Committee on Finance. - Offences Against the State Bill, 1939—Committee Stage.
Section 1 put and agreed to.
SECTION 2.
In this Act—
the word "organisation" includes associations, societies, and other organisations or combinations of persons of whatsoever nature or kind, whether known or not known by a distinctive name;
the word "document" includes a book and also a newspaper, magazine, or other periodical publication, and also a pamphlet, leaflet, circular, or advertisement;
the expression "incriminating document" means a document of whatsoever date, or bearing no date, issued by or emanating from an unlawful organisation or appearing to be so issued or so to emanate or purporting or appearing to aid or abet any such organisation or purporting or appearing otherwise to relate to or be connected with any such organisation or calculated to promote the formation of an unlawful organisation;
the expression "treasonable document" includes a document which relates directly or indirectly to the commission of treason;
the expression "seditious document" includes—
(a) a document consisting of or containing matter calculated or tending to undermine the public order or the authority of the State, and
(b) a document which alleges, implies, or suggests or is calculated to suggest that the Government functioning under the Constitution is not the rightful Government of the State or that there is in existence in the State any body or organisation not functioning under the Constitution which is entitled to be recognised as being the Government of the country, and
I move amendment No. 1:—
Before Section 2 to insert a new section as follows:—
(1) Parts II, III, IV, V and VI of this Act shall not come into or be in force save as and when or for so long as is provided by the subsequent sub-sections of this section.
(2) If and whenever and so often as the Government is satisfied that the ordinary law and the ordinary methods of criminal prosecution and procedure are not sufficient to prevent or punish offences against the State of the kind set out in Part II of this Act or to suppress and control organisations of the kind contemplated in Part III of this Act or to ensure the peace, order and good government of the State it shall be lawful for the Government to make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that Parts II, III and IV of this Act or any one or more of such Parts shall come into force.
(3) Whenever the Government makes and publishes under the next preceding sub-section of this section such proclamation as is mentioned in that sub-section the Part or Parts of this Act mentioned in such proclamation shall come into force forthwith.
(4) If at any time, while the Part or Parts of this Act mentioned in the proclamation made and published under sub-section (2) of this section is or are in force, the Government is satisfied that the ordinary courts and the ordinary law are sufficient to secure the effective administration of justice and the preservation of public peace and order, the Government shall make and publish a proclamation declaring that such Part or Parts of this Act shall cease to be in force, and thereupon such Part or Parts of this Act shall forthwith cease to be in force.
(5) It shall be lawful for Dáil Eireann, at any time while the Part or Parts of this Act mentioned in a proclamation made and published under sub-section (2) of this section is or are in force, to pass a resolution annulling the proclamation by virtue of which the said Part or Parts of this Act is or are in force, and thereupon such proclamation shall be annulled and the said Part or Parts of this Act shall cease to be in force, but without prejudice to the validity of anything done under the said Part or Parts of this Act after the making of such proclamation and before the passing of such resolution.
(6) A proclamation made by the Government under this section shall be published by publishing a copy thereof in the Iris Oifigiúil and may also be published in any other manner which the Government shall think proper.
(7) Parts V and VI of this Act shall come into or be in force only when as and for so long as is provided for in the said Parts of this Act.
The Minister will remember that one of the difficulties that we had was not about the principles of the Bill but about the details of the Bill. The fact is that we are here legislating for two entirely different situations: (1) what I might call the normal situation in which you may have a certain amount of political activity, or even a subterranean type of illegalities, and (2) another situation in which that becomes so menacing that special powers are required. I think that on the Second Reading of this Bill we expressed regret that the Government, to deal with what from the form of this Bill they confess to be two really different situations, found it necessary to put in a number of the provisions contained in Parts II, III and IV of this Bill, what I might call the ordinary legislation of the country. We pointed out that it would be much better if the principle of this provision only came into operation when special powers were acquired as are provided for under Parts V and VI. I was hoping, and I gathered from the Minister's statement on the Second Reading, that he was willing to transfer a number of the provisions of Parts II, III and IV to Part V. The only transference that has taken place is some clause from Part V to Parts III and IV. I am not denying the necessity for that particular transference. But we are legislating here in normal times in Parts II, III and IV and it seems to me that we are taking unnecessary powers and that it would be much better to let the ordinary criminal law operate as long as it can operate. If it cannot operate, the Government then has to take the responsibility of telling the House and the country that it cannot operate; and that that sense of responsibility on the part of the Government would be shown by issuing a proclamation bringing Part V into operation.
It can be seen from the amendments that stand in our name that we have no desire in any way to hamper the Government in coping with any dangerous situation that may arise in the country. Practically the only amendment we have down to Part V is one allowing for a reasonable appeal in the determination of the law. Any of the other amendments that stand in the names of Deputy Costello and myself are not aimed in any way at hampering the Government in dealing with a dangerous situation. If the Government which is elected to govern the country is of opinion that certain powers are necessary because certain dangerous situations have arisen, then I could not take the responsibility of denying these powers to the Government, but the Government ought to be chary in going beyond what is necessary and not make certain provisions, which stand in Parts III and IV, operations of the ordinary law. I would ask the Minister to look at it in this way—if these associations are really dangerous then the ordinary law will not operate and the ordinary courts will not operate and that is, therefore, a case when Part V would be brought into operation by the Government. On the other hand, if such a dangerous situation does not arise, it is a mistake to have in the ordinary law of the country measures that are applicable only to extraordinary circumstances. The Minister will remember that in the Second Reading debate—I doubt if he were helped by his fellow Minister's—the Minister for Finance's—interjections—I was dealing with Parts II, III and IV at the time and it was quite obvious that in the mind of at least one member of the Government there was no difference between Part V and Parts II, III and IV. Article 2A of the Constitution was brought in to deal with an amendment of the Constitution that is envisaged in Part V of this Bill. The ordinary criminal law could be allowed to run until a dangerous situation arises and then bring in Part V, by all means, and let the Government face the responsibility of bringing it in. Do not try the ordinary courts, if the ordinary courts cannot deal with the situation that may arise. That is what I suggest to the Minister. That is the purpose of this particular amendment that stands in our names.
The second paragraph shows that we are anxious to give the Government all reasonable powers to deal with any dangerous situation that may arise and that we do not intend in any way to tie their hands. Paragraph 2 provides power to cope with a situation when the ordinary administration of the law breaks down owing to certain activities and owing to the inability of the ordinary law to control that situation. The rest practically deals with ordinary machinery. We are anxious that it should not be portion of the ordinary law. At this stage in the legislative history of this country it should not be necessary to make many of the provisions in Parts II, III and IV portion of the ordinary law of this country. It would be much better to face a dangerous situation when it arose and to face it in the drastic way provided for in Part V.
I am anxious in this Bill to try to meet, as far as I can, any real objections that have been raised on the Second Reading, but I am afraid I cannot accept the amendments that the Deputies propose to Parts II, III and IV of this Bill. The offences with which those parts are concerned, whether they are offences under the statute law or otherwise, are offences peculiar to the protection of the State itself and they are offences that, I believe at any rate, whether the emergency arose or not, should be available to the State. I do not know that under the present law you could deal with a body of people who usurped the functions of Government. You might have the position here where a member of the Government was taken away forcibly or perhaps a body of people came in and occupied this House. That might come under offences of assault and trespass, but in any circumstances I do not think that is sufficient for the State. The protection which is provided in those parts is protection that has been availed of by other Governments in other countries, not only to protect themselves against external enemies, but also against internal enemies.
It is not right to say that this is analogous to Article 2A. It is, I think, rather more analogous to the Treason Act of 1925, which was a permanent measure. But what I was going to suggest to the Deputies who have put in this amendment is that perhaps they might consider withdrawing the amendment, and if they are not satisfied put it in on the Report Stage. I am prepared to make, and am making, a substantial concession, as far as I possibly can go—an almost dangerous concession. So far as the particular sections go, about which Deputies were most concerned, that is, Sections 8, 24 and 27, I am more or less accepting the principle of amendments that have been put in by the Deputies. When those things have been met I think the danger the Deputy seems to fear will have largely disappeared. But I regard Parts II, III and IV, with certain amendments that will be accepted, as necessary, not only in emergency times, but in ordinary times, for the protection of the State.
Did I understand the Minister to say that he was prepared to consider favourably some of the amendments we have put down to Section 27?
Yes, I am. If the Deputies are not satisfied they can put them in on the Report Stage.
Amendment, by leave, withdrawn.
On behalf of Deputy Norton, I move amendment No. 2:—
In page 3, line 29, after the word "name" to insert the words, "but does not include a trade union."
The Minister, no doubt, understands quite fully the meaning of the proposed amendment, and it is up to him to state quite definitely whether he intends that trades unions should be brought within the scope of this measure.
Trade unions cannot be affected unless they engage in unlawful activities. If the House were to accept this amendment, the position would be that, according to Section 15, trades unions would be quite free to engage in any unlawful activities. The amendment could not be accepted for a moment. I think it is absurd.
There is, of course, a suggestion behind what the Minister has now stated that trades unions have engaged in unlawful activities.
I made no such suggestion whatever. I said that, if the amendment was put in, the position would be that trades unions would be quite free to engage in any unlawful activities. The Deputy knows that, under the Act of 1930, it is very easy for a body to get together and call themselves a trade union. If they did that, under the amendment which it is proposed to put in, they would be free to engage in unlawful activities if they liked.
What about the registration of a trade union which was taking a line of action of that kind?
Even if they were registered, the State could not allow anybody to engage in unlawful activities.
I have listened to a good many people criticising this Bill and I have read some of the criticism put up against this Bill and the Treason Bill. It is regrettable to notice that some of the people, pretty able people, who talked about these two measures together, do not seem to understand that the contents of this particular measure, called the Offences Against the State Bill, are much more serious and dangerous to the liberty of the individual, to the right of combination, to the right of free speech, than anything that is contained in what is commonly referred to as the Treason Bill. I admit that every established State, governed under the system of Parliamentary Government, has some form of treason law, and even though there has been serious difference of opinion in this House as to the definition of treason in the discussions which went on here on the Treason Bill, at any rate, those who may come within the scope of that measure when it becomes an Act and who may be charged in the courts of this country will know at least what they are being charged with and what kind of sentence they are likely to get. This particular Bill, called the Offences Against the State Bill, is a Bill that could be understood in Germany or under any system of dictatorship prevailing to-day. The Minister, in declining to accept the very moderate amendment put forward by Deputy Professor O'Sullivan, wanted to convey by the language he used that there is in this country an organisation which has for its purpose at the moment or has decided to overthrow the established Government.
That amendment has been withdrawn by consent of the House.
No. 2 deals with trade unions. Behind the refusal of the Minister to accept this amendment in the name of Deputy Norton is the insinuation that it is possible for a large body of people to come together under the auspices of trade unionism, get registered and then engage in unlawful activities. I have been in fairly close contact with my constituency over the long period of years that I have represented that constituency in this House, and I never knew of a time in that history when there was less lawlessness and less trouble than there is to-day. I do not presume to speak for what is going on outside my constituency.
The general state of the country does not now arise.
In the opinion of the members of this Party, the Minister proposes to take powers to declare the trade unions unlawful associations and the amendment was put forward for the purpose of excluding trade unions from the scope of this Bill. If the Minister refuses to accept that amendment, I will have to ask for a division.
The Minister has got to set up such a situation here that a trade union cannot go about advocating treason any more than anybody else. That is what it proposes to do. The effect of this amendment would be that the trade unions would be quite free to advocate treason, or to advocate unlawful activities. That is the effect of the amendment and no one would accept it.
Is not the Minister aware that trade unions must be registered and if they fail to comply with the legal regulations, their registration can be withdrawn? Therefore, I do not see that it is possible for trade unions to engage in unlawful activities, and for that reason I think they should be excluded from this Bill.
Amendment put.
The Committee divided: Tá, 5; Níl, 60.
Tá
- Cogan, Patrick.
- Corish, Richard.
- Davin, William.
- Everett, James.
- Hickey, James.
Níl
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Breslin, Cormac.
- Carty, Frank.
- Childers, Erskine H.
- Cosgrave, William T.
- Crowley, Tadhg.
- Derrig, Thomas.
- De Valera, Eamon.
- Flinn, Hugo V.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Patrick J.
- Friel, John.
- Fuller, Stephen.
- Gorey, Denis J.
- Rice, Brigid M.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Gorry, Patrick J.
- Harris, Thomas.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Killilea, Mark.
- Little, Patrick J.
- Loughman, Francis.
- Lynch, James B.
- McDevitt, Henry A.
- McEllistrim, Thomas.
- Maguire, Ben.
- Morrissey, Daniel.
- Morrissey, Michael.
- Mulcahy, Richard.
- Mullen, Thomas.
- Munnelly, John.
- O'Grady, Seán.
- O'Loghlen, Peter J.
- O'Neill, Eamonn.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, John M.
- O'Sullivan, Ted.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Laurence J.
- Walsh, Richard.
- Ward, Conn.
Tellers:—Tá: Deputies Everett and Corish; Níl: Deputies Little and Smith.
Amendment declared lost.
I see that amendment No. 16 attacks the same words in much the same context as amendment No. 3. I suppose we may take the decision as covering both?
Well, we will deal with that when we come to it.
I move amendment No.3:—
In lines 37 and 38, page 3, to delete the words "or purporting or appearing otherwise to relate to or be connected with any such organisation.
The Minister will remember a point which I have often stressed—not to make an offence unless it is necessary to make an offence. Shall I give an illustration to show what I mean? Let us suppose there is an illegal association, which issues a proclamation. It is thought advisable for certain authorities in this country, say, ecclesiastical authorities, to condemn that proclamation. It publishes a protest. We will be told that legislation of this kind will not be enforced; that is the reply we generally get. But, in my reading of this definition, that would be an incriminating document. I know that is not the purpose of the Minister. I think there should be an evil intent in the publication. In the case I have mentioned, the intent is the very opposite, and still as I read the section that condemnation of an illegal document itself becomes an incriminating document, unless apparently it is done by the Government. There are other authorities in the country which might wish to condemn proclamations of that kind, even apart from the Government and apart from ecclesiastical authorities. It is highly undesirable that the document which they issue should be described as an incriminating document, although undoubtedly it is "purporting or appearing otherwise to relate to or be connected with any such organisation." As the definition stands that would seem to me inevitable.
I will accept the principle of the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 4:—
In line 4, page 4, to delete the word "rightful" and to insert in lieu thereof the word "lawful."
I accept the principle of this amendment.
Amendment, by leave, withdrawn.
Section 2 put and agreed to.
SECTION 3.
Any power conferred by this Act on an officer of the Gárda Síochána not below the rank of chief superintendent may be exercised by any superintendent of the Gárda Síochána who is authorised (either generally or in respect of any particular power or any particular case) in that behalf in writing by the Commissioner of the Gárda Síochána.
I move amendment No. 5:—
In line 28, to delete the words "either generally or."
I will accept the principle of that amendment.
Amendment, by leave, withdrawn.
Sections 3 and 4 put and agreed to.
SECTION 5.
(1) Every person who usurps or unlawfully exercises any function of government, whether by setting up, maintaining, or taking part in any way in a body of persons purporting to be a government or a legislature but not authorised in that behalf by or under the Constitution, or by setting up, maintaining, or taking part in any way in a purported court or other tribunal not authorised as aforesaid, or by forming, maintaining, or being a member of an armed force or a purported police force not so authorised, or by any other action or conduct whatsoever, shall be guilty of felony and shall be liable on conviction thereof to suffer penal servitude for a term not exceeding ten years or to imprisonment for a term not exceeding two years.
(2) Every person who shall attempt to do any thing the doing of which is a felony under the foregoing sub-section of this section or who aids or abets or conspires with another person to do or attempt to do any such thing or advocates or encourages the doing of any such thing shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.
I move amendment No. 6:
Before Section 5, page 4, but in Part I, to insert a new section as follows:—
The Treasonable Offences Act, 1925 (No. 18 of 1925), and the Public Safety (Emergency Powers) Act, 1926 (No. 42 of 1926), are hereby repealed.
I consider this is a more appropriate place to insert that new section. It is merely a re-arrangement.
Is it within the scope of the Bill? I merely put that as a point of procedure.
It is in Section 30 already.
It may be, but I suggest that it is outside the scope of the Bill as explained in the Long Title.
It was in the Bill as read a Second Time.
It is only a question of procedure. Apparently the Long Title is being amended.
Which the Deputy should take into account.
I do not think you could change the general scope of the Bill merely by changing the Long Title. It is a question of precedent really.
The House got ample notice when the other Bill was before the House.
Of course, I am not objecting. I merely draw attention to the matter.
Amendment agreed to.
I move amendment No. 7:—
In sub-section (1), line 42, to insert after the word "tribunal" the words "other than an ecclesiastical court or tribunal."
I gather the Minister may not accept this, he was so eager to state that he was not accepting parts of another amendment. I hope he will not argue that the amendment is unnecessary. Governments have held, in the history of many countries, that holding a court is usurping a function of government, and, therefore, the first line of this particular section, "who usurps or unlawfully exercises any function of government," does not, I hope, render my amendment unnecessary. Holding an ecclesiastical court has more than once, it has been contended by a Government, usurped a function of government, and in order to obviate any possibility of that kind of thing occurring here, that is the reason I put down the amendment.
The only objection I have, if it is an objection, is that by expressly excluding one you may raise a presumption that others, not specified, are not exempt. It is considered that those are protected under the Constitution. I would have no objection to the amendment except that by specifically excluding one particular court there are several others, tribunals, and it is very hard to cite now the number of innocuous lawful bodies and other bodies that carry on arbitrations.
I put down this particular one because it is the one that came first to my mind. Ecclesiastical courts are regularly called courts and are conducted as courts. There are other bodies that may hold what is practically a court, to know whether a member shall be any longer a member of the organisation. Various arbitration courts can be described as courts. That is all the more reason for getting a wider definition, if the Minister could get one. I do not like even nominally to have a court called an ecclesiastical court, being described as illegal, actually against the law, though the law may be so administered that it will never be called in question. I wonder could the Minister embrace these other courts, get a general phrase covering them all? I quite admit my amendment is a bit too narrow and it has the objection to which the Minister has given expression; but I suggest that between now and the Report Stage he might be able to get some phrase which would cover, in general, any kind of court that is held by any of those bodies that are quite innocuous from the point of view of the State.
That is the only objection I have, the difficulty of specifying one.
Surely the Minister will realise that the purpose of the amendment, although it is confined to one particular kind of court or tribunal, is to indicate that underlying this section and its ordinary construction there is a danger that certain courts that the Minister does not want brought within the scope of this section may be brought in by some other persons without the Minister's desire or approval. I think it would be possible for the Minister's, or the Parliamentary draftsman's, ingenuity to get a phrase which will cover all types of courts or tribunals which are not strictly within the Constitution but which are courts and which, in the ordinary language of the people, are regarded as courts. It should not be difficult for the Parliamentary draftsman to get a phrase to cover the type of court that this amendment proposes to embrace.
If courts are recognised by the ordinary law, surely they are protected under the Constitution?
That is very doubtful, because the Constitution provides for the administration of public justice in the courts established under the Constitution and then it proceeds to enact a variety of courts, the Supreme Court, the High Court, the Circuit Courts, the ordinary machinery of justice as we know it. In Article 37 it provides that nothing in the Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature other than criminal matters by certain types of tribunal. I think it is very arguable that nothing that is not comprised within Articles 34 and 37 of the Constitution would be caught under this particular section as it stands. Article 37 is very limited in its scope and the section as it is drafted deals with courts established by or under the Constitution. The only courts allowed under the Constitution are the courts of justice as we know them, courts exercising limited functions of a judicial nature. Ecclesiastical courts do not exercise limited functions; they have very wide functions.
I will have the matter further examined between this and the Report Stage.
For instance, matrimonial cases come before the courts and they also come before the Ecclesiastical Court and it is a court in every sense of the word. There is no disguising the fact that it is a court and the claim is made that it is a court. The whole procedure is strictly the procedure of a court at every stage of the proceedings. I am anxious that we should legislate to make such an exercise of ecclesiastical functions not even nominally illegal, but if the Minister promises to try to get a definition, I will be satisfied.
Amendment No. 7, by leave, withdrawn.
On behalf of Deputy Keyes, I move amendment No. 8:
In page 4, at the end of the section, to insert the following new sub-section:—
(3) Nothing contained in either of the two preceding sub-sections of this section shall be so construed as to make unlawful the setting up, maintaining or taking part in a court or tribunal to inquire into any dispute or any matter likely to lead to a dispute which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour of any person and this Act shall be construed and have effect accordingly.
Section 5 deals with the usurpation of the functions of government and it is not quite clear that even courts set up as arbitration courts in connection with industrial disputes are immune from the provisions of this section. The purpose of the amendment is to add this new sub-section. I think the need is all the greater considering that the Minister has refused to include the amendment with reference to trade unions. In those industrial courts the work done with regard to the prevention of disputes is of such a character that they are absolutely necessary for the life of the trade union movement. I am sure the Minister will have no hesitation in accepting the amendment.
There can be no confusion as to what I have rejected with regard to the trade unions. I said, and I repeat it, that this was to deprive trade unions of the right, like any other citizen, to engage in unlawful activities or to prevent them advocating treason. They are not above the law any more than anybody else. The only objection I have to this is that I think it is unnecessary. It is somewhat analogous to the amendment that I promised to reconsider which was moved by Deputy O'Sullivan. It is not the intention by this Bill in any way to interfere with these courts or any other courts or committees that are not only doing very useful but praise worthy work. All I can say is that I will have the matter re-examined, and if I can get some sort of analogous clause which would cover this, just as it would cover the ecclesiastical court referred to by Deputy O'Sullivan, I will reconsider it between this and the Report Stage.
I see that. But I want to point out that it is not the intention of the Minister but what is in the Bill as passed by the Dáil that will be interpreted by the courts. Therefore, we want to put in this new sub-section to safeguard them.
I am not prepared to accept the amendment now.
The Minister will look into it?
I will reconsider it between now and the Report Stage.
Amendment, by leave, withdrawn.
Section 5 put and agreed to.
SECTION 6.
(1) Every person who prevents or obstructs, or attempts or is concerned in an attempt to prevent or obstruct, by force of arms or other violent means or by any other form of intimidation the carrying on of the government of the State or any branch (whether legislative, judicial or executive) of the government of the State or the exercise or performance by any member of the Legislature, the judiciary, or the executive or by any officer employee (whether civil (including police) or military) of the State of any of his functions, powers, or duties shall be guilty of felony and shall be liable on conviction thereof to suffer penal servitude for a term not exceeding seven years or to imprisonment for a term not exceeding two years.
I move amendment No. 9:—
In sub-section (1), line 3, to delete the words "or by any other form of intimidation."
Amendments Nos. 9 and 10 should be considered together.
Yes, they are practically the same. I do not know exactly what the Minister has in mind. Severe criticism might be looked upon by many as a form of intimidation. The Minister has already excluded by the preceding words ordinary intimidation; that is, violence and so on. Then we come to the words, "or by any other form of intimidation." Reading the section over, it struck me that quite a large number of people regard mass criticism or strong criticism really as intimidation. I do not know what else the words would cover except something of that kind. The use of force or violence is already provided for, and something else, I take it, is meant by the words "any other form of intimidation." The only thing that came into my mind when reading the section was very severe criticism or criticism by a very large number of people being brought to bear upon the people in question. Perhaps the Minister will indicate what he has in mind.
As the Deputy knows, the commonest form of intimidation is by words or writing, threatening letters, etc., and that is one of the things we have in mind in connection with these words "or by any other form of intimidation". That is what it is supposed to cover.
Is the Minister fully satisfied that it does cover that particular type of pressure, shall we say? The purpose that appeared to me in putting down the amendment was to ascertain what precisely the Minister had in view when he used the word "intimidation". The word "intimidation" has no technical meaning. I think the Minister fully realises that. It is a popularly used expression in the country, dating I think from the coercion days. Intimidation was an offence really created by the coercion Acts, but has no legal significance. So that when you put down in a new section, creating an entirely new offence, a word which has really no technical meaning, I do not know where that is going to lead. Personally, I think it will lead anybody who is prosecuting under this section nowhere. But that is a matter for the Minister. What I want to find out is whether the Minister adverted to the fact that intimidation is not a legal phrase and really means nothing very much at all. In any event, it would be construed ejustem generis with the two phrases immediately preceding it.
When we are speaking of threatening letters and written criticism, is it desirable to bring that in and make it an offence? Letters threatening violence can be provided for. Surely if the section as is stands covers written criticism, it is not desirable that that should be made a criminal offence. If a person has a grievance, let him bring a civil action. Why should it be a criminal offence?
It is intended to cover threatening letters or uttering words. Criticism could not be construed as intimidation. But, if by words or writing, violent means are advocated, that is the purpose we have in mind in this particular section.
I have no objection to that if what is meant is merely writing to threaten violence.
I am afraid, and I think the Minister's first reply will bear me out that it covers more than that. It covers strong criticism where there is no suggestion of violence. However, it may be that my contention is ruled out by the previous words. But as it stands, to the ordinary layman it does look like that, especially, as Deputy Costello stated, as the word "intimidation" has no technical meaning so far as the law is concerned.
If the Deputy wishes, I shall have it further examined. That is not the intention.
Amendment, by leave, withdrawn.
Section 6 put and agreed to.
SECTION 7.
Amendment No. 10 not moved.
Section 7 agreed to.
SECTION 8.
(1) Every person who shall commit any act of violence against or of interference with a member of a lawfully established military or police force (whether such member is or is not on duty) or shall take away, injure, or otherwise interfere with the arms or equipment, or any part of the arms of equipment, of any such member shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.
(2) Every person who shall incite or encourage any person employed in any capacity by the State to refuse, neglect, or omit to perform his duty or shall incite or encourage any person so employed to be negligent or insubordinate in the performance of his duty shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.
(3) Every person who attempts to do any thing the doing of which is a misdemeanour under either of the foregoing sub-sections of this section or who aids or abets or conspires with another person to do or attempt to do any such thing or advocates or encourages the doing of any such thing shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding 12 months.
I have down amendment No. 11 which reads:
In sub-section (1), after the word "who", line 33, to insert the words "with a view to undermining public order or the authority of the State".
I notice the Minister has amendment No. 13 which is dealing with the next sub-section. The section says:
"every person who shall commit any act of violence... against or of interference with a member of a lawfully-established military or police force",
and so on. Take, for instance, a member of the police force not on duty. He goes into a public-house and has a row with a man. Is that man guilty of an offence under the sub-section? I admit that in the case of an ordinary Gárda it would not happen because he would not be found in a public-house, but if he did happen to be in a public-house or say a member of a military body happened to be there?
I am prepared to accept the principle of amendment No. 11.
Amendment, by leave, withdrawn.
Amendments Nos. 12 and 13 may be discussed together as they are alternatives.
I move amendment No. 12:—
In page 5, to delete sub-section (2).
We are of opinion that this would have the effect of preventing a trade union official having a conversation with people, say, in the forestry department or in a drainage scheme under the Board of Works. He might be prevented from giving these people advice or having any conversation with such people. That may be the position of a trade union official. What is the Minister's attitude on that matter? Perhaps he might be prepared to accept amendment No. 14. I think he is safeguarded there by the references to the provisions of the Trade Union Acts, 1871 to 1935.
The position is as stated by the Minister for Finance on a former occasion and the same views are accepted by the present Minister for Finance. There is no desire to interfere with the people mentioned by the Labour Deputies, that is, casual workers employed on relief schemes. What cannot be admitted by any man at the head of the Civil Service is that you cannot allow an essential service in the Civil Service to engage in any activity that would undermine or dislocate an essential service. That is the principle that is accepted. With regard to the amendment put down by Deputy Corish, I would like to say that I regard the section as it stands as too wide. After consultation with the Department of Finance, I will move in amendment No. 13 to limit the scope of the section. That is as far as I can go to meet Deputy Corish. There is no intention whatever to interfere with people engaged on relief work and those other schemes in cases where members of a trade union party have got employment on these schemes. They may want to operate under better pay or better conditions. After consultation with the Department of Finance, the farthest I can go is to move amendment No. 13 that I have here.
"In a manner calculated to dislocate the public service..."
Who is to determine that? The Minister in the course of his statement spoke of his intention and the intention of the Minister for Finance. But there may be different people interpreting this Bill when it becomes an Act. I suggest to the Minister that the words used in the amendment submitted by Deputy Norton, if he does not care to accept amendment No. 12, would safeguard everybody. It would ease the situation so far as perturbation is felt in the trade union world at the moment so far as this Bill is concerned. I do not think the Minister would be giving away too much at all in accepting that amendment.
I want to make clear what is the Minister's line of thought. The Minister or the Minister for Finance is to operate the interpretation of this section as to the attitude civil servants may or may not take in such activities—activities that would be quite lawful if indulged in by ordinary trade unions——
Certain activities may be indulged in by trade unionists as regards the ordinary employment that might not be an offence. Would the Minister hold that a similar action taken by civil servants might under this section be an offence?
I am not the Minister who is responsible for interpreting that or for the action that might be taken and I could not give an interpretation. What I am aiming at here is to try to limit the scope of the dislocation of an essential public service.
That is a peculiar attitude. We are asked to pass certain legislation. The Minister says his intentions are so-and-so, and when pressed by Deputy O'Sullivan he tells us that it is another Minister's intentions that will count. I would urge the necessity of accepting this amendment which would clarify the situation. After all, trade union law is the law of the land for a number of years and I submit that inside that law there would be no offence committed.
Undoubtedly under trade union law it is possible to do a certain number of things that may dislocate business. Therefore, the Minister's amendment does not quite meet my point. If a Civil Service body engaged in similar activities quite analogous to what a trade union may do is there not a danger that it would be made an offence under this particular Bill? What does the section mean in the precise case I put before the Minister?
Supposing for the sake of argument there was a strike to-morrow in the Forestry Department where there might be only temporary employees. Would it be open to one particular person out of 30 or 40 to take action against a trade union official who was responsible for the withdrawal of labour in accordance with the majority vote of the people concerned? I submit that, as it stands, is leaving a trade union official open to an action by one particular person out of 40. That is why we are asking the Minister to accept the amendment put down by Deputies Norton and Davin; that amendment should get more consideration.
I do not want to go into the example that is given; I do not know how far that would go, but surely dislocation of the public service would be limiting the scope of this section very much?
It would be according to what interpretation would be put on that. We have no desire to dislocate the public service, I can assure you.
I quite understand that. The section has been limited by the amendment put in.
It is rather ambiguous, if I may say so.
Amendment No. 12 withdrawn.
Amendment No. 13:—
In sub-section (2), page 5, line 42, after the word "omit" to insert in brackets the words "(in a manner or to an extent calculated to dislocate the public service or a branch thereof)," and, in line 55, after the word "insubordinate" to insert in brackets the words "(in such manner or to such extent as aforesaid)."—(Mr. Ruttledge.)
Agreed to.
I move amendment No. 14:—
At the end of sub-section (2), in page 5, to insert the following proviso:
Provided that nothing contained in this sub-section shall operate or have effect so as to make unlawful the doing of any act which by virtue of the provisions of the Trade Union Acts, 1871 to 1935 was not unlawful at the passing of this Act."
Amendment put.
The Committee divided: Tár 8; Níl, 53.
Tá
|
Cogan, Patrick.Corish, Richard.Davin, William.Everett, James.
|
Hickey, James.Hurley, Jeremiah.Murphy, Timothy J.Pattison, James P.
|
Níl
|
Aiken, Frank.Allen, Denis.Bartley, Gerald.Beegan, Patrick.Boland, Gerald.Bourke, Dan.Brady, Brian.Brady, Seán.Breathnach, Cormac.Breen, Daniel.Breslin, Cormac.Carty, Frank.Childers, Erskine H.Crowley, Tadhg.Derrig, Thomas.Flynn, John.Flynn, Stephen.Fogarty, Patrick J.Friel, John.Fuller, Stephen.
O'Sullivan, Ted.Rice, Brigid M.Ruttledge, Patrick J.Ryan, James.Ryan, Martin.Ryan, Robert.Sheridan, Michael.
|
Gorry, Patrick J.Harris, Thomas.Humphreys, Francis.Kelly, James P.Kelly, Thomas.Kennedy, Michael J.Killilea, Mark.Little, Patrick J.Loughman, Francis.Lynch, James B.McDevitt, Henry A.McEllistrim, Thomas.Maguire, Ben.Morrissey, Michael.Mullen, Thomas.Munnelly, John.O'Grady, Seán.O'Loghlen, Peter J.O'Reilly, Matthew.O'Rourke, Daniel.
Smith, Patrick.Traynor, Oscar.Victory, James.Walsh, Laurence J.Walsh, Richard.Ward, Conn.
|
Tellers:—Tá: Deputies Everett and Corish; Níl: Deputies Little and Smith.
Amendment declared lost.
Section 8, as amended, agreed to.
SECTION 9.
(1) It shall not be lawful to set up in type, print, publish, send through the post, distribute, sell, or offer for sale any document—
(a) which is issued or published or purports or appears to be issued or published by or on behalf of or for the purpose of supporting, aiding, abetting, or encouraging an unlawful association or purports or appears otherwise to relate to or be connected with an unlawful organisation or to promote the formation of an unlawful organisation, or
(b) which is or contains or includes a treasonable document, or
(c) which is or contains or includes a seditious document.
(4) Every person who has in his possession a document which was printed or published in contravention of this section or a newspaper or other periodical publication containing a letter, article, or other communication published therein in contravention of this section shall, when so requested by a member of the Gárda Síochána, deliver up to such member every copy in his possession of such document or of such newspaper or publication (as the case may be), and if he fails or refuses so to do he shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding three months.
(5) On the conviction of a person found guilty of an offence under any sub-section of this section, every copy of the document in respect of which such offence was committed shall be forfeited and, where the act constituting the offence is the setting up in type or the printing of a document in contravention of this section, all printing machinery in the possession of such person shall also be forfeited.
(6) Nothing in this section shall render unlawful the setting up in type, printing, publishing, sending through the post, distributing, selling, offering for sale, or having possession of a document or a copy of a document which is published at the request or by permission of the Government or is published in the course or as part of a fair report of the proceedings in either House of the Oireachtas or in a court of justice or before any other court or tribunal lawfully exercising criminal jurisdiction.
I move amendment No. 15:—
In sub-section (1), line 55, after the word "lawful," to insert the word "knowingly."
Deputies might also consider amendments No. 23 and 25 in connection with this.
I cannot accept amendment No. 15. If I did it would be impossible to prove.
Is that so? Technically it would be out of the question if the onus is not thrown on the defendant.
Amendment No. 15, by leave, withdrawn.
I move amendment No. 16:—
In sub-section (1) (a), lines 2/4, page 6, to delete all words from and including the words "or purports" line 2, to and including the word "organisation," line 4.
Amendment No. 16, by leave, withdrawn.
I move amendments Nos. 17 and 18:—
In sub-section (1) (b), line 6, to delete the words "or contains or includes."
In sub-section (1) (c), line 8, to delete the words "or contains or includes."
One decision will cover both.
I mentioned a while ago as an illustration here that certain people may want to condemn a treasonable document. The condemnation may contain the treasonable document and, therefore, itself come under this prohibition. That is the reason I put the amendment in. I think if you exclude the words "or contains or includes"—if they are excised from the sub-section "that which is a treasonable document" would cover the purpose the Minister has in view; but as the section stands undoubtedly it would, for instance, prohibit the publication of a pastoral which condemned a certain document.
I am afraid it is not practicable to meet this. We had this examined and cannot allow newspapers to contain treasonable documents. We are satisfied that it is absolutely necessary.
Under the law as it stands undoubtedly a printer who prints a pastoral that condemns a seditious document commits an offence and is acting illegally. I see the Minister's difficulty and may mention the case of a well-known philosophical work—Spinoza's Ethics—that was supposed not to be printed. What the danger was I need not now say, for very, very few would read it. But one publisher got over the difficulty by printing the book and then publishing at the end a page of confutations of the errors that it contained. I know this is what the Minister has in mind and I see his difficulty, but I do not want people doing their ordinary duty to have to make the choice of dropping their ordinary duty or else committing an offence. I have given one case as being most striking, but other people might want to condemn documents of that kind, and so to circulate them for the purpose of condemnation, and unless they cannot do that they cannot get it set up in print. A Bishop's pastoral of the kind I have mentioned cannot be set up in print if the law is allowed to stand as it is in this section at the present moment.
We will have another try at it, but I do not think we will be able to do anything.
We will have an opportunity of putting it in again. I would like to have the Minister's amendments in such time as would allow us to consider them with a view to putting in amendments if necessary.
Amendments Nos. 17 and 18, by leave, withdrawn.
I move amendment No. 19:—
In sub-section (4), line 25, after the word "has" to insert the word "unlawfully."
Amendment No. 19, by leave, withdrawn.
I move amendment No. 20:—
In sub-section (5) to delete all words after the word "forfeited," line 38, to the end of the sub-section and to insert in lieu thereof the words "if the court so orders."
Is not the provision for the confiscation of the whole printing plant unduly drastic? We did not confine ourselves merely to deleting the words to which we objected. We want particularly to meet the Minister and to allow some initiative or discretion to the court. In the sub-section as it now stands there is no discretion whatever left to the court, and the whole newspaper plant may be confiscated and the newspaper put out of publication. If it happens to print a seditious document, and if it cannot prove its innocence in printing it, then it is out of business. It is a very dangerous power to have with the Minister, so far as the Press is concerned, and I would ask him to accept the amendment we have down. My own feeling is that possibly our amendment goes too far, so far as the powers given to the Minister are concerned, because in the ordinary way it is undoubtedly a drastic penalty to have. Perhaps the Minister might prefer to delete it altogether.
My Department has met the Newspaper Managers' Association too, and this matter has been discussed with them. We have an amendment which we could not get in on this stage, but we will have it for the Report Stage, which will leave it to the discretion of the courts to confiscate the whole or any part of the machinery. I accept the principle of what the Deputy moves, but the Deputy's amendment goes too far.
Is it really worth while having such a drastic power in this case? Remember now, this is under the ordinary law in ordinary times. Seeing that there is a very big principle involved—or may be involved—namely, the freedom of the Press, would it not be better to delete the lines altogether, and to put some other penalty in? To put a newspaper out of business is a terribly drastic thing. If I may put it this way, I think you are interfering with the spirit of the Constitution in claiming power of that kind. I think the Minister might be better advised if he struck out the lines altogether, and put in some other penalty.
There might be a particular Press that you had to deal with.
Yes, but I think you are running a bigger danger —I am expressing my own private opinion now—if, in order to get at one little newspaper, you put in a provision of this kind. I think there is a bigger danger to public policy involved in that than there would be if you simply put in a fine. After all, if it is a little newspaper that is causing trouble, a fine will be a pretty strong deterrent. I think it would be much better if the Minister would think over that. Leaving aside both his own amendment and my amendment, from the point of view of the general policy of freedom of the Press I think it would be much better to put in a penalty than to have this right of confiscation here. Then the court will have the option of grading that particular penalty.
This is giving discretion to the court.
I do not like interfering with the machinery. It would be better to have a fair penalty, and let the court have discretion.
I will consider the matter between this and the Report Stage, and if that is not thought desirable I will put in the amendment I have drafted.
Amendment, by leave, withdrawn.
I move amendment No. 21:—
In sub-section (6), line 48, after the word "report" to insert the words "of a public meeting or".
Again, it is really a question of balancing evils. I presume that is the attitude of the Minister. Again I want to point out to the Minister that I am dealing with ordinary times. That is the principal aspect of the case I am dealing with— not with troubled times where Part V of the Bill is to come in. There may be other legislation necessary or an amendment of Part V so far as that is concerned; it may be well possibly to transfer a certain portion of this business to Part V. In the case of the ordinary public meeting, would it not be better to run the risk of publishing it, even from the point of view of the Government? It might be well to know what certain persons are saying or thinking. If they say it out openly, very often it is safer from the Government point of view than if they are whispering it amongst themselves. It is a question of the balancing of evils, and my own feeling always runs in favour of not interfering unduly with expression of opinion unless it is absolutely necessary. As I say, we are dealing with normal times, not with the abnormal situation contemplated in Part V. That is the reason I would ask the Minister to consider this amendment about public meetings. Again, you are throwing a very grave responsibility on the newspapers—to know what they will report from a public meeting. They will have to watch their step the whole time, and they will possibly find it much safer not to report certain types of public meetings at all. That in itself will probably lead to the creation of an illegal Press, circulating in an illegal way, which the Minister may not find it so easy to control as he would find it to deal with ordinary publications in the newspapers.
I do not want to interfere in any way, if we can avoid it, with the freedom of the Press, but again writing and speaking are two of the most dangerous methods of inciting to violence and things of that sort. If we do not take some precautions, such as we are taking in this Bill, I am afraid there is no other way in which we can deal with it. I have considered the matter from the point of view of two evils, and I think that retaining the provision here is the better of the two.
There are just one or two observations which I should like to make on this amendment. I did not quite catch the Minister's phrase as to whether or not he is going to consider this amendment.
He said one of the most dangerous ways of inciting feeling is by spoken words. This sub-section allows the report of utterances in this Assembly. I can conceive that in this Assembly on matters relating to unlawful organisations there will be statements made of a violently inflammatory nature which will be published in the newspapers from time to time, and which if issuing from the mouths of people outside would certainly bring them within the scope even of the ordinary law before this Bill becomes law, so that if the Minister is thinking of not allowing a report of a public meeting in a newspaper I should like to direct his attention to the fact that under this Bill power is being taken to prohibit the holding of public meetings of the particular type that is envisaged in the Bill. Now, if a public meeting is held, and allowed to be held by the Government in pursuance of the powers which they will obtain presumably under this Bill, surely it would be right and lawful that a newspaper should report those proceedings, and should not have to be set up as adjudicators of what is right and what is wrong at a lawful public meeting. If the public meeting is allowed, and is lawful, then I think the newspapers ought to be allowed to publish it within reasonably fair limits. Mostly I think we can say that even under the law as it stands at the moment the newspapers are exercising considerable discretion in what they will and what they will not report of inflammatory speeches. That matter has worked fairly well up to date, and I think it could be allowed to the newspapers to exercise that same discretion in reference to a report of a public meeting which has been allowed to be held notwithstanding the drastic powers which the Government will have after this Bill becomes law.
Amendment No. 21, by leave, withdrawn.
I am accepting amendment No. 22:—
In sub-section (6), line 50, to delete the word "criminal."
I think amendment No. 23 is consequential on an amendment that has been accepted already.
I do not think any amendment has been formally accepted, although the spirit of the different amendments has been accepted.
The last amendment, No. 22, has been accepted.
Subject to the approval of the draftsman. I think, however, the last amendment could be accepted without any alteration.
SECTION 10.
(1) It shall not be lawful for any person to have any treasonable document, seditious document, or incriminating document in his possession or on any lands or premises owned or occupied by him or under his control.
(2) Every person who has a treasonable document, seditious document, or incriminating document in his possession or on any lands or premises owned or occupied by him or under his control shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding £50 or, at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment.
(3) Where a person is charged with an offence under this section, it shall be a good defence to such charge for such person to prove—
(a) that he is an officer of the State and had possession or custody of the document in respect of which the offence is alleged to have been committed in the course of his duties as such officer, or
(b) that he did not know that the said document was in his possession or on any lands or premises owned or occupied by him or under his control, or
(c) that he did not know the nature or contents of the said document.
(4) Every person who has in his possession a treasonable document, seditious document, or incriminating document shall, when so requested by a member of the Gárda Síochána, deliver up to such member the said document and every copy thereof in his possession, and if he fails or refuses so to do he shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding three months.
Amendment No. 23 not moved.
I am not accepting amendment No. 24.
Amendment No. 24 reads:—
In sub-section (1), lines 53 and 54, to delete all words from and including the words "or on", line 53, to and including the word "him" in line 54.
If that amendment were accepted, nobody would keep documents in his possession. It would be very difficult to prove, if documents were found on a person's premises, that they were in his control.
It is really a question of the onus of proof, whether he had knowledge that the documents were there or not. For instance, if a person has a farm of 100 acres, and if a document was found on that farm, it is rather hard that he has to prove that he did not know it was there. It is practically impossible. On another amendment, which we did not press, the Minister pointed out the difficulty of proving that the person knew it. I suggest it is more difficult to prove that you did not know it. If a document is found on a farm a quarter of a mile away from the house, you are held responsible unless you can prove the opposite, and I suggest that it is practically impossible for you to do that.
They may get the document very much closer to his premises.
Unless a man can prove that he did not know it was there, he is regarded as guilty. It is almost impossible for him to prove that.
I imagine that it is a good defence.
He has to prove he had not guilty knowledge.
The onus is on him, but surely it is a good defence?
The Minister refused to accept an amendment to the effect that the offence shall consist of knowingly doing the matters in the section, on the ground that it would be impossible for the State to prove that a person knowingly had these documents. The Minister declined our amendment because he found himself unable to prove a positive. He is now imposing on the ordinary citizen the duty of proving a negative and that is notoriously more difficult than the duty of proving a positive. The Minister said that it would be a good defence if a person did not know this incriminating matter was on his property. Theoretically that is so, but I remember in the pre-Treaty days I was given the job of defending a farmer in the country before a British courtmartial. The charge against him was that some of the I.R.A. authorities of that time had brought a certain person to what was then euphemistically known as an unknown destination. The I.R.A. authorities had selected as the unknown destination an outhouse on my client's farm and they had dumped the prisoner in this outhouse entirely, as we alleged —and it was quite true—without the farmer's knowledge.
The fact was that the gentleman in the custody of the I.R.A. was put in the outhouse, was incareerated there, and the British authorities arrested the farmer and tried him in Wellington Barracks. Notwithstanding my very able defence, the court convicted my client, although we had not the remotest idea that the gentleman was in the outhouse during the course of his incarceration. We gave the most convincing evidence that the farmer did not know the prisoner was there, yet the farmer was convicted. I suggest that is what is going to happen here. If incriminating documents are found in my premises nothing that I can say will convince the court that I did not know they were there. It is going to put a tremendous onus on people of disproving this particular offence, which is a serious offence.
If our amendment were accepted it would meet the situation very fully. If you have documents in your possession in certain circumstances, it is easy for a court to assume that you knew they were there; but it would be difficult for you to prove that you did not know they were there even if you were really not aware of it. It is quite possible that they could be dumped without your knowledge by persons who wished to put you, as the Americans say, on the spot.
Sub-section (3) sets out that where a person is charged under this section it shall be a good defence to prove that he is an officer of the State, that he did not know that the document was in his possession, that he did not know it was on any lands or premises owned or occupied by him, or that he did not know its nature or contents. The onus must be put on the individual.
The onus is put on him of proving a negative, that he did not know, whereas the State cannot prove a positive. It is notorious that whereas it may be easy to prove a positive, it is almost impossible to prove a negative. In this sub-section the Minister proposes to give a defence to a person which is almost useless to him in 99¾ cases out of 100. If a person dumps incriminating documents in my house and I am caught, nobody will believe me that I did not know they were there and yet I would be as innocent as my client in Wellington Barracks years ago.
There are numbers of cases in certain parts of the country, illicit distillation cases, and if the things used in the making of illicit spirits are found on your land, you have to prove that you did not know they were there.
I suggest that it is very difficult to prove that you did not know the documents were on your premises or on your land. It is difficult to make people believe that.
Question put: "That the words proposed to be deleted, stand."
The Committee divided: Tá, 54; Níl, 29.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breslin, Cormac.
- Carty, Frank.
- Childers, Erskine H.
- Crowley, Fred Hugh.
- Crowley, Tadhg.
- Derrig, Thomas.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Patrick J.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- Harris, Thomas.
- Hogan, Daniel.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Killilea, Mark.
- Little, Patrick J.
- Loughman, Francis.
- Lynch, James B.
- McDevitt, Henry A.
- McEllistrim, Thomas.
- Maguire, Ben.
- Moore, Séamus.
- Morrissey, Michael.
- Mullen, Thomas.
- Munnelly, John.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Loghlen, Peter J.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Rice, Brigid M.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Laurence J.
- Ward, Conn.
Níl
- Bennett, George C.
- Benson, Ernest E.
- Brennan, Michael.
- Cogan, Patrick.
- Corish, Richard.
- Cosgrave, William T.
- Costello, John A.
- Curran, Richard.
- Davin, William.
- Dillon, James M.
- Dockrell, Henry M.
- Doyle, Peadar S.
- Esmonde, John L.
- Giles, Patrick.
- Gorey, Denis J.
- Hickey, James.
- Hughes, James.
- Hurley, Jeremiah.
- Keating, John.
- McGovern, Patrick.
- Mongan, Joseph W.
- Morrissey, Daniel.
- Mulcahy, Richard.
- Murphy, Timothy J.
- Nally, Martin.
- O'Sullivan, John M.
- Pattison, James P.
- Reynolds, Mary.
- Ryan, Jeremiah.
Tellers: Tá, Deputies Little and Smith; Níl, Deputies Doyle and Bennett.
Question declared carried.
Amendment No. 25 is governed by a previous decision. It reads:—
In sub-section (2), line 25, after the word "who" to insert the word "knowingly."
Amendment not moved.
Amendment No. 26 is governed by amendment No. 24. Amendment No. 27, of course, is not moved because that was consequential on our other amendments being accepted and they were not.
Amendments 26 and 27 not moved.
Amendment No. 28 is governed by a previous decision.
Amendment not moved.
SECTION 11.
(1) The Government may, whenever it so thinks proper, make by order regulations for all or any of the following purposes, that is to say:—
(a) requiring printers and publishers to keep registers or other records of the documents printed or published by them and providing for the inspection by members of the Gárda Síochána of such registers and records;
(b) requiring the exhibition on all printed matter of the place at which such matter was printed, the name and address of the printer by whom it was printed, and the name and address of the person for whom or on whose instructions it was printed;
(c) providing for matters incidental or ancillary to all or any of the matters aforesaid.
(2) Every person who contravenes (whether by act or omission) a regulation made under this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £50 or, at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment or to such lesser punishment as may be prescribed by such regulation.
(3) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if either such House shall, within the next 20 days on which it has sat after such regulation is laid before it, pass a resolution annulling such regulation, such regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
I will not move amendment No. 29. There is possibly some conflict between it and the provisions of the Constitution, though I would be prepared to argue that there is not.
Amendment No. 29 not moved.
Amendment No. 30 reads:
In sub-section (1), (a), line 23, to insert after the word "requiring" the word "all."
Is there any objection to have your regulation to apply to everybody?
There is an objection to it. When the Deputy will be dealing with the next amendment I will point out that what the newspapers want is discrimination. They want newspapers to be excluded. I had not an opportunity of fully considering whether I would bring in something on the Report Stage.
Amendments Nos. 30 and 31 should have been taken together.
Yes. The Minister was referring to newspapers. Amendment No. 31 reads:
Before sub-section (2) to insert a new sub-section as follows.—
Any regulation made under the preceding sub-section of this section shall if applied to newspapers be applied to all newspapers without exception.
There was a governing practice that would have to exclude it.
It is an inconvenience to everybody, but in order to secure absolutely even-handed administration of a section of this kind, a slight inconvenience or a grave inconvenience, whichever it may be, should be borne by Government people as well as others. If this is useful, and if we should say that everybody is to get a fair deal, then the inconvenience caused to a couple of Government institutions is nothing compared to the advantage of having everything above board. I do not like the policy of discrimination—I do not think that the Government should take up a certain number of printers, put them to heavy expenses and leave others off. I do not know if the Minister had the good fortune to be here when his colleague, the Minister for Finance, was performing on one occasion and if he heard his references to certain newspapers. The language used would make people uneasy as to how certain laws might be administered. Why should not the Government printers go to the trouble of keeping records the same as everybody else? They are much better able to do it than others.
It might comfort the Minister to know that in the section as it stands the only power given to the Minister is to make regulations to apply to all printers. He has not the power to discriminate. That is why we should pass the amendment. We are satisfied that the Minister cannot discriminate between printers, so his excuse is of no validity whatever.
I do not feel very strongly about this amendment one way or another. If I were to take the amendments Nos. 30 and 31 the point is that the newspapers themselves do want discrimination. I have undertaken to consider that matter before the Report Stage.
Is the Minister dealing with amendment No. 31 now? Surely we do not know what the newspapers want.
The Deputy wants to be confined to amendment No. 30?
I do not mind taking amendments Nos. 30 and 31 together. They are distinct amendments. No section of the Press ever came near us and we do not know what any section of the Press wants.
I gathered from Deputy O'Sullivan that what he was afraid of was that the Government was going to discriminate between one printer and another. I think, and I am not meaning to be offensive, that that is really a contemptible argument in this way. I hope the Deputy will not take me wrongly.
If the Government is going to act in a corrupt way then that Government should not be given any powers by this House. To make the suggestion that unless you tie up the Government in a particular way, so as not to be able to use their powers in a corrupt way is to me a strange suggestion. Such a Government should not be given any powers. If a Government are going to be tied up in such a way that unless you tie them up in that particular way, they are to operate the powers in a corrupt way, then they should not be given any such powers. In connection with this amendment and the succeeding one I may say that I am prepared to consider this matter again and see is there any necessity. I know the views of the people concerned. I undertake to look again at the section and I will consider the point raised also.
As regards the points raised by the Minister it is not a question of accusing the Government of administering their powers corruptly. It is only the belief that the Government are human beings with prejudices—people can quite honestly do the most wrong things. Ordinary men are quite capable of doing that. That is precisely why you have to have a law and why you have to have an impartial person because the ordinary man cannot act objectively fairly, however much he may like to do so, where his own prejudices are concerned. It is not a question of his being corrupt. It is a question of his not being omniscient and not being above the ordinary frailties of human nature. If the Minister takes up the line that because men occupy the Front Bench they are, therefore, rid of all human weaknesses, high as may be the respect we all have for Ministers, I cannot accept that.
As regards not trusting Governments in power, it is the business of the House to see that the Government does not get any more power than is necessary and, if the Minister's argument is valid, namely, that because a Government is elected, then all the House need to do is to say, "Take any powers you like and we will pass an Act giving you general powers; do what you like because you have been elected and will not do anything wrong," that would be reducing legislature to a farce. I hope the Minister will not misunderstand any of the words I have used in answer to his particular arguments, but they are completely unsound in regard to the point I am making. That, of course, is only as regards amendment No. 30.
Amendment No. 30, by leave, withdrawn.
In regard to amendment No. 31, I do not quite know from the Minister what precisely is wanted. I do not know from what the Minister has said up to the present what the Press wants and why they want this discrimination. I do not know what body precisely it was that made the representations to the Minister. I am really anxious that the Press should be treated absolutely fairly so far as the law is concerned. That is all I was arguing about, but I do not know what the arguments put forward to the Minister were or who put them forward and what precisely they want and why they want them.
What that body wanted was that the reputable newspapers should be excluded from the operations and the effects of this section.
Yes; that reputable newspapers should be excluded. Some representations were made to me, but I had not an opportunity until the other day of going into what the effect of that would be. The newspapers feel that these sections are directed against a particular section of the Press that may be in existence at any time being used for the particular purpose of inciting to violence and developing along lines that would lead to "trouble," as it is called in this country. They desired that reputable newspapers should be excluded from this provision. I do not know whether that is practicable or not at the moment, but I have undertaken to consider it, and if I do not bring in an amendment on the Report Stage I will deal with that matter showing why I cannot do it.
The Minister's statement has made the position somewhat clearer. If the Minister could put in an amendment making this applicable to all newspapers that make a habit of inciting to violence, that would meet the case right enough, because it would apply to all that particular type of paper and the other type of paper, who conducted their business in the ordinary way, without inciting to violence, would be automatically excluded. That would meet my particular case, I admit.
I will bring it up on the Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 32:—
In sub-section (3), to delete all words after the word "and," line 43, to the end of the sub-section and in lieu thereof to insert the following:—
"shall have no force or effect unless each such House shall, within the next 20 days on which it has sat after such regulation is laid before it, pass a resolution approving of such regulation."
Amendment No. 32 is put down merely as the result of prolonged experience in this House. If the House really has to have anything to say on the matter at all, it would be better to do it positively rather than negatively. If the sanction of the Oireachtas has to be got, let it be got by the Minister responsible for bringing a motion before the House within a certain period (the actual period is not a matter of great import ance) rather than that, for instance a Private Member has to put down a motion and may or may not get an opportunity of discussing it. It all depends on the particular humour that the Minister having responsibility for conducting the business of the House happens to be in at the particular moment whether he will ever get an opportunity of discussing it. I want to point out to the Minister that he has no right to discuss it. When an Order is issued by the Government the proviso is that if within a certain time it is not vetoed by the House it stands, but there is no provision whatsoever that the House may get an opportunity of discussing it. There is no right, I mean, on the part of any Deputy or any Party in the House. It is only the Government can decide whether they will have a right of discussing it or not. If the intention is serious, why not make it a matter that there should be positive approval by the House? The other thing was done, I admit, by both this Government and the last Government very frequently, but I always considered it, to a large extent, a farce.
Of course, the Deputy proposes to reverse the scheme in the Bill. Instead of laying the regulations on the Table and then having them annulled by the Dáil if it so decided, the Deputy wants to have them laid on the Table and that they shall have no force or effect unless each House shall, within the next 20 days on which it has sat after such regulation is laid before it, pass a resolution approving of such regulation. The practice proposed in the existing section is not an unusual practice.
That is my objection to it.
The House has a reasonable method of safeguarding. They can annul these regulations if they so desired.
They cannot. May I point out to the Minister that they cannot unless the Government gives them the opportunity but the Government need not give them the opportunity.
I know that, but that has not been the practice of any Government here.
Amendment put and declared lost.
Section agreed to.
SECTION 12.
(3) If any person is present at or takes part in or gives instruction to or trains or drills an assembly of persons who without or otherwise than in accordance with an authorisation granted by a Minister of State under this section practise, or train or drill themselves in, or are trained or drilled in the use of arms or the performance of any military exercise, evolution, or manoeuvre or who without or otherwise than in accordance with such authorisation have assembled or met together for the purpose of so practising, or training or drilling or being trained or drilled, such person shall be guilty of felony and on conviction thereof shall be liable to a fine not exceeding £500 or, at the discretion of the court, to suffer penal servitude for any term not exceeding seven years or imprisonment for any term not exceeding two years or to both such fine and such penal servitude or imprisonment.
(4) This section shall not apply to any assembly of members of any military or police force lawfully maintained by the Government.
(5) In any prosecution under this section the burden of proof that any act was authorised under this section shall lie on the person prosecuted.
I move amendment No. 33:—
In sub-section (3), page 8, line 16, to delete all from the word "felony" to the end of the sub-section and substitute the words "a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years."
The object of the amendment is to reduce the offence to a misdemeanour punishable by two years' imprisonment. This section was copied from the Treasonable Offences Act, 1925, and there does not seem to be sufficient justification for making it a felony. Also, putting the alternative penalty of a fine is not in harmony with that particular offence.
Amendment No. 33 agreed to.
I move amendment No. 34:—
In page 8, to delete sub-section (5).
Sub-section (5) reads:—
In any prosecution under this section the burden of proof that any act was authorised under this section shall lie on the person prosecuted.
The principle involved in that sub-section is a very dangerous one. That principle has been referred to already by, I think, Deputy Costello, where the onus of proving that the act was not committed by the person prosecuted lies on the person who is prosecuted. I think that is a negation of the basic principle that is followed usually in the trial of a person who is charged with an offence, namely, that the burden of proof should be on the prosecutor, on the State, and I think that the State has sufficient machinery at its control to carry out that duty of proving the case against the accused, rather than that the accused should disprove the case. Therefore I move that this sub-section be deleted.
It cannot be accepted. This section is copied from the Treasonable Offences Act, Section 7, of 1925. You cannot put the burden of proof on the Minister to prove any of these things. The burden of proof must be put on the accused person. There is no other way.
I am glad to hear the Minister giving such testimonial to the Treasonable Offences Act of 1925.
I am glad to hear that the Minister is not accepting the principle. It would be impossible for the Minister to prove a negative, namely, that he did not give an authorisation. A short while ago he eloquently argued the other way.
May I make a plea in support of this amendment? I am surprised that the Minister, who has already had experience in the courts, should come here to sponsor an amendment of this kind. I do not mind where it originated, where it is copied from, or what precedents there are in similar legislation. I think the principle is a vicious one—that a person who is charged will have completely to disprove the case. The meanest criminal in the land in the eyes of the law is held to be innocent until he is proved guilty. I am surprised at the action of the Minister.
He has copied that from Craigavon.
That is for the Labour Congress.
Question put: "That the sub-section proposed to be deleted stand."
The Committee divided: Tá, 55; Níl, 20.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Bourke, Dan.
- Crowley, Fred Hugh.
- Crowley, Tadhg.
- Derrig, Thomas.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Patrick J.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- Harris, Thomas.
- Hogan, Daniel.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Killilea, Mark.
- Little, Patrick J.
- Loughman, Francis.
- Lynch, James B.
- McDevitt, Henry A.
- McEllistrim, Thomas.
- Maguire, Ben.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breslin, Cormac.
- Carty, Frank.
- Childers, Erskine H.
- Moore, Séamus.
- Morrissey, Michael.
- Mullen, Thomas.
- Munnelly, John.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Loghlen, Peter J.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Rice, Brigid M.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Laurence J.
- Ward, Conn.
Níl
- Benson, Ernest E.
- Cogan, Patrick.
- Corish, Richard.
- Costello, John A.
- Davin, William.
- Dockrell, Henry M.
- Doyle, Peadar S.
- Esmonde, John L.
- Everett, James.
- Giles, Patrick.
- Hickey, James.
- Hughes, James.
- Hurley, Jeremiah.
- McGovern, Patrick.
- Murphy, Timothy J.
- Nally, Martin.
- O'Sullivan, John M.
- Pattison, James P.
- Reynolds, Mary.
- Ryan, Jeremiah.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Corish and Everett.
Question declared lost.
Section 12 put and agreed to.
SECTION 13.
(2) In this section the expression "secret society" means an association, society, or other body the members of which are required by the regulations thereof to take or enter into, or do in fact take or enter into, an oath, affirmation or declaration not to disclose the proceedings or some part of the proceedings of the association, society, or body.
I move amendment No. 35:
In sub-section (2), line 47, after the word "an" to insert the word "agreement."
I accept the principle of that amendment.
There is really an idea sometimes that a man is a member of an association. If he is asked is he a member of an association he ceases to be a member of the association, but his membership is resumed after the questioning is over.
Amendment, by leave, withdrawn.
Section 13 put and agreed to.
SECTION 14.
(b) that within four days after the taking of such oath, declaration, or engagement, if not prevented by actual force or sickness, or where so prevented then within four days after the cessor of the hindrance caused by such force or sickness, he declared to an officer of the Gárda Síochána the fact of his having taken such oath, declaration, or engagement, and all the circumstances connected therewith and the names and descriptions of all persons concerned in the administering thereof so far as such circumstances, names, and descriptions were known to him.
I move amendment No. 36:—
In sub-section (2) (b), line 33, after the word "sickness," to insert the words "or other reasonable cause."
I accept the principle of that amendment. There may be a change in the form of words. What was suggested was "or other sufficient cause."
Amendment, by leave, withdrawn.
Sections 14 and 15 put and agreed to.
SECTION 16.
(4) A suppression order shall be conclusive evidence for all purposes that the organisation to which it relates is an unlawful organisation within the meaning of this Act.
I move amendment No. 37:—
To delete sub-section (4).
Again, in considering whether this amendment is reasonable or not, I suggest to the Minister that he should remember that this Part of the Act—the Bill presumably will become an Act—is to be the ordinary law. It seems to me to be going a very long way to say that a Government Order is to be conclusive evidence of anything, and that if the Government made an Order about the matters mentioned in the section, then no power on earth or presumably in Heaven is to say anything about it. It is to be conclusive evidence, irrebuttable by the defendant or the accused person even though it may possibly turn out that he would be in a position to disprove the matters mentioned in the Order. I do think it is going very far indeed to say that it shall be conclusive evidence.
I wonder would it partly meet Deputy Costello's point—and I wonder would the Minister be able to do it—to transfer Section 16 to Part V. This is the kind of thing that ought to be used only—I think the Minister will admit—in circumstances where Part V would come into operation, and when Part V is in operation those powers ought not to be used in the ordinary way. Let the court decide those things, instead of giving power to the Minister to do it. I think if the Minister would transfer Section 16 to Part V it might partly meet the situation.
The whole purpose of this section is to break up conspiracies by trying to force them into the open. The police would be very much hampered in dealing with those matters. If you take away sub-section (4), which it is now proposed to delete, I think the whole section would be nothing more than a pious declaration and would have no effect. As Deputy O'Sullivan says, transferring this to the other Part of the Bill would be ideal if one could see such a situation, but I feel that a continued abnormality will exist, and it is to deal with that continued abnormality which may be there—it may be in a minor form or a weak form—that you want some power like that. Perhaps abnormality is too strong a word to use, but it is a situation in any case that you find difficulties in dealing with without creating the impression that you have to bring down the very extraordinary powers that we take under the other Parts of the Bill—that is, the emergency powers. You would be in a position with such a section as this to deal with certain almost abnormal situations which may be continued in some way or another, situations that you might be able to deal with without creating the position that people would realise that there is an emergency there. I would like very much to have this section and I do not want to put it into the emergency provisions of the Bill.
How do Sections 16 and 17 dovetail into each other? A suppression order is to be conclusive evidence that the organisation is an unlawful organisation, and then Section 17 provides that you can go to the High Court for a declaration that it is not an unlawful organisation. You go to the High Court and the order is put down. You are told it is conclusive evidence and then you are asked to get out. I think whoever drafted this must have been suffering from a legal nightmare. Can the Minister reconcile these sections?
Is there not power to go to the court?
You can go to the court and then have the pleasure of paying costs. You can always bring an action. There used to be a question in the law examination: "Can an action be brought for such-and-such a thing?", and the answer is that an action can always be brought, but you can be stuck for the costs. You can bring your action here all right, but you can be met by the suppression order, which is conclusive evidence. I would like to hear the Minister explaining how he reconciles these two sections. I want to say a few words in reference to Section 16. I regard Section 16 in this Bill as being so drastic, as part of the ordinary law, that I could not vote for any Bill with that section in it. I do not want to go into past history, but we have had our own experience of an organisation, which we thought was perfectly lawful and proper, being banned. We took an action in the courts about it.
I think the putting of a section of this kind into the ordinary permanent law of the country should be considered, not in the light of what this Government would do, or what a Government formed from this or that Party would do; we have to look into the future and see what some Government in the future may do about this matter, and leave ourselves out of it. It is a terribly drastic power in Section 16, a power that enables a Government to declare any organisation, even the St. Vincent de Paul organisation, to be an unlawful organisation. That is not a power that should be given to any Government, no matter from what Party it is composed, as part of the ordinary law. A case could be made for the taking of such power in an emergency, but to take this power as part of the ordinary normal law is something we cannot subscribe to.
I think the Minister ought to consider Deputy O'Sullivan's suggestion of putting it into the emergency part of the Bill, or else provide that it shall only be prima facie evidence, that is to say, that the order of the Government shall be prima facie and not conclusive evidence. Even if the Minister persists in his attitude, I think the provisions in Section 17 make a farce of the whole business. You first provide that the Government order shall be conclusive evidence, and then in Section 17 you say that you may go to the court to decide whether it is or not. You are put out before you can make your case.
I might be able to meet the Deputy as far as the point about prima facie evidence is concerned.
We might get some distance on that.
Can the Minister reconcile the two sections?
How can Section 17 operate in practice if Section 16 is in force?
I will look into the matter. I do not want to give the Deputy an answer now. At the same time, I do not think I can agree to put it into the emergency provisions.
Amendment No. 37, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
(1) Any person (in this section referred to as the applicant) who claims to be a member of an organisation in respect of which a suppression order has been made may, at any time within thirty days after the publication of such order in theIrish Oifigiúil, apply to the High Court in a summary manner on notice to the Attorney-General for a declaration (in this Act referred to as a declaration of legality) that such organisation is not an unlawful organisation.
(2) Where, on an application under the foregoing sub-section of this section, the applicant gives evidence in support of the application and submits himself to cross-examination by counsel for the Attorney-General, and the High Court, after hearing the said evidence and cross-examination and such other (if any) evidence as may be adduced by the applicant or by the Attorney-General, is satisfied that the organisation to which such application relates is not an unlawful organisation, it shall be lawful for the High Court to make a declaration of legality in respect of such organisation.
(3) Whenever, on an application under this section, the High Court, or the Supreme Court on appeal from the High Court, makes a declaration of legality in respect of an organisation, the suppression order relating to such organisation shall forthwith become null and void, but without prejudice to the validity of anything previously done thereunder.
(4) Where the High Court makes a declaration of legality, it shall be lawful for that court, on the application of the Attorney-General, to suspend the operation of the next preceding sub-section of this section in respect of such declaration until the final determination of an appeal by the Attorney-General to the Supreme Court against such declaration, and if the High Court so suspends the said sub-section, the said sub-section shall only come into operation in respect of such declaration if and when the Supreme Court affirms the order of the High Court making such declaration.
(5) Whenever an application for a declaration of legality is made under this section and is refused by the High Court, or by the Supreme Court on appeal from the High Court, it shall not be lawful, in any prosecution of the applicant for the offence of being a member of the organisation to which such application relates, to give in evidence against the applicant any of the following matters, that is to say:—
(a) the fact that he made the said application, or
(b) any admission made by him for the purposes of or during the hearing of the said application, or
(c) any statement made by him in the oral evidence given by him (whether on examination in chief, cross-examination, or re-examination) at the hearing of the said application, or
(d) any affidavit made by him for the purposes of the said application.
I move amendment No. 38:
In sub-section (2), line 38, to delete the words "the applicant gives" and after the word "evidence" to insert the words "is given by or on behalf of the applicant."
This is to safeguard a person called as a witness to give evidence on behalf of the applicant who goes before the High Court. The man is a member of an unlawful association. He goes before the court and he is safeguarded. The evidence he gives in the court cannot be used against him. I understand that is the purpose of the Minister. If he brings witness, I want them to be safeguarded too.
We want to avoid that he is going to get away from being submitted to cross-examination. We are prepared to accept amendment No.39.
The purpose of the amendment is not to allow a man to get away with not submitting himself to cross-examination, but if he cannot give evidence on his own behalf and gives a reasonable excuse as to why he cannot himself give evidence—that is the position we have to consider. Supposing a person cannot give evidence himself; supposing he goes mad in the meantime before the trial and some other person gives evidence on his behalf, then I think the sub-section ought to operate. If the Minister is accepting amendment No. 39, I submit amendment No. 38 must follow.
We want to get in something like sufficient cause. We may be able to meet the Deputy. All we have in mind is people not going there themselves and sending somebody else. They might get a doctor's certificate and there might be no way of examining the doctor as to the illness. I would be satisfied if it can be tightened in such a way that the man is not evading submitting himself to cross-examination without having sufficient excuse. If Deputies wish, I shall examine this matter again. I am concerned with whether a person would be available to submit himself and would be avoiding it by some means or other not genuine.
Amendment No. 38, by leave, withdrawn. Amendment No. 39 not moved.
Amendment No. 40 might involve a contingent liability, but, considering the context, and that similar amendments were allowed under similar circumstances, I am allowing this amendment.
Amendment No. 40:—
In sub-section (3), line 51, after the word "void" to insert the words "and the costs of and incidental to application shall be granted to the applicant by the court."—Deputy Costello.
I am not accepting this amendment. On the question of costs, it would take away from the court the discretion that the court has.
Yes. The court has discret.
If a man wins his action, he ought to get his costs.
Will the court not do that?
The court may not. There is the somewhat vital question as to whether the present Government stands in the position of the Crown in the olden days. There used to be a rule that the Crown never got nor gave costs. Some judges are still inclined to adhere to that. They are getting away from it. I am glad to see that, but at the same time I want to see that that rule gets legal validity, and if you win your case there should not be any question of depriving you of your costs.
I could not agree to the discretion being taken from the courts.
The Minister has agreed to it in reference to jury actions, for instance.
There is nothing so terribly shocking about taking the question of jurisdiction in reference to costs away from the courts. The jurisdiction of the courts in these actions tried by a jury is completely taken away and costs must follow. If you find that the Government has taken the very vital step of declaring an organisation unlawful, and the High Court and Supreme Court decide that they are wrong, I think that it ought to be obligatory that the person who is put to that very considerable expense and trouble should be assured of his costs, and that we should not rely upon a particular judge's views of a certain situation, or certain matters of that kind, as to whether he gets costs or not. If he has won the action against the Government, against all the forces of the State, against all the money that the State has behind its counsel and solicitor, then he ought to get his costs as a matter of right and not as a matter of judicial discretion.
The Deputy knows that there are cases which will arise where there are degrees of culpability, if I might put it that way, and where the court might be very reluctant to give costs.
There cannot be degrees of culpability as to whether an organisation is lawful or unlawful. There is only the one issue—either it is lawful or unlawful. There cannot be any degrees about the issue which the court has to try as to whether a particular organisation is lawful or unlawful. The court might think it is nearly unlawful. I think that is what the Minister is getting at.
There might be surrounding circumstances.
What surrounding circumstances are there? Lawful or unlawful is the only issue. What I am afraid of is that the court might think, if they gave costs against the Government, that they were casting a slur upon the Government in taking the action that had been impugned and that, therefore, an ordinary private citizen, who has been put to the trouble and considerable expense of appealing to the court should be assured of getting his costs as a matter of right. I think there is a principle involved in the matter.
Amendment put and declared lost.
I move amendment No. 41:—
In sub-section (3), lines 51 and 52, to delete all words from and including the word "but" in line 51 to the end of the sub-section.
I presume the Minister is going to accept this amendment?
It is a most shocking provision in the section. Has the Minister adverted to the drastic character of the last two sentences in the sub-section? This is the most vital principle in this Bill and that is one of the reasons why I objected to these parts of the Bill declaring the ordinary law. We are solemnly asked to pass into law a provision which I might paraphrase as follows: The Government declares by order that a certain organisation is an unlawful organisation and proceeds to act accordingly.
Some member or members of the organisation itself proceed to adopt the procedure permitted by Section 17 and go to the High Court and the Supreme Court and win in both courts. It is declared by the High Court that it is and always was a lawful organisation, and that decision of the High Court is affirmed by the Supreme Court on appeal. Both courts have declared that the organisation was a lawful organisation; but anything done by the Government in the meantime, any imprisonment that was obtained, any forfeiture put into effect, any fine imposed and extracted, are all to remain as lawful. Surely the Minister cannot ask the House to put that into operation as part of the ordinary law of the State? Really, I think we are going a very long way indeed if we allow ourselves to say that the conditions of this country require such a provision as part of the ordinary law.
I did take the view that the law as it stands, perhaps with some little tightening up, was adequate to meet most of the conditions that might arise, but that in case of an emergency extra powers have to be taken. But we are asked here in this section to say that, although the courts have declared an organisation always to have been lawful, any person who has been imprisoned before the courts have had time to give their decision is to suffer his imprisonment without redress. I think it is going beyond the beyonds altogether and it certainly is a section for which there is no justification.
I cannot accept the amendment. If I did, we would have the police in the position that they would always have to act at their peril and would not have the protection which the sub-section gives at present. The police have to have adequate powers to deal with the organisations contemplated in this Bill. They will have to be in a position that once a body or organisation is declared to be unlawful, they will be able to go ahead and take all the necessary steps to deal with that organisation as an unlawful organisation. Other wise the police will be in a very confined and crabbed position. If they always have to be thinking of the ultimate result, they cannot perform their duties effectively.
The Minister's tears over the police are very touching. Putting the poor, unfortunate police in a difficult position is really something that we ought not to contemplate, according to the Minister. What about the poor, unfortunate citizen who is languishing in jail wrongfully, as will be subsequently discovered by the courts? We have no tears to shed for him. We have tears to shed for the police who must be unloosened and whose actions cannot be hampered, not in reference to illegal organisations, but as regards organisations which our courts have declared to be lawful and always to have been lawful. Nothing is to be done to hamper the police in their activities in reference to these organisations. I think a provision of that kind, coming from this House as part of the ordinary law, if the Minister really is serious about it, shows that we have reached a very curious situation in the history of our jurisprudence.
It is not a question of tears for the police or anybody else, but that when the police have a duty to perform they must be able to go about the performance of that duty in such a way that they are not going to foresee a hampering and holding up that would render their activities absolutely nugatory. If they are going to deal with organisations which they believe are out to upset the State and to assume functions and carry on unlawful and illegal activities, it would be impossible if they can foresee at every turn that everything they are going to do is afterwards to be upset as a result of some decision of the courts.
The Minister does not realise what he is doing. He has no conception of the seriousness of the action proposed. He has made remarks on the amendment as if the amendment had reference to hampering their activities against illegal organisations. The amendment has reference only to organisations which are legal, but which were wrongly declared to be illegal. I certainly will have no hand, act or part in seeking to cloak the legality of police or Government action in reference to a matter which the courts subsequently declare to have been wrongly taken by the Government.
The Minister has made his few remarks in a sort of indingnant tone, as if the police were going to be hampered in their activities against illegal organisations. They are not. They are going to be hampered in their action against an organisation which the courts subsequently declare to have been wrongly declared unlawful by Government action. I think it is proper that the police should have to face that situation. They have the Government to stand over them and the Dáil to pass an indemnity Act if the matter is serious enough. I think the ordinary citizen, who is damnified by Government action and subsequently has his rights adjusted by our own courts, is entitled to the protection of this House.
The persons who are in custody will be released.
Perhaps after six months. It is very comforting to them to know that. Supposing they are shot in the meantime as might very easily happen? What are they going to be released from? It is possible they will be shot in the meantime. I hope the Minister will accept the amendment.
I move to report progress.
Progress reported; Committee to sit again.
