There are twelve of these amendments. Amendments 1 and 2 are identical in their effect. Amendment 1 is to delete in Section 1 all after the word "shall," line 42, to the word "officer," line 43, and to substitute therefor the words "certify in writing that he is satisfied." The paragraph (a) would then read:—“In respect of whom such Ministers shall certify in writing that he is satisfied 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.” The amendment moved in the Seanad deletes all reference to a report from a responsible officer, and places the responsibility definitely and directly on the Minister himself. As the paragraph stood it would have been sufficient for a Minister, without claiming direct personal knowledge of the case, to say that a report had been received from a responsible officer, and that that was good enough for him. Senator Douglas, who moved the amendment, contended that that was unsatisfactory; that in a matter so grave as the detention without trial of a citizen the Minister should put his hand to a statement that he himself was definitely satisfied that there were reasonable grounds for suspecting the persons concerned of the commission of some of the offences mentioned in Part I. of the Schedule to this Act. He, therefore, moved to delete a reference to the responsible officer and to substitute for that a certificate over the name of the Minister that he was satisfied that there was such reasonable suspicion. I move: “That the Dáil agree with the Seanad in the amendment.”
PUBLIC SAFETY (EMERGENCY POWERS) BILL, 1923. - DAIL IN COMMITTEE.
Mr. O'HIGGINS
I beg to move that we add after the word "satisfied""from reports received in writing from responsible officers." The object of the amendment is to ensure that the Minister's grounds for believing that a person should be imprisoned are that he is suspected of being engaged in the commission of certain offences, that he should state in writing that the grounds upon which such suspicion as he is prepared to certify in writing have some real basis in reports received from responsible officers, which reports can be referred to. It is not enough that the Minister should say that he is satisfied, or even that he should certify in writing that he is satisfied, unless we make it conditional that he has good grounds for so certifying, and that those grounds shall be reports received in writing from responsible officers. It may be an improvement to throw the responsibility upon the Minister for declaring that a person is suspect, but I think that the responsibility that he undertakes should have its basis in written reports, and mere verbal indications that so and so and so and so are not people who should be allowed to remain at large is not sufficient. I contend that there must be available somewhere in writing a statement which is producible in a Court that the mere written certification of a Minister, possibly having no basis on evidence of any kind, or even any basis in suspicion of a responsible officer, should not be allowed to pass through.
What would be the difference between that amendment if carried and the Bill as it stood? Is it not a direct negative?
I think not. The Bill as it stood said: "it shall be lawful for an Executive Minister to order the arrest and detention in custody of any person in respect of whom such Minister shall have received a report from a responsible officer." The Seanad amendment deletes these latter words respecting "a responsible officer," and substitutes that the Minister shall "certify in writing that he is satisfied." My desire is to ensure that the certificate in writing shall be made, and that such certificate shall be based upon a report in writing from a responsible officer. There is nothing in the Bill, as it went from the Dáil which said anything about a report from a responsible officer in writing.
The Seanad amendment deletes the provision as to the report from a responsible officer. The amendment Deputy Johnson proposes now simply puts back that in effect. "A report received in writing from the responsible officer." The only thing which we have before us is the amendment from the Seanad, and the only things we can discuss are the things which are relevant to the Seanad amendment. The Seanad amendment in this case simply deletes the idea of a report from a responsible officer. Deputy Johnson I think is simply re-inserting that. His purpose would just as easily be gained by voting against agreement with the amendment.
This is one of the difficulties we are under when we cannot have time to consider the effects of amendments. If we are given time to understand the effects of amendments that are proposed we might not make the mistake of producing further amendments which are doubtful. I ask—do you rule the amendment out of order?
I am in the same difficulty as Deputy Johnson. I only see the amendments before me now but there was urgency and the Dáil decided to take this matter now, and, therefore, we must only do our best in the circumstances. It appears to me that the amendment proposed is a direct negative, and that the purpose would be achieved by not agreeing with the Seanad amendment, and leaving the Bill in the position in which it left the Dáil. Therefore, I think, I cannot put Deputy Johnson's amendment.
Mr. O'HIGGINS
The second amendment is, in its effect, identical with No. 1. The Senator moving the amendment urged the same objection, that he wanted not to question a report from an officer of this rank or that rank, but the direct personal responsibility of a Minister, and he moved, therefore, to delete from the word "have," line 1 to the word "report," line 3, inclusive, and to substitute therefor in writing the words "certify in writing that he is satisfied that." The Section as amended would read, "In respect of whom such Minister shall certify in writing that he is satisfied that the Public Safety is endangered by such persons being allowed to remain at liberty." I move that the Dáil agree with the Seanad in that amendment.
Mr. O'HIGGINS
Amendment 3 was really officially inspired. Deputies will remember the contention we had here when the Bill was before the Dáil about the words "for stated reasons." My advisers told me that if it were set down in the Bill, that reason were to be stated for the detention of a person there is a technical legal effect in that, that it would bring it within the power, the scope and the competence of the courts to call for these reasons, and to proceed to enquire into their sufficiency and validity. In effect and practice that would amount to a trial. If the Court were to set themselves to inquire as to whether or not there was just cause for the detention of A.B., that would amount in fact to a trial of A.B. The whole underlying principle of this Bill is that an emergency exists which justifies the deterrent detention as distinct from the punitive imprisonment of citizens, and that the emergency justifies the Executive of the State in detaining citizens without trial and without sentence of the Courts.
I therefore move in the Dáil for the deletion of the words "for stated reasons" in any sections where they occur. Through an oversight these words remain in this Sub-section (2) of Section 2. I own to the Dáil that I asked a Senator in the other House to move the deletion of these words. That amendment was moved and was carried in the Seanad and I now move that the Dáil agree with the Seanad in that amendment.
I think this Section ought to remain as it stood when it left the Dáil in this respect. At any rate, we ought not to agree with the decision of the Seanad. The sub-section gives power to an Executive Minister to order the detention of any person in respect of whom the Minister certifies in writing that he is of opinion that the public safety would be in danger by such a person being set at liberty. That is how the Minister wants the section to read, and that is how the Seanad presumably has decided that the section should read. I believe that we should not agree with the motion of the Seanad to delete these words "for stated reasons," or even notwithstanding the Minister's plea that a certain legal responsibility would be involved by the retention of these words. I think they should be retained, and I think this legal responsibility should be imposed upon him. If such a Minister is prepared to certify in writing that he is of opinion that the public safety is in danger, surely it is not asking too much that he should state the reasons for such an opinion.
The Minister is a human being. I believe he is, notwithstanding Deputy Figgis' demur, and he must have reasons for an opinion, or he ought to have reasons for an opinion, and when we are dealing with such a matter as the imprisonment or the detention without charge of a citizen it should not be merely on the unsupported statement of the Minister, that in his opinion danger would arise from the freedom of the citizen, but he should state his reasons for coming to that opinion. The Minister has frequently argued upon the undesirability of putting in writing any reasons, because the Courts of Law require that where reasons are to be stated they may be called for by the Courts. That shows the wisdom of the Courts and the unwisdom of the Minister and of the Dáil, if it allows this amendment to be carried, in over-riding the established law in these cases. I do not think it is good, and it is because of this opinion that I oppose it still. I do not think it is good that the Executive Minister should have these powers, these extraordinary powers, without being called upon to state the reasons why he does things. Therefore, I ask the Dáil not to agree with the Seanad in these proposals to delete the words "for stated reasons."
Tá
- Liam T. Mac Cosgair.
- Donchadh O Guaire.
- Uáitéar Mac Cumhaill.
- Seán O Maolruaidh.
- Micheál O hAonghusa.
- Seán O hAodha.
- Seamus Breathnach.
- Pádraig Mag Ualghairg.
- Peadar Mac a' Bhaird.
- Darghal Figes.
- Deasmhumhain Mac Gearailt.
- Micheál de Duram.
- Seán Mac Garaidh.
- Risteárd O Maolchatha.
- Pilib Mac Cosgair.
- Domhnall Mac Eochadha.
- Maolmhuire Mac Eochadha.
- Earnán Altún.
- Gearóid Mac Giobúin.
- Liam Thrift.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Pádraic O Máille.
- Fionán O Loingsigh.
- Séamus O Cruadhlaoich.
- Criostóir O Broin.
- Caoimhghin O hUigín.
- Proinsias Bulfin.
- Tomás Mac Artúir.
- Aindriú O Laimhín.
- Liam O hAodha.
- Proinsias Mag Aonghusa.
- Eamon O Dúgáin.
- Peadar O hAodha.
- Séamus O Murchadha.
- Liam Mac Sioghaird.
- Tomás O Domhnaill.
- Earnán de Blaghd.
- Séamus de Burca.
Níl
- Tomás de Nógla.
- Riobárd O Deaghaidh.
- Liam de Róiste.
- Tomás Mac Eoin.
- Liam O Briain.
- Tomás O Conaill.
- Aodh O Cúlacháin.
- Séamus Eabhróid.
- Cathal O Seanáin.
- Domhnall O Muirgheasa.
- Risteárd Mac Fheorais.
- Domhnall O Ceallacháin.
Mr. O'HIGGINS
The next amendment of the Seanad is in Section 4, Sub-section (1), to delete in line 46 the words "persons certified by the Attorney-General to have legal knowledge and experience" and to substitute therefor the words "a practising barrister or solicitor of not less than five years' standing." I move that the Dáil agree with the Seanad in the said amendment.
Mr. O'HIGGINS
I move that the Dáil agree with the Seanad in Amendment 5: To delete Sub-section (4) and to substitute therefor the following new sub-section:—
(4) When such an Executive Minister shall receive a report from an Appeal Council that there are no reasonable grounds for suspecting the person interned of having committed or being engaged or concerned in the commission of any of the offences mentioned in the Schedule to this Act, he shall, within one calendar month from the receipt of the report, order his release unless—
(a) he shall refer back the report to the Appeal Council for the consideration of further evidence; or
(b) the person be charged with any offence punishable by imprisonment.
The objection to giving the Appeal Council power to order the release was based on the grounds that it was not a Court, that it is an advisory body. I could not see any way out of the difficulty of reserving to the Executive the Executive act of ordering the release of a detained person. This amendment rather gets over that, because the mandate is from the Oireachtas, and not from the Appeal Council. I stated in the Dáil that I could not conceive that in one case out of a hundred—for that matter one case out of several hundred—that the recommendation of the Appeal Council would not be acted on. Yet I could not give away the principle that the Appeal Council was simply an advisory body, to make its recommendations, and that the Executive act of release should be the act of the Minister or the act of the Executive Council. This new sub-section is preferable in form, because an order at least comes from a body that has a right to order. In the Seanad I accepted this amendment, and stated that I was willing to ask the Dáil to recommend it. I now move that we agree with this amendment.
I congratulate the Minister upon the lesson he has learned in the Seanad, and upon the gentle way in which he has pleaded guilty to advising the Dáil wrongly when this Bill was before the Dáil. I think the amendment is a considerable improvement on the Bill as it left the Dáil, and I propose to support this motion.
Mr. O'HIGGINS
I move that we agree with the Seanad in Amendment 6: In Section 5, Sub-section (1), lines 23 and 24, to delete the words "penal servitude for any term not less than three years" and to substitute therefor the words "such term of penal servitude as the Judge may decide."
Will the Minister make a case for his motion?
Mr. O'HIGGINS
The case is, that I always like to meet amendments, wherever possible, and I see no grave objection to this amendment.
Mr. O'HIGGINS
I move that we agree with the Seanad in Amendment 7: In Sub-section (2), line 27, to delete the word "shall" and to substitute therefor the word "may." The reasons for that amendment were eloquently stated in the Seanad. I do not propose to repeat them.
They carried more weight there than here.
I take it that the Minister is proposing that the Dáil agree with this amendment.
Mr. O'HIGGINS
Yes.
He is prepared to recommend it on its merits?
Mr. O'HIGGINS
On its demerits.
Mr. O'HIGGINS
I move that we agree with the Seanad in Amendment 8: In Sub-section (2), line 29, to delete the word "of" and to substitute therefor the words "not exceeding." The effect is considerable. Instead of a fine of £50 we have a fine not exceeding £50. £50 is fixed as a maximum instead of a set figure.
Mr. O'HIGGINS
I move that we agree with the Seanad in Amendment 9: In Sub-section (3) to delete the word "shall," line 35, and to substitute therefor the word "may"—"every person found guilty on indictment of any of the offences mentioned in Part 2 of the Schedule of this Act may be sentenced either"—and so on instead of "shall."
Mr. O'HIGGINS
I move that we agree with the Seanad in Amendment 9 (a):—In Sub-section (3), line 37, to delete the word "three" and to substitute therefor the words "not exceeding five."
The Senator who succeeded in inserting "may" instead of "shall" was so pleased that he volunteered a concession of "not exceeding "five," instead of the word "three" in line 37, which I accepted, and which I now ask the Dáil to accept.
The Minister seems to have been making bargains in the other House. I do not know that the bargain in this case is altogether a good one. It is adding, if I understand him correctly, two years to the period for which a man may be sent to penal servitude—five years instead of three. The Dáil has been agreeable enough to accept the better judgment of the Seanad to make these punishments permissive and not mandatory. But it is rather asking too much that they should extend the permissive period of penal servitude from three years to five.
Mr. O'HIGGINS
The objection in the Seanad was to making the penalty mandatory on the court. Most of the Senators stated that it was not that they believed that three years were excessive, but that they believed the court should have a discretion. One Senator stated so far from believing that three years was excessive, that he could imagine cases in which a sentence of three years would be too light a sentence for certain offences. It was in that spirit that the maximum was raised to five and the word "shall" was changed to "may." There is a discretion in the Court in sentencing up to five years—that is permissive; it is within the discretion of the Court. Presumably only in very grave cases would a sentence so high as five years be inflicted.
We, when framing the Bill, aimed not so much at long sentences as at certain sentences and swift sentences—sentences which the prospective criminal would have in his mind's eye when setting out to commit his offence, or when turning over in his mind whether or not he ought to commit the offence. There was great objection taken to that both here and in the Seanad, and it was urged that we should not make sentences mandatory; that we should not ourselves fix a flat sentence and say that that shall apply in all cases to a particular offence. The view is urged that the sentence ought to be left permissive. Leaving the sentence permissive—that is, changing the mandatory "shall" to the permissive "may" was not a question of a bargain. The members of the Seanad were impressed with the view that there might be very serious offences, and that there ought to be a discretion to the Court up to five years. We in putting in the word "shall" aimed practically at fixing a minimum, not at fixing a maximum. The maximum now is fixed at five years. We fixed a minimum of three years.
It is not quite correct for the Minister to say that the Dáil on the last occasion fixed a minimum of three years.
Mr. O'HIGGINS
In using the word "we" I meant the framers of the Bill.
In the Bill, as it left the Dáil, the maximum was 3. In the amendment which the Minister moves now the maximum is five years.
Mr. O'HIGGINS
Three years was both the maximum and minimum in the Bill as it left the Dáil.
Neither three nor five is the maximum. The fact of the matter is that if the man is poor and cannot get £100 to pay the fine, another year's imprisonment, making a possible six, is to be added. When we were debating this Bill before, the Ministerial side and this side differed on the question of allowing discretion to the judges. We stood out for allowing the judges discretion. The Minister stood out for making everything mandatory, including other very objectionable provisions of the Bill. A discretion has now been allowed to the courts, but I cannot see why, if, in the opinion of the Minister, the maximum for any of the offences in Part 2 of the Schedule should be three years, plus one if he be a poor man, it should now be permitted to the Courts to make the maximum five years plus one year, if the prisoner is a poor man.
I desire to support the view that the extension of the imprisonment allowable by two years should not be agreed to, especially in view of the other part of the paragraph, which puts up against failure to pay £50 a further year's imprisonment. As Deputy O'Shannon says, if a man is a poor man and cannot raise £50 or £100, or such sum between these two figures as the Judges may decide, then he will have to suffer another year of penal servitude, and there is no modification of that year. If he is a wealthy man, or if he has wealthy friends, he will buy off his year's imprisonment by paying £50 or £100, but being a man who has not got money he must pay the penalty of one year's penal servitude. That, of course, is an indication of the intentions of the Ministry in putting forward this Bill. I think we should not agree with this amendment, which would make possible six years' penal servitude to the poor man, as against five years for the man who can afford to pay £50 or £100. We should protect, if possible, the poor man against that bias against him because of his poverty. If we can retain the words "three years" we may save him a year's penal servitude. It may be, as the Minister says, that the offence would warrant five years' or even six years' penal servitude, but inasmuch as the Bill is, as I say, biased against the poor man, unless the Minister can suggest means of equalising the penalty, so that the wealthy man who can raise the £50 or £100 fine shall not be able to buy off his year's penal servitude, I think the Dáil should not agree with this amendment.
Mr. O'HIGGINS
Amendment 10 is consequential on that, and proposes to insert, instead of "term of three years," in Sub-section (3), lines 42 and 43, the words "previous term of imprisonment."
Mr. O'HIGGINS
Amendment 11: In Section 13 to insert after the word "detained," in line 4, the words "(e) providing for the inspection of such prisons, camps, and other places, and the visiting of persons detained therein by responsible persons to be appointed by the Minister, who shall discharge the functions aforesaid without remuneration." I move: "That we agree with the Seanad in that amendment."
Mr. O'HIGGINS
The twelfth and last amendment is in paragraph 12, Part 2 of the Schedule: To insert the word "knowingly" before the word "aiding." I do not think it has very much effect one way or another, because there is no offence in law without what the text book calls mens , a guilty condition of mind. If there were no guilty condition of mind the offence would not be there, but a Senator moved to insert the word “knowingly.” It is quite harmless and I accepted it, and I ask the Dáil to accept it.