PUBLIC SAFETY (EMERGENCY POWERS) BILL, 1923. - MOTION FOR LATE SITTING.

Mr. O'HIGGINS

It may be necessary to sit after the usual hour for adjourning this evening, for the consideration of this Bill, which is urgent. I beg, therefore, to move:—"That the Dáil sits later than 8.30 p.m. if necessary for the consideration of the Public Safety (Emergency Powers) Bill, 1923."

I beg to second.

Motion put.
The Dáil divided: Tá, 26; Níl, 9.

  • Liam T. Mac Cosgair.
  • Gearóid Ó Suileabháin.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Seán Ó Ruanaidh.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Carthaigh.
  • Sir Seámus Craig.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Seoirse Mac Niocaill.
  • Caoimhghin Ó hUigín.
  • Fionán Ó Loingsigh.
  • Criostóir Ó Broin.
  • Aindriú Ó Laimhín.
  • Eamon Ó Dúgán.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.

Níl

  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Ceallacháin.
  • Domhnail O Muirgheasa.
Motion declared carried.
[FOURTH STAGE CONTINUED.]

I beg to move the following amendment:—

In Section 12 (1), page 8, line 47, to delete the word "shall" and to substitute therefor the words "may at its discretion."

Mr. O'HIGGINS

I regret that I cannot accept the amendment. As I stated in dealing with the previous amendment, the Executive, if it is competent at all to perform the functions entrusted to it by the Dáil, is also competent to form an estimate with regard to the conditions existing in a particular area, and with regard to the possibilities of a fair and just trial of the particular cases in that area. The difficulty in dealing with some of these amendments is that it would be perfectly right and perfectly proper to accept them if we could feel that all citizens are as responsible and as conscientious as the people, say, who move the amendment; but we know they are not, and we know also there is far more physical courage in this country at the moment than there is moral courage and that jurymen, in deciding on particular cases, are subject to local influences, local passions and prejudices of one kind or another that do amount to and constitute an impossibility of securing a fair and impartial hearing of certain cases, at any rate in the areas in which these cases arise.

The Minister realises that this is touching all kinds of cases.

Mr. O'HIGGINS

Yes, I realise it. I am not speaking on this matter without the book. I do know that recently, even within the last few months, cases here and there in particular counties have been considered by juries, and have been decided upon in direct conflict with the evidence tendered to the juries. That is rather a painful admission. It shows that we have yet some way to go before we arrive at proper standards of civic responsibility and proper standards of civic duty, the duty that lies towards the State from the citizens, corresponding to the duty that lies from the State towards the citizens. In the times through which we are passing, this provision in the Bill is absolutely necessary if justice is to be done within our territory. The suggestion in this particular amendment is that the matter be one for the discretion of the Court, that the Attorney-General merely puts forward particular representations, or puts forward a particular case, and that the Court shall discuss and decide that. That is objectionable. From the very nature of his position the Attorney-General is the responsible officer of the State. His cerficate to the effect that a fair trial of the case cannot be held within a particular area ought to be final and ought to be accepted by the Courts. Very often all the reasons which render it difficult or impossible to secure a fair trial within a particular area cannot be fully stated, or are of such a nature that it would not be in the public interest to state them fully. I have a particular case in mind, a case arising in the Midlands that certainly ought not to be tried in the locality in which it arose, and it would be difficult and inadvisable to state here or to state publicly in the Courts all the reason for that. It is not excessive in a Bill of this kind which deals with a special period, and a special emergency, to ask the Dáil to say that when the highest Law Officer of the State submits a certificate to the Courts that a particular case could not be fairly or impartially tried in a particular area that that ought to be final for the Court, and that the Court without any further discussion or deliberation should order a change of venue for that case. In considering these and other powers conferred by the Bill I merely want to repeat and to stress that it depends upon the spirit in which Deputies think that these powers would be wielded and exercised. If Deputies consider that this particular power could be made an instrument of tyranny I say that practically every power conferred by this Bill could be made an instrument of tyranny But if Deputies do sincerely believe that an Executive responsible to them, responsible through them to the people, is of such a kind that it would be certain or likely to use these powers in that way, then there certainly ought to be a change of Executive. You are not dealing now with arbitrary Government imposed upon the people by force from elsewhere. You are dealing with an Executive responsible to the people through their elected representatives, and if we were a body that could not safely be entrusted with this power, or with other powers conferred by this Bill, then we ought not to be in our present position at all and the representatives of the people ought to elect to this position people more worthy. The difficulty I have had in dealing with amendments to this Bill, and in defending the provisions of this Bill, is just that difficulty that I do realise the Bill, in its nakedness, in the letter of its provisions, could be made a vehicle of tyranny, and I have had repeatedly to ask Deputies to remember that its powers had to be exercised by an Executive responsible from day to day to the people's representatives here and if in the interest of the common weal and of the public safety we were thought to be people to whom these powers could not be entrusted then it would be better that there were a change and that people were selected who could be entrusted with drastic and far-reaching powers, in full confidence that they would be used with discretion and used only in the public interest.

Amendment put.
The Dáil divided: Tá, 9; Níl, 33.

  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Seán Ó Laidhin.
  • Cathal Ó Seánáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Uáitéar Mac Cumhaill.
  • Seán Ó Duinnín.
  • Mícheál Ó hAonghusa.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Seán Ó Ruanaidh.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Sir Seámus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Criostoir Ó Broin.
  • Caoimhghin Ó hUigín.
  • 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.
  • Uinseann de Faoite.
  • Mícheál de Staineas.
Amendment declared lost.

I beg to move:—"In Section 13 (b), page 8, line 64 to insert after the word `management' the word `sanitation.' " The object of the amendment is to enable regulations to be made to ensure proper sanitation in prison camps.

Agreed.

I move:—"In Section 13, page 9, line 2, to insert immediately after paragraph (c) the following new paragraph:—

‘(d) Providing for the medical, surgical and nursing care of the persons so detained.'"

That amendment explains itself.

Agreed.

Amendment by

"To add to Section 13, page 9, a sub-section as follows:—

‘Regulations made under this sub-section shall make provision for securing the proper sanitation of every prison, internment camp, or other place in which persons are detained in custody under this Act, and for enabling the persons detained therein to receive adequate medical, surgical and nursing attention and care, whenever needed, and for the inspection of every such prison, internment camp, or other place of detention, and the visiting of any person therein by any member of the Oireachtas.'"

This amendment is affected by the two previous amendments, and the portion of it not provided for in the two amendments is, "To add to Section 13, page 9, a sub-section as follows:—

`Regulations made under this sub-section shall make provision for the inspection of every such prison, internment camp, or other place of detention, and the visiting of any person therein by any member of the Oireachtas.' "

I move the amendment as read out by you.

Mr. O'HIGGINS

Deputy O'Connell's amendment is covered substantially by the official amendments that have been inserted, Numbers 17 and 18. The only portion of it that is not so covered, I think you will agree with me, is the portion providing for visits by members of the Oireachtas—"The visiting of any person therein by any member of the Oireachtas." That is the only portion of Deputy O'Connell's amendment that is unacceptable, and that we propose to contest. Deputies can visualise for themselves the effect it would have on the discipline and control of places of detention if any member of the Oireachtas could visit any prison, and Deputies can imagine too, most of them from their own recollections, the amount of material that would be awaiting each such visitor, the amount of false propaganda that would be awaiting such visit, and if Deputies lack that degree of imagination that will enable them to visualise the conditions, I am afraid I can contribute very little towards helping them. It is always the same thing, that one could imagine visits by certain Deputies to these places of detention as absolutely innocuous, and one could imagine visits by other Deputies as extremely injurious to the discipline of these places, and calculated to provoke nothing but mischief, and mischief of a particularly futile kind, yet one cannot discriminate. When confronted with an amendment containing a provision of that kind, there seems to be no alternative but to take a stand strictly on this, that it is not possible to make a concession of that kind. In discussing an amendment by Deputy Gavan Duffy we had before us the question of admitting certain medical members of either House of the Oireachtas, and that amendment was discussed and defeated.

This probably goes even further and says that any member of the Oireachtas, any Senator or any Teachta should be free to visit any detained person and presumably every detained person. Now I do submit that there is no more case for that than for allowing, let us say, Deputies to visit and inspect every Department and see just how each department is run, how each official is doing and generally to overhaul the whole Executive machine. That is not among the privileges of Deputies. The Executive machine is judged by its results and if these results are unsatisfactory to Deputies then Deputies take the obvious and proper course. This provision is pretty much upon all fours with that. The proposal that any Deputy, and even any Senator who is not in a representative capacity—the Seanad being constituted as it is at the moment—that any member of either House should be free to visit detention camps, and to interview any and every prisoner is something which we hold to be improper and a challenge to the proper position and proper function of the Executive, and something which I believe would not be admitted or accepted by any Executive Government anywhere. I have no desire whatever to mention names of Deputies, but with the knowledge of the situation existing in this Dáil and the relation between the Government and certain Deputies one can well imagine endless mischief being created by a provision of this kind— futile fractious mischief—and one can imagine the interest and anxiety with which each visit of certain Deputies would be awaited and the amount of frivolous material that would be piled up in anticipation of his coming. I do not believe that any Executive could with propriety accept an amendment of that kind and I do not believe that Deputies who are moving, or Deputies who will vote for it, if they were in a position of primary responsibility for discipline and proper control over places of detention, would entertain a suggestion of this kind.

Amendment put.
The Dáil divided: Tá, 9; Níl, 32.

  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Liam O Briain.
  • Tomás Ó Conaill.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Muirgheasa.
  • Domhnall Ó Ceallacháin.
  • Seoirse Ghabháin Ui Dhubhthaigh.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Seán O Duinnín.
  • Mícheál Ó hAonghusa.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Seán Ó Ruanaidh.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • 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.
  • Uinseann de Faoite.
  • Mícheál de Staineas.
  • Séamus Ó Dóláin.
Amendment declared lost.
Mr. Gerald FitzGibbon took the Chair at this stage.

I beg to move Amendment 20 to insert in Section 15, page 9, before the word "notwithstanding" on line 12, the words "save in respect of the powers expressly conferred and the procedure expressly prescribed by this Act."

Mr. O'HIGGINS

The purpose of Section 15, as it stands in the Bill, is to preserve the Common Law powers which vest in the Army by virtue of military necessity, and by virtue of the fact that the restoration of order in the country has been entrusted to the Army. The effect of the Deputy's amendment would be to put an end to that Common Law power, at least where it overlaps the powers given by this Bill, and probably to put an end to it altogether. I am advised that that in fact would probably be the effect of the acceptance of the Deputy's amendment. Now in a transition stage between war and peace, between a condition of anarchy and armed revolt and settled conditions, the Executive feels that it must have both the Common Law powers arising from military necessity, and the Statutory powers which this Bill proposes to confer, so that we could pass gradually and easily from the former to the latter, pass from the former to the latter not for the whole country simultaneously, but for areas as order is progressively restored throughout the country The Bill applies to the whole country, and if the Statutory powers are to be substituted for the Common Law powers, that substitution would take place simultaneously for the whole country, whereas what is wanted is the gradual transfer from the one to the other, the Common Law powers gradually, easily and naturally giving way first to the Statutory powers conferred by this Bill, and subsequently at the termination of this Bill to the ordinary rule of civil authority. We have tried to visualise the situation that will exist in the country, probably during the next six months. It is not contested that, if the improvement of the last three or four months continues, and continues progressively at the same rate as has been maintained, say, since January or February, that it will be possible to rely less and less on the plea of military necessity, and to confine the actions of the troops more and more to strict Statutory limitations. But in the conditions that exist, and with all the elements of trouble that still exist, and exist so largely through the country, we could not, by the acceptance of this amendment, derogate, or seem to derogate, from the Common Law powers of the military that are vested in them when a military situation arises. It is conceivable that we might have a patchwork situation in the country; and it is conceivable that there will not be general acceptance by those who have been in revolt against the Government, for the termination of hostilities which was so recently announced by one who may or may not prove to be their leader. But it is not a matter in which you can take risks; it is not a matter in which you can afford to have your troops taking certain action which, to them, seems necessary to cope with the military situation, and the Courts later saying that by reason of a particular wording in this Bill we have, in fact, excluded the use of such powers.

There is overlapping between the powers which this Bill proposes and the Common Law powers of the military, and I am advised that by the acceptance of this amendment, in fact by any change in the wording of Section 15, I would be running serious risk of encroaching, or seeming to encroach, on the powers which the military have, and which the military ought to have, to deal with a situation of war or armed revolt. I regret therefore I cannot accept the Deputy's amendment.

Amendment put.
The Dáil divided: Tá, 9; Níl, 31.

  • Tomás Mac Eoin
  • Seoirse Ghabháin Ui Dhubhthaigh.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Suileabháin.
  • Uaitear Mac Cumhaill.
  • Micheál Ó hAonghusa.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Darghal Figes.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Mícheál de Staineas.
  • Domhnall Mac Cárthaigh.
  • Sir Séamus Craig,
  • Liam Thrift.
  • Liam Mag Aonghusa.
  • Pádraic Ó Máille.
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Séamus Ó Dóláin.
  • Aindriú Ó Láimhín.
  • 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.
  • Earnán de Blaghd.
Amendment declared lost.

Amendments 21 and 22 deal with the same word in the next Section. I do not know what the effect of Deputy Duggan's amendment will be upon the amendment in the name of Deputy O'Callaghan.

I formally move amendment 21—in Section 16, page 9, line 22, to delete the word "captain" and to substitute therefor the word "Colonel."

Mr. O'HIGGINS

There is evidently a division of opinion between the Wicklow Deputies as to the exact rank the responsible officer ought to hold. I prefer the view of Deputy Everett that "Commandant" ought to be the rank of the responsible officer mentioned in the Bill, and I am inclined to agree that it was proper to raise the rank from that of Captain. I propose to accept the next amendment (22) but not the amendment moved by Deputy O'Callaghan. It is not an amendment that one could have much controversy about but the area that is in general charge of a colonel is rather too large to allow direct personal contact with every case. As that is advisable, we have thought that the Battalion area, normally commanded by a Commandant, is about as large as one man could be made directly or personally responsible for. We incline to the view that arrests made by the military under the provisions of this Bill ought to be made on the authority and on the personal responsibility of a Commandant commanding a Battalion area, rather than on that of a Colonel. After all, the rank of Colonel attaches normally to the second in command of the entire area commanded by a G.O.C. That is rather a large jurisdiction to put in a personal direct way upon one man for the purpose of this Bill. I think the Deputy ought to reconsider his amendment and to agree with the official view that a Battalion area is quite large enough within which to impose a personal responsibility for arrests under the provisions of this Bill, and to agree that the rank of Commandant is sufficiently high to secure a discreet and responsible discharge of duty.

Having heard the explanation of the Minister, would Deputies O'Callaghan and Lyons be disposed to withdraw their amendment, the Minister having intimated that he would accept the amendment in the names of Deputies Corish and Everett?

Amendment put.
The Dáil divided: Tá, 9; Níl, 28.

  • Liam Mag Aonghusa.
  • Tomás Mac Eoin.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Uaitéar Mac Cumhaill.
  • Mícheál Ó hAonghusa.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Darghal Figes.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Sir Séamus Craig.
  • Liam Thrift.
  • Pádraic Ó Máille
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Séamus Ó Dóláin.
  • Aindriú Ó Laimhín.
  • Próinsias Mag Aonghusa.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
Amendment declared lost.

I beg to move Amendment 22: "In Section 16, page 9, line 22, to delete the word `captain' and to substitute therefor the word `commandant.' "

Amendment agreed to.

I beg to move Amendment 23: "In Section 16, page 9, line 23, to insert after the word `force' the words `other than Civic Guard and the Dublin Metropolitan Police.' " The object of the amendment is to save these two Forces from the odium of being political bodies.

Mr. O'HIGGINS

If Deputies will refer to Section 1, sub-section (1) (a), they will find that the Bill provides that it "shall be lawful for an Executive Minister to cause the arrest, and, subject to the provisions of this Act, to order the detention in custody in any place in Saorstát Éireann of any person in respect of whom such Minister shall have received a report from a responsible Officer that there is reasonable ground for suspecting such person of being or having been engaged, or concerned in the commission of any of the offences mentioned in Part I. of the Schedule to this Act."

Turning to Part I. of the Schedule we find that the offences set out are "armed revolt against the Government of Saorstát Éireann; threatening, coercing, assaulting or intending to threaten, coerce or assault any person in furtherance of any such revolt; destroying, damaging or removing, or attempting to destroy, damage or remove any property in furtherance of any such revolt." I cannot agree that the crimes set out in Part I. of the Schedule are outside the scope or province of members of the Civic Guard or Dublin Metropolitan Police, and turning again to Section 2, sub-section (1), the Bill states that "it shall be lawful for a responsible officer to arrest and detain in custody for any period not exceeding one week any person found committing or intending to commit, or whom such officer suspects of having committed any of the offences mentioned in Part II. of the Schedule to this Act." In Part II. of the Schedule twelve offences are set out, all of a rather serious nature, both intrinsically and in their effects on the peace and order and general wellbeing of the State. I cannot agree that the offences mentioned in Part II. of the Schedule are outside the scope or province of members of the Civic Guard and Dublin Metropolitan Police, and for these reasons I do not propose to accept the Deputy's amendment.

Amendment put.
The Dáil divided: Tá, 9; Níl, 29.

  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Uaitéar Mac Cumhaill.
  • Mícheál Ó hAonghusa.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Darghal Figes.
  • Mícheál de Duram
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Sir Séamus Craig.
  • Liam Thrift.
  • Liam Mag Aonghusa.
  • Pádraic Ó Máille.
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigin.
  • Séamus Ó Dóláin.
  • Próinsias Mag Aonghusa.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Liam Mac Sioghaird.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Alasdair Mac Caba.
  • Piaras Béaslaí.
Amendment declared lost.

I beg to move the following amendment, which provides a definition of the expression "military forces."

In Section 16, page 9, line 34, to add at the end of the section the following words "the expression `military authorities' includes the Army Council for the time being of the National Army, General Officers commanding districts, and other officers having executive command of troops."

I had a conversation with Deputy FitzGibbon about this amendment, and he asked me to move it in his absence. It is merely a verbal change, which, I think, will commend itself to Deputy Duggan. It is to make the wording of the definition "military authorities" coincide with the wording of other definitions in the same Section. The amendment moved by Deputy Duggan indicates that "military authorities" includes so and so. The amendment I have to move in the name of Deputy FitzGibbon is to substitute the word "means" for "includes" and insert the word "or" between "Army, General," and the word "or" for "and" after "districts." The changes are entirely verbal, but they have the effect of giving a definition which is in line with other definitions. As the word "includes" stands at present, it is not an exclusive term. This alteration I suggest would make the definition quite definite.

Mr. O'HIGGINS

In that connection I think that Deputy Duggan ought to accept the slight verbal, change recommended by Deputy Thrift, and therefore I think it would be an improvement to the definition to have it read as follows: —"The expression `Military Authorities' means the Army Council for the time being of the National Army, or a General Officer Commanding a District, or any other officer not being below the rank of a Commandant, having Executive Command of troops." We have just dealt with an amendment which defines that the "responsible officer" mentioned throughout the Bill shall be an officer of not less than Commandant's rank. The question might arise hereafter as to what officers, and of what rank, might be said to have executive command of troops. Possibly a Lieutenant might be correctly said to have executive command of a certain number of troops, and I think, in defining "Military Authorities," we ought to keep the rank as high as "responsible officers," mentioned in other portions of the Bill. I would, therefore, ask the leave of the Dáil to substitute for Amendment 24 as it stands the following amendment:—"The expression `Military Authorities' means the Army Council for the time being of the National Army, or a General Officer Commanding a District, or any other officer not being below the rank of Commandant having executive command of troops."

Does Deputy Duggan accept the alteration of the Minister for Home Affairs?

Amendment, as amended, agreed to.
Amendment by

"In Section 17 (2) to insert after the word `thereof,' line 38, the words `or until such earlier time as Dáil Eireann may by resolution declare that public order and safety can be adequately maintained by the exercise of the powers vested in the civil authorities prior to the passing of this Act.' "

I move this amendment.

Mr. O'HIGGINS

I contest this amendment on the grounds that it is not necessary. It is superfluous to the Bill. Section 17, Sub-section (2), provides that this Act shall continue in force for six months after the passing thereof, and shall then expire. If before six months, the lifetime of this Bill, the Dáil is of opinion that the situation is such that the Executive no longer require the powers conferred by the Bill, and if the Executive persists in its view that those powers are required, and persists in exercising those powers, then the Dáil, to which the Executive is responsible, can defeat the Executive, and can in that way press its view that such powers should not be exercised. But it is wrong to embody in your legislation a provision of this kind—that, in fact, the exercise of the powers conferred by the Legislature may be annulled, not by an amending or repealing Bill, but by a resolution of the Dáil. Every Parliament has in its power the changing of the Executive and the removal of its mandate. It is a simple thing to formulate a resolution of no confidence on this issue, or on any other issue, and to cite in support of it, not merely abuse or misuse of power arising from a particular Bill, but to indict the Executive generally for all or any of its misdeeds. It would be a bad principle to start inserting in legislation a provision that that legislation can be held up or suspended by a resolution of the Dáil. The Executive considers that these powers which are asked for in this Bill may be necessary for six months. If they are not necessary for six months, then the Executive, if it acts in a responsible spirit, will not exercise them; and if it exercises them contrary to the judgment of the Dáil, the Dáil will, no doubt, find means of expressing and enforcing its view; but I do not think that we ought to insert such an amendment as the Deputy suggests, and I do not propose to accept it.

Amendment put.
The Dáil divided: Tá, 8; Níl, 32.

  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid Ó Súileabháin.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Liam Mag Aonghusa.
  • Pádraic Ó Máille.
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Séamus Ó Dóláin.
  • Aindriú Ó Laimhín.
  • Próinsias Mag Aonghasa.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnaill.
  • Uinseann de Faoite.
  • Seán Ó Duinnín.
  • Uaitéar Mac Cumhaill.
  • Seán Ó Ruanaidh.
  • Eoin Mac Néill.
  • Piaras Béaslaí.
Amendment declared lost.
An Ceann Comhairle resumed the Chair at this stage.

On behalf of Deputy Corish, I formally move amendment 26: "In the Schedule, Part II., paragraph 2, page 10, to insert before the word `having' the word `knowingly.' "

Mr. O'HIGGINS

One of the things that it is almost impossible to prove is knowledge—the condition of a man's mind. It is very hard to produce evidence regarding that. Always in the case of stolen property a person is charged with being in possession of it, and it is for him to establish what case he can to the effect that he was not aware that he was in possession of that property, and the Court will take all the circumstances into consideration, and decide whether it is at all likely that the property concerned could be in the place where it was discovered unknown to the owner of the premises or the person charged with the offence of having that property in his possession. But it would simply be stultifying ourselves to put on the prosecution the onus of actual proof that the person knew that the property was there. If a revolver is found in a man's trunk, he is charged with being in possession of the revolver without lawful authority. If he is able to satisfy the Court that he was not aware that the weapon was in his trunk or in his possession, then the Court, no doubt, will consider that, and consider the case which he is able to put up towards that. I may be told I am taking an extreme case—the case of a revolver in a person's trunk. I may be reminded that arms are dumped throughout the country, and that necessarily and naturally they are dumped upon someone's premises, and that it could well happen that they were so dumped unknown to the owner of the premises. Well, each case will have to be taken on its merits, and the Court will have to decide whether, in all the circumstances, it was at all likely that the dumped arms or ammunition or explosive of some kind could be put in a man's yard, or about his premises, without any guilty knowledge whatsoever upon his part. But I submit that any Executive authority would be stultifying itself by taking on the onus of proving guilty knowledge. It is for the man in whose possession, or on whose premises, prohibited articles of this kind are found, to put his case to the Court that they were there without any knowledge or connivance or complicity whatever on his part.

Amendment put.
The Dáil divided: Tá, 9; Níl, 32.

  • Riobárd Ó Deaghaidh.
  • Tomás Mac Eoin.
  • Liam Ó Briain.
  • Tomás Ó Conaill.
  • Aodh Ó Cúlacháin.
  • Seán Ó Laidhin.
  • Cathal Ó Seánáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.

Níl

  • Liam T. Mac Cosgair
  • Mícheál Ó hAonghusa.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Mícheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Sir Séamus Craig.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Liam Mag Aonghusa.
  • Pádraic Ó Máille.
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Séamus Ó Dóláin.
  • Aindriú Ó Láinhin.
  • 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.
  • Uinsean de Faoite.
  • Seán Ó Duinnín.
  • Seán Ó Ruanaidh.
  • Eoin Mac Néill.
  • Piaras Béaslaí.
Amendment declared lost.

I beg to move an amendment in the Schedule, Part II., page 10, paragraph 6, to delete the words "offensive weapon or instrument," and to substitute therefor the words "lethal firearm."

Mr. O'HIGGINS

The object of the amendment is to change the definition of robbery under arms. In the Schedule robbery under arms is defined as robbery, or attempted robbery, with arms or any offensive weapon or instrument. The Deputy wants to remove the words "offensive weapon or instrument," and to substitute therefor the words "lethal firearm." The gist of the offence of robbery under arms is the physical fear that is brought to bear upon the mind of the victim it is proposed to rob, and it is not material to the offence that the fear should be fear of having a piece of lead propelled through his anatomy by means of an explosive. The offence lies in the threat to do physical violence in default of money or property being handed over. We cannot discriminate between the use of a 32 automatic and the use of a sandbag or an iron bar, and the offence does not lie in the use of a particular weapon or a particular instrument, but in the fact that physical fear is brought to bear upon a man to induce him to hand over his goods, and that he is offered the alternative to handing over his goods of undergoing serious physical violence, with probably the handing over of his goods in any case as a follow up.

As I say, there was some consideration given to the question as to whether robbery with violence of this kind, or with a threat of grave violence, ought not to be made a capital offence in all the existing circumstances in the country and in view of the prevalence of the offence. It is almost certain that the man who goes out to rob in this way, whether he has a revolver, an iron bar, or a sandbag, is prepared to kill, if necessary, and the partition between that particular crime and the crime of murder is of the slightest. However, it was felt that in normal, or even semi-normal, times the public conscience would be against the taking of life except in cases where life had been taken, and we have substituted the other penalty—drastic, no doubt, but not fatal or final. I cannot agree to accept the Deputy's amendment. It would simply be to put a premium on the use of one particular weapon rather than on another, and to say that the man who robbed with a gun will suffer the penalties of this Bill, but that the man who robs with a crowbar, a pitchfork, a scythe, a hatchet, or a sandbag, will get off better. It is the crime of robbery—the crime of robbing under threat of a grave physical injury—that is aimed at in this Bill, and we cannot agree to cover by this provision only the crime of robbery with the use of firearms.

Amendment put and negatived.

I beg to move Amendment 28, in the Schedule, Part II.. page 10, to delete paragraph 10.

Mr. O'HIGGINS

The purport of the amendment is to delete that paragraph of Part II. of the Schedule which prohibits. under the penalties set out in Section 5. illicit distillation, or having possession or control of any illicitly distilled spirits, or any illicit still, or any articles or materials for illicit distillation. I regret I cannot meet the Deputy in this matter. The poteen traffic has become a serious evil in many counties. I pointed out some time ago that every brutal and unnatural crime practically that has been committed in the country has been committed within the zone of the illicit still, and that this offence has spread to people of all ages and of both sexes. I was speaking some time ago to a young Civic Guard who had been on duty in a certain area in Sligo. He told me that he had seen children reeling drunk along the roads coming home from school, drunk from poteen. I know that over Christmas time and the New Year there was a large tract of country in the West of Ireland where it would have been difficult to find for a week a sober man or woman. This crime menaces order, progress, and decency in the life of the country. If the country is to live and flourish, that particular traffic will have to be stamped out ruthlessly. It is a fact beyond all question—a scientific fact—that its results will be found in succeeding generations, that the children born of men and women addicted to the use of poteen will be deficient. It is not an amiable eccentricity. It is a degrading, demoralising vice that, in the interest of the State, present and future, must be grappled with and must be stamped out at all costs.

Amendment put and declared lost.

On behalf of Deputy O Cúlacháin, I beg to move: "In the Schedule, Part II., page 10, to delete paragraph 2." (Amendment 29.)

Mr. O'HIGGINS

This amendment proposes to delete from Part II. of the Schedule the offence of selling, or offering, exposing, or having for sale any illicitly distilled spirits. The considerations which urge me to oppose this amendment are, roughly, the same as the considerations which I have urged against the previous amendment.

Amendment put and declared lost.

The motion is: "That the Bill, as amended, be received for final consideration."

Before the motion is put I desire to call attention to two or three matters which were not dealt with, or dealt with at any length, on the last occasion. The Minister on the previous Reading very frankly agreed to put in words which would specifically show that internment could not continue beyond the period of the Bill. He has made an effort to carry out that undertaking in Section 2 by putting in the words "subject to the provisions of this Act," as governing the power to order internment. Those words were already in the Bill in Section 1. I take leave to differ from the Minister's advisers if they think that the phrase, "Subject to the provisions of this Act," will necessarily and certainly be interpreted by the Courts as meaning that internment cannot continue beyond the period of this Bill. As this Bill has still to go before the Seanad, I think it is worth while drawing attention to the fact—the Minister will have plenty of time to consider the point—so that some other words stating more specifically what is meant should be put in.

I desire to draw special attention to the same point in Section 4, Sub-section (4) (b), in which the Minister has forgotten that it was necessary to put in words restricting the power of internment to the period of this Bill. That section enables the Minister to intern a person who has appealed during such period as he considers that the public safety would be endangered by such person being set at liberty. I think everyone will see at once that it is necessary there to put in some qualifying words. I do very strongly urge that better qualifying words should be adopted than the phrase, "Subject to the provisions of this Act." I should like the same phrase used in the two places—where this matter occurs already and in Section 4—some phrase such as "During the continuance of this Act," or "so long as this Act remains in force"— something that will be absolutely clear. I think the Dáil will see at once that to give the Minister power to intern an appellant during such period as he thinks necessary enables the Minister to order, let us say, internment for life, internment for ten years, internment for two years. It is during the period that the Minister considers necessary. I gathered from the Minister on the last occasion that that was not at all his intention, and I ask for an undertaking that that matter be put right by putting in words which will make the intention clear— namely, that this power of internment, in every case where it exists, stops with the Bill when the Bill ceases to have effect.

I may point out, in connection with the words "subject to the provisions of this Act," that that phrase would be unfortunate and meaningless if put in in Section 4, as, if you were to use that phrase where you expressly state that the Minister can intern for as long as he thinks necessary, obviously there would be the greatest danger and likelihood that the interpretation of the clause would be that "subject to the provisions of this Act" merely means obeying the forms prescribed by this Act; that inasmuch as the Act gives the Minister power to fix the period, the period is not limited by the length of the Act any more than a period of penal servitude or imprisonment in another section.

I also wish to refer to Section 3, Sub-section (2), and to protest against this Dáil passing a law whereby persons are to serve their sentences either unexpired or undischarged on the assumption that those sentences are properly awarded when we have no information whatever about those sentences. I think that this Dáil, to do itself justice, before it purports to sanction sentences that have been given, should have before it a schedule of the cases to which the section will apply. We have no such thing. We do not know how many people were sentenced; who were sentenced; what they were sentenced for. In fact, we know nothing about this matter on which we are purporting to legislate. We are saying that men who have been sentenced by Military Courts must carry out their sentences. We should not say that without knowing exactly what we mean. None of us knows what that means.

Incidentally, it seems to me that that clause amounts to an indirect Act of Indemnity to the military who took part in the functioning of those tribunals. It is common knowledge that a number of Military Courts have sat in the City of Dublin and the County of Dublin since Christmas. It is also common knowledge that the Constitution provides that special Courts shall not sit even in time of rebellion in places where the ordinary Courts are capable of sitting. It is, therefore, to put it at the very lowest, extremely arguable that a good many of these Courts have been sitting in an illegal way, and that their sentences have been illegal, because they were sitting here in Dublin when the ordinary Courts were sitting. If this Dáil ratifies sentences about which it knows nothing, passed in secret, at a moment when we know that under the Constitution some of those Courts ought not to have been held because there were civil Courts sitting in the same place, it is doing a thing which cannot be defended, and that particular section is one against which I must very strongly protest.

One word as to the Preamble. The first part of the Preamble deals with the crimes committed by the Irregulars. I raise this matter, not by way of recrimination, because I could say a great deal more if I wanted to raise it by way of recrimination. But I am anxious to see the time when recriminations will cease. I do think that there is too much of this "killing Kruger with your mouth." The Ministry cannot stand up in a white robe of innocence, as if no crimes have been committed on their side. It is not a question of the truth or untruth of what is said here. I venture to think that a short time hence the Ministers themselves will regret that they were parties to putting on the Statute Book statements which make reconciliation more difficult. The Bill would be every bit as effective if all that first part of the Preamble were left out. I do not think these statements, however true, can give any particular satisfaction to anybody, and they are yet another block in the way of coming to terms, coming to agreement, or making some kind of reconciliation such as must be made sooner or later. Is there any particular object in it, more especially when we realise that many of these allegations can be made, not on one side only, but on the other also?

The President is reported in the papers as having made a speech yesterday, the tone of which we all should welcome. He said he wanted to forget and forgive, thus evincing a spirit which we all like to see from the head of the Executive— a spirit breathing reconciliation. The bringing in of a Bill like this is a little difficult to reconcile with that spirit, but the introduction to the Bill by re-hashing all these charges that we see here is surely not consonant with that spirit. I ask Ministers to think it over and see whether they will not themselves realise that it is better the Statute Book at least should be free from these particular charges which are set down here at considerable length in black and white.

Lastly, it is, perhaps, too much to hope that we could get a direct statement on the Constitutional question, as to which Ministers have been a little shy. I have tried to ascertain whether or not it is the Ministerial view that this Bill is an amendment of the existing Constitution. Not one word has been dropped from anyone on the Ministerial side suggesting that there is any intention to amend the Constitution. The Ministers have not said, on the contrary, that there is no such intention. They have left the matter open for anyone to put his own interpretition on. I take the view, and I think many others will take it, that this Bill is unconstitutional in many respects I think the Dáil, when it is asked to pass a Bill of this kind, is entitled to know exactly in what light the matter is put before it by the Minister. Are you or are you not purporting to ask us to change the Constitution? I do not want to say any more about the other matters, which have been dealt with fully. I see no reason to repeat the objections that I made before. The Dáil knows that I feel strongly on this matter. I do ask that attention be given to these matters to which so little attention has been given, and also to the other points to which exception was taken on the previous Reading.

I would like Deputy Duffy to know that we have no intention in this Bill, or in any other legislative proposal we have brought forward, to amend the Constitution. I might also direct the Deputy's attention, as he has thought fit to give us a little lecture, to a speech which he delivered a short time ago, in which he made some joy out of a funeral. I never heard that done before. Perhaps the Deputy was a little excited, or perhaps his associations before it were a little bit exhilarating. But it was not a happy phrase. I never saw a funeral I enjoyed.

In any statements I have made, either here or outside, I do not think I have departed from the one attitude—the desire to see an end of this bitterness. I do not think it is not possible to see an end to this business and at the same time have the truth. Whatever there is in the Preamble to that Bill is, unfortunately, the truth. I regret it is. Deputy Gavan Duffy knows as well as I do that last year for six months we acted in accordance with the recommendation he is giving us now—exactly the same sort of toleration and the same sort of magnanimity. We know how it was treated. We know that in the whole history of our country there never was a more deplorable period than there was from January to July. We had then to take strong action. I have yet to hear of any war which has been carried on free from excesses by one side or the other or by both sides. I have dealt before with the manner in which our troops dealt with the war. Anybody who examines their conduct will say that they acted with remarkable forbearance. When the occasion did arise necessitating action on our part for breaches of order or discipline we instituted inquiries at once and took necessary action. The same cannot be said of the other people when they were faced with excesses on their side. There was no repudiation, no apology, and no expression of regret. That is not the spirit in which we can come to agreement. They are fanning themselves eternally and trying to fan the country into the belief that they are the greatly wronged people—I might say the great unkissed, because I am sure, from what I see of them, that there are very few who would be inclined to give them the chaste salute.

Motion: "That the Bill, as amended, be received for final consideration," put and agreed to.