them out as quickly as they ought to be if this country is to live and flourish and go forward in peace, progress and reconstruction. Deputies must choose whether they prefer to respect the finer feelings of the criminal and to have robbery and arson rife in this country from end to end, or whether they will figuratively grit their teeth and go through with this thing for six months in the hope that at the end of six months they will have shown adequately that neither of these two crimes is heroic, that they are in fact ignominious offences demanding an ignominious penalty.

The facts as to the late prevalence of arson and robbery under arms, and the likelihood that there will be, perhaps, on an extensive enough scale, a repetition of these offences are all quite admitted, but I respectfully suggest that after he had retold for us the story of all that, the Minister very largely begged the question before us. He gives it as his considered opinion, and the considered opinion of the Executive Council, that the employment of this particular form of punishment is going to achieve the end which he wants to achieve, namely, the suppression of these two offences and the putting of criminals of this kind into a class apart from all other criminals. Now, he has brought no evidence and nothing to show that that opinion of his and of the Executive Council is well founded. Such opinion, at least, the majority of opinion that has been expressed in other countries as to the efficacy of flogging or whipping, or indeed of any form of torture, has been dead against torture because it is torture, and it is just because it is torture that it is objectionable. It is not out of any great consideration for the finer feelings of criminals that one opposes a measure like this. It is out of consideration for the finer feelings of human beings of the whole nation and of civilised beings in general The Minister made a false analogy when he referred, as a kind of parallel, to the driving of the money-changers out of the Temple, but will the Minister say that that particular kind of whipping is the whipping that is going to be inflicted under this Bill? No, it is not. The whipping provisions under this Bill are taken from the ordinary British whipping provisions which are torture. Now, the light use of ordinary whips on animals is not, as far as I know, an offence in law, but the searing of the flesh of animals and the breaking of the skins of animals by excessive beating, is a crime known to the law, and is a punishable offence under the law. There is no analogy at all in what the Minister has said. It is a good many years since one of the most distinguished of Irishmen, a man who would have had no hesitation in punishing in the most drastic way, consonant with humanity and morality, Parnell, said that "flogging is an evil and has been used at all times by tyrants for purposes of their own, and so long as it remains it will continue to be used in an unlawful and cruel manner." Again he denied that even people guilty of the crime of garroting ought to be flogged, for it was a disgusting and inhuman punishment. I agree. There is one, and only one, argument that any Government can produce to justify flogging. It cannot produce the argument that it has been effective, for it has not been effective. At different places and at different times it has been adopted to deal with particular crimes, but the advocates of its use for that class of criminals have always said that it is not necessary to use it for other crimes, but that it is necessary for this particular one or two crimes. It is the same here. The only argument that can be used in justification is that it is one of the instruments of torture necessary to impress the community with the power of the State. I submit that in this case, as in most cases, the use of torture shows and reveals in a Government the very essence of despotism. It is no argument in reply to say that the majority either of this Dáil or the majority of this people approve of a particular measure. That makes it no less despotism, because no Legislature and no Government is invested, or can be invested, with such power and such authority that every act it performs or gives sanction to is therefore a rightful act. Now, the Minister speaks of the decencies of life. We are all agreed with him on that, but we think that the adoption of this measure is a violation of the decencies of life. He thinks—I believe he is mistaken— that these scourged backs will be a monument to the ability and sense of duty of the Government. Well, if it is mere monuments like that that he wants he is welcome to them, but if it is monuments he wants he can have even more effective monuments to show to the people. He might, for instance, brand people convicted of arson with the letter A on their foreheads. That kind of thing has been done on exactly the same argument as the Minister brings forward here. He could brand the robber with the letter R on his forehead, so that everybody might see it.

The Deputy has exceeded the ten minutes allowed.

I regret having done so.

In support of the amendment to delete Sub-section (4) I wish to say that I think this amendment should get the sympathy of every member of the Dáil. When we take into account the class of prisoners who will be entitled according to this Bill to receive this punishment I am sure that neither Deputy Johnson nor any Deputy on these benches will have any sympathy. We have no sympathy, for instance, with the man who goes out for the sole purpose of robbing his neighbour by the aid of a revolver or the man who may go out with the full intention in his mind to set fire to his neighbour's dwelling or the man who may lie in wait watching his opportunity to take the life of his fellow-citizen. A certain class of prisoner, however, under this Bill when it becomes law can be sentenced by the Judge to the punishment mentioned. Any prisoner for the slightest offence which he may commit against this Act will be or can be sentenced by the Judge to flogging. Now I do not think that at our time of life in this twentieth century we are going to go back to the year '33. when flogging was first introduced. Surely we are advancing, but if we happen to be more or less of a "Paddy-go-easy" style of people whose desires are to follow in the footsteps of our great-grand or trebly-grand ancestors, and if the promoter of this Bill belongs to that class, I am sure the Saorstát is not going to advance. I think in fact we are taking three steps backwards. Now this Section specifies that in the case of a boy under 16 years of age the Judge can order a whipping to the extent of 25 strokes, but in the case of a person over 16 years of age the number of strokes specified shall be 50. I am sure that the Minister really means that the Judge shall specify 50 strokes.

The Bill says (b) in the case of any other person the number of strokes at such whipping shall not exceed 50.

I was taking it for granted that the Justices appointed under the Minister for Home Affairs would inflict the heaviest penalty.

The Deputy is not entitled to make such an assumption as that.

It lies with the Judge to specify the number of strokes. In the case of persons whose age does not exceed 16 the number of strokes does not exceed twenty-five, and in the case of other persons the number of strokes specified is between twenty-five and fifty. It is for the Judge to specify the number of strokes between twenty-five and fifty. We realise to the fullest extent the punishment that is to be inflicted under this Bill and the powers which you give to the Judge. To my mind flogging is the most horrible act that can be introduced for any civilised people. If you take a man out to the flog him you have to strip him. You are not going to flog him with a top coat on, especially if it is made of a shoddy material that is being worn by some portions of the Army at the present time. Having stripped a man you tie him to a post, then you get one or two strong men whom may be chosen by the Judge to use an instrument specified by the Judge. It does not say whether it is to be a cat-o'-nine-tails or a birch, and you cut the flesh off the man's bones, he is, of course, helpless, being tied to a stake. I notice that the Minister for Defence shakes his head, which leads me to think that he believes the flesh shall not be cut off a man's bones, but how can you flog a man and give him fifty strokes without cutting him? I can assure this Dáil that I want to see criminals who stoop so low as to rob for their own personal ends, or who burn the homes of their neighbours, punished. But there are other means of punishment than flogging. Flogging is too old a punishment to be adopted by a nation in its infancy as we are.

The Deputy has now exceeded his ten minutes.

It is, of course, pleasant for certain Deputies here to assume the role of defenders and champions of human feelings and by their criticism directed against this Bill, especially against this particular provision, to convey the idea that members of the Government are lost to a proper sense of humanity and that they are not able to appreciate, as some Deputies can appreciate, all that has been said with regard to this aspect. I think there are two aspects put before us of this punishment of flogging. One aspect is that the punishment itself is degrading to those who receive it, and the other is that it is revolting to the minds of other persons. Now I do not know whether it is necessary for the members of the Government to proclaim that they are made of much the same clay as other people. They have probably quite as much of the average tenderness of feeling about matters of this kind as other people. It is really not a question of susceptibilities or sensibilities. If people allow themselves to be ruled by appeals of this kind it is not only in the treatment of prisoners and of the baser sort of criminals but in the treatment of innocent persons that they would wish to interfere and to impose limits. The surgeon daily in his ordinary operations has to do things which would be revolting to many hundreds and thousands of people if they were spectators of these things. I remember it was put forward at a previous stage that if this punishment were a justifiable one to be inflicted in prisons for these crimes why-then should it not be performed in public? That was the test—the ordinary operations of the surgeon. We were asked to consent to have this flogging in public. If the surgeon were asked to perform his operations in public they would shock the natural feeling, not only of some persons but a very large number of persons, and very probably the majority of persons. The case that we have to deal with is far more grave than the relief of the ailments of individuals.

at this stage took the Chair.

It is a disease, but a disease of the body politic, a disease of the community, and, just as we are supposed to be unfeeling and inhuman in these matters, so it has been suggested that in bringing forward this Bill we have been acting at one time in opposition to the spirit of the Constitution which we have adopted here and at another time in a manner dangerous to the liberty of private citizens. The fact is, and I think the vast majority of the public at all events already recognise it, that the object of this Bill and the object of the severities proposed under it is to make the Constitution possible, to prevent it from being rendered impossible and to bring it into existence. At present it exists as an embryo, and the operation of bringing an embryo into existence and into full life is very often attended with pain and very often attended with circumstances which make people probably regard it as painful to their finer nature. It is the same with regard to the liberty of the individual. It is to make liberty possible for the individual in this country that this measure is proposed, because it is not only for the particular individuals who are threatened by arson or threatened by robbery, but because if these threats are in any measure successful they strike at the liberty of every person in the country without exception. The measures proposed here in this Bill are designed to give effect to the Constitution and to give it reality, to allow the Constitution to get life and breath and to give liberty to every individual. We have had numerous and oft-repeated statements in regard to this particular punishment of flogging. We have been challenged to point out whether we have reasonable ground for supposing that this punishment will act as a deterrent. We have reasonable ground. One of the Deputies who spoke instanced the action of Parnell. Parnell, we know, abolished flogging as a disciplinary measure in the British Army. As we know, Parnell was instrumental in procuring its abolition, I do not remember—I presume the Deputy has taken the trouble to verify what he has said—that Parnell objected also to flogging as a punishment for the crime of garrotting, but I do remember that that punishment was effective in stamping out the crime of garrotting; that, I think, is a fact well known to a very large number of the public.

It is a fiction.

It may be denied, I do not know how much the denial amounts to. It was also put forward that the object of this penalty was to create terror in order to give the notion of the power of the State.

I must remind the Minister for Education that his ten minutes has expired.

I suppose it is in order for me to continue my speech, and that it will be in order for the Minister who has just sat down to resume his speech after I finish. The Minister for Education, I think, is in error like a good many other people, in pleading that flogging had the effect of putting down the prevalence or checking the prevalence of garrotting, particularly in London. It is a fiction that has existed for a good many years and even well recognised authorities have given some colour to it. But it does not happen so far as my information goes—my information may be at fault—to correspond with the fact, because the garrotting outbreak in England was effectively suppressed before certain Acts, particularly the Act of 1863, reintroduced the punishment of flogging unless I am very much mistaken, and one of the authorities testifying to the suppression of a garrotting before the 1863 Act was Mr. H.H. Asquith. I am handed here extracts from a speech delivered by two British Home Secretaries in the House of Commons in March, 1900. Mr. Asquith was Home Secretary from 1892 to 1895, and in 1900 he made this statement:—

"As to garrotting, that crime had been brought to an end as a serious danger before the House, in a fit of panic, due to one of its own members having been garrotted, resorted to legislation. Garrotting was put down without resort to the lash, by a fearless but, I agree, a severe administration of the criminal law."

On the other side of the House there was Lord Ridley, who had been Home Secretary from 1895 to 1900, and he said:—"Reference had been made to the Garrotting Act. He agreed with the history of that Act, at all events so far as London was concerned, given by the Right Hon. Gentleman, Mr. Asquith, and that the rapid and severe action which put down garrotting took place before the passing of the Act of 1863."

As a matter of fact, many of the legal text books and other books of information have put down the particular Act referred to as 1861; it was 1863 as a matter of fact, but I repeat that there is no evidence as to the efficacy of flogging for any of the crimes for which at various stages it has been specifically prescribed, and that most of the evidence is against it as an efficacious method. Reference has been made to what is in fact the Mosaic Law, but we should have kept at this time of day, far away from the Mosaic Law, even though we had as bad a period in the last twelve months as any period in history. One of the great dangers to the State, and to the community, in the introduction of flogging, is that the idea of flogging gets hold of men's minds and is extended from one offence to another, and to many offences. To-day it is advocated for one thing, to-morrow it is advocated for another; its failure in each does not prevent it from being defended, and it is always prescribed for something else when it has failed previously. There were many people who adopted the most severe provisions of the Mosaic Law. English people in America have adopted many of them at various stages in their history, and they have adopted whipping and have extended whipping to many things that no one here at the moment would suggest they should be extended to. They have even gone so far as to prescribe whipping for a breach of the Sabbath, for abusive language, for defamation of character, and so on. Sometime or other it will be quite within the competence of the Government here in Ireland, if we allow these things to be done now, to say that some particular offence, which at the time seemed not particularly odious, should be punished under this measure. I repeat that flogging is torture, and nothing but torture, and it is because it is torture that I object most strongly to it. It would be no use in any sense of the word if it was not for the infliction of physical suffering and the infliction of actual physical suffering must be torture. Now, we know the effect that that will have in two or three directions in Ireland and elsewhere. We remember the effects that were produced by torture on Tom Hales and we know the effect it had upon his comrades. We do not want anything of that kind in Ireland. You have got, or you ought to have got, numerous measures that you could use. From the time flogging is adopted, and from the time it will be adopted, its adoption will be advocated on the very argument and on the very ground that the Ministry here and now are advocating it.

The Deputy has undertaken to correct me. He spoke about garrotting having been suppressed before the Act of 1863, and brought forward evidence of two members of the British Legislature on that point. Am I to understand that the Deputy supposes there was no garrotting, no outbreak of garrotting in Britain after that?

There was an outbreak of garrotting after that time. It was not in London; it was in Liverpool long after that time, and at a time sufficiently recent for myself to remember it being a matter of conversation, and if I am not mistaken, it certainly was publicly believed at the time—I am not furnished with books of reference on these points—that outbreak of garrotting in Liverpool was put down by flogging.

Now, if corporal punishment inflicting pain be torture, I wonder how many Deputies here have grown up without coming through some experience of it. Of course it belongs to the old world, and it is fashionable for some people to say, nowadays, we have hospitals for dogs and people dying without hospitals. It is fashionable for a certain number of sentimentalists, nowadays, to say that corporal punishment ought to be abolished altogether. If it were in order I would like very much to call for a show of hands here among Deputies to testify, each for himself, who has not been corporally punished over and over again.

On a point of information, may I ask Deputy McNeill if the whipping provided for in the Bill corresponds any way closely to the corporal punishment administered by a school teacher or parent?

I understand the Deputy to say flogging is essentially a torture. If it is so, then the flogging of smalls boys is essentially torture.

As prescribed in the Bill.

I have corrected the point with regard to garrotting being suppressed before 1863. It broke out afterwards. My information is that when it broke out afterwards it was corrected by the punishment of flogging.

Not so repeatedly.

As to the argument that this punishment, if adopted, could be extended to other things and, therefore, should not be resorted to, if we adopt that argument we will stop anything. We will fall back on the Tolstoi system of punishing nobody. That is not our system. What we are proposing here is that for crimes of a certain origin, which have become a mental disease, a very severe and marked deterrent shall be adopted, not to magnify the notion at all of the power of the State. I am certainly not out to magnify the power of the State, but to magnify the rights of the individual Irishman and Irishwoman.

Deputy MacNeill has referred to the recrudescence of the flogging campaign following upon the suppressing of garrotting in London. I think it is undoubtedly true, and I am sure the statements by two Home Secretaries quoted by Deputy O'Shannon will be accepted as a fairly good evidence that at any rate London garrotting was receding if it had not been suppressed before the Garrotting Act was passed. Nobody claims, I think, that robbery with violence has ever been put down by any form of punishment. Nobody claims or has claimed here that arson will be put down by flogging. The utmost that has been claimed by the flagellants is that the epidemic of garrotting or the epidemic of robbery by violence in Liverpool which was followed by the campaign of Mr. Justice Day was put down by flogging. That is the case made by the Minister for Education. He says this is a disease which has broken out and the argument runs that in the same way as the hooligan epidemic in Liverpool which was treated by Mr. Justice Day by the lash was thereby cured, so will the fire and robbery epidemic that has been existing in Ireland recently be put down by this remedy of flogging. It is a very difficult question to decide whether the hooliganism which was attacked by Mr. Justice Day in Liverpool by the lash was as a matter of fact suppressed by the use of the lash. Mr. Justice Hopwood, the Recorder at the same time as Mr. Justice Day was carrying out his campaign, had quite the opposite view. He was the Recorder of Liverpool and took a different view of the effect of the lash. So different was it that his contention was that following the flogging the campaign actually extended for a longer period than normal outbreaks of that kind had been extended by the very use of the lash. People came back and back again for the same offence having had the lash. It is recorded that people asked for the lash rather than be sentenced to long terms of imprisonment. The evidence is not so convincing as the Minister for Education would think. On the contrary it is very unconvincing, and different judges have different notions of the effect of the lash upon crime of this kind. If there is any doubt about the effect in curing a particular form of disease—the Minister has spoken of it as a disease and I agree with that definition— you are not going to check the disease of the mind by application of the lash to the body. I submit that there we have no evidence whatever of the increasing prevalence of those offences, and therefore there is no need adduced which at all convinces one of the necessity of pushing forward extraordinary methods of punishment. The whole case that is made in favour of this is that there may be thrown out into the country men who have been mentally affected, and who will resort to this method of crime. Can we not wait until we see whether that prophecy shows any signs of coming true? It is put forward here as a measure to stop this epidemic of crime from developing, but undoubtedly the crime, though it has been rife, has receded. The President and Ministers tell us that is so. Then, why should we introduce this extraordinary method of treating a disease which is already in the process of being cured? The Minister says you must get your medicine ready for the possibilities of a new outbreak. But I say if that medicine is only a doubtful cure, if it has been ineffective in similar classes of crime, then we should hesitate before prescribing that medicine for a disease already receding. Let us make more inquiry. Let us prepare the Civil Code after inquiry. It is clear that Ministers have not thoroughly examined evidence for and against the revival of this flogging system of punishment. The instrument has not yet been decided upon. It has not been decided whether it is to be a lash which will cut with one stroke, that will wound or hack, or that will only slightly mark the back. No decision has been come to. The Minister has not examined yet into the merits or demerits of this instrument for the purpose of curing this disease. Is it intended to be a whip with thongs? It is not stated; it is left to the discretion of the Judge. Is it intended that it shall be a whip that will take out the flesh, such as the Russian knout? It is not stated. I submit there is not any case being made for urgency for this. The disease is receding. We have no assurance, no reason to believe, that it will necessarily become rife within the next few weeks. Let us wait, and in the meantime make a thorough inquiry as to whether the application of this kind of punishment is likely to be effective, judging by precedent. I am assuming that you are willing, for the sake of immediate gain, to do what I believe to be an irrevocable wrong. We do not believe, as the Minister thought, that he and his colleagues are any less sensitive to human pain and suffering, or have any less humanitarian feeling. It is, in my belief, the fact that Ministers have allowed themselves to suppress those feelings at the call of the intellect. They believe it is desirable to suppress those feelings, to go ahead with the work of punishment and repression, and not to allow their humanitarian feelings to have any play upon what they conceive to be their duty as judged merely by reason. I suggest it is not good politics, let alone sociology or morality, utterly to suppress human feeling.

There seems to be a great deal of doubt as to the effectiveness of this measure. One opponent suggests that it is abhorrent. Another suggests that the prisoners like it. Reference was made to garrotting. We need not go back to the Garrotting Act to see the effectiveness of this measure. It still exists in the Prison Code for assaulting warders. I have seen prisoners who assaulted warders who after receiving punishment were so cowed they would not answer me when I spoke to them. Its effectiveness is beyond doubt in the prisoner of to-day, and when a man suggests that a prisoner asks for it in preference to imprisonment I do not believe it.

That is corporal punishment. The Minister for Education spoke of flogging.

There is a great deal of sympathy and sentiment expressed by gentlemen on the other side for people who had very little sympathy with others themselves. They started out to show humanity that no matter what laws have been passed or what things have been done, all must be tempered with a superabundance of humanitarian motives. We were told here when we had to take very strong and very severe measures against the Irregulars in the early days that we were going to breed more Irregularism. It has not bred, it has not spread Irregularism. We are dealing with what one might call dying phases of Irregularism, fading to this extent that people are hesitating as to whether they will operate their terror still further by robberies or by burnings or by any other destructive experiments upon a people whose hearts they believe are filled with human kindness, thinking it was all over and that it is moral suasion that has won and not the strong arm of the State asserting authority in spite of their damned stubbornness. We have broken their stubbornness by strength. The best man amongst them admitted first that he never thought they would be executed, and secondly, that he never thought they would be sentenced to death. But he had to deal not with this friends, but with men who realised they had a great deal of responsibility and knew there were times when one must regulate his sentiment and sympathy with his duty. Even if the case were as stated that this particular form of punishment did not stop garrotting there is no use in telling me it will not stop it here. I am perfectly satisfied that it will. I have experience where the sternest and strictest measures brought home to people what we might call the sanity of the situation without eradicating the disease. I have seen people ruined with this particular form of disease. I have known them to have been in such a condition that it was as regular to them as taking their meals that they had to participate in something against society. There are several young men at present in jail. Personally, I do not think they will start this game of burning or robbery under arms. I do think if there is one thing more than another that will lead them to it it is the fact that we are getting more sentimental, that we are getting more sympathy with those poor sufferers who have led themselves into this. In my experience I have had to examine various orders of society. My experience invariably has been that the robber or person out to destroy is an absolute coward. When he came up against his own strength he quailed before it. When he came up against authority that was determined to exercise that authority when that authority was just, he would have had, if he could, his revenge, but he generally realised where the real strength lay, and the real strength in this physiological problem is to be shown in an utter indifference to those people's shrieks. I would like the gentlemen opposite who are as much interested in the stability of the State as we are to realise that those robbers are even more dangerous from the point of view of business and employment than any sort of political disturbance. If they doubt me in that I invite their attention to the balance sheet of the banks.

There is no doubt of that. The only doubt is whether this is efficacious.

Very good. We are on absolutely different lines with regard to that. Particular instances are quoted where Mr. Parnell got credit for abolishing that punishment in the Army. Is that a fair comparison? In one case it was a disciplinary torture that was removed from the Code regulating the British Army or Navy. But in our case what are we dealing with? Is it ordinary crime? is it something that can be explained or excused? It is not, and Deputies know that. The use of the gun has become rather too common, very much too common. I may tell Deputies that at a time when we had very great difficulty in maintaining the struggle against the British this was one of the methods adopted to correct people who committed crimes. I do not know that it was effective. I have no returns to show for it, but I have not heard of a single case of a person who got a corrective of that kind who again came before one of the Courts functioning under the Dáil during the War. I have never heard of a case. I did know of one case of a man who so suffered, and who if he had the opportunity I am perfectly convinced he would not commit the same crime again. Afterwards he called on me. He was a young man who was misled. He was not a coward. He was ordered out of the country, and he came to me to have him allowed back. We feel as much as you do. I will not forget easily the effect of the particular incident described by the Minister for External Affairs. It has been the experience in those cases that a person once corrected in that manner does not commit an offence punishable by the same corrective.

All that the President says may be true but it does not follow from that that this is the only method of correcting a particular kind of disease or removing a particular kind of disorder. I should really like to put the question to the two Ministers who have spoken in connection with a certain prison incident whether their object in making this provision is to prevent offenders who commit one offence from repeating that offence or whether their object is to prevent the prevalence of the disease as a social disease and not merely in an individual? The very fact that so recently as 1916 or 1917 a particular punishment was inflicted as a disciplinary measure in a prison goes to show that despite all that has been inflicted again and again in prisons for attacks on warders, violent and presumably murderous attacks, these attacks occur in those prisons again and again. It may be that a particular prisoner who has been flogged once for making an attack on a warder will not repeat that offence. A good deal depends on the quality of the prisoner just as a good deal depends on the quality and character of the young man whom the President cites as coming to him. I have met prisoners in prisons who suffered disciplinary measures of a much less severe kind for lesser offences and they did not repeat the particular offences. Some time again they might. It is arguing a bit out of the way I think to say that because in certain cases a certain effect was produced that the effect is going to be general. The weight of evidence, as I think we have clearly shown here this morning, is against all that and the very tone of the President's speech shows what I commented on a while ago, that the whole idea behind the thing is terrorism—meeting one ferocious act by an act still more ferocious, so much so that I would be inclined to paraphrase a learned Deputy of the Dáil, who said, in giving his objections to a certain Bill, that the provisions of the Bill were largely an interference with property of a certain kind. This Bill is an interference with persons of a certain kind. That Deputy said he thought that that particular Bill ought to be called a Bill for the outlawry of certain debtors, and the ferocious destruction of the same. This Bill is alternatively popularly titled a Flogging Bill, and might be entitled a Bill for the ferocious punishment of certain offenders.

The Deputy asked me if I believed that any person who had been flogged would not offend again. My answer was given in reply to Deputy Johnson, who stated that there were cases in which people asked for flogging instead of some other punishment. I believe that the very fact that this Bill is passed will limit very much the particular activities that we mean to limit and that it is a deterrent rather than a punishment for particular people.

Amendment put.
The Dáil divided: Tá, 12; Níl, 37.

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

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Seán Ó Maolruaidh.
  • Micheál Ó hAonghusa.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Risteárd Ó Maolchatha.
  • Pilib Mac Cosgair.
  • Micheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Earnán Altún.
  • Liam Thrift.
  • Gearóid Mac Giobúin.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hOgáin.
  • Seosamh Ó Faoileacháin.
  • Seoirse Mac Niocaill.
  • Piaras Béaslaí.
  • Fionán Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Croistoir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Dóláin.
  • Aindriú O Laimhín.
  • Seán Mac Eoin.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
Amendment declared lost.

I beg to move Amendment 45, to delete in Sub-section (4), lines 46 and 47, the words "convicted by a court of summary jurisdiction or."

The effect of the amendment is that the Sub-section shall not apply to cases in which the persons are tried before a court of summary jurisdiction; in other words that the Sub-section will only apply in cases where people are found guilty on indictment, that is where they are tried before a Judge and jury.

Amendment put, and agreed to.