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Dáil Éireann debate -
Saturday, 2 Sep 1939

Vol. 77 No. 1

First Amendment of the Constitution Bill, 1939—Second Stage.

I move that the Bill be now read a Second Time. As regards this Bill, I do not think I need add anything to what I have said already.

This amendment to the Constitution, on its face, would appear to a layman to be very wide in certain respects, and rather narrow, possibly, in other respects. A very serious criticism of the measure would be that, on a decision being taken in both Houses of the Oireachtas declaring a state of national emergency, every power that the citizen has, and every right of the citizen under the Constitution, vanishes immediately. It would he desirable that sonic provision should be inserted in this amendment of the Constitution providing for proof that there is an armed conflict affecting the vital interests of this country. There are occasions upon which armed conflicts may be taking place at the other side of the globe. They may affect certain interests in this country, but not affect vital interests. It may be naturally concluded by the ordinary citizen that the Constitution, or the clauses of the Constitution which give him certain rights and certain safeguards— which cannot be abrogated even by legislation which passes through both Houses of the Oireachtas after due and careful consideration—can be immediately put into cold storage by the mere passing of a resolution by a simple majority in both Houses.

It struck me that it might be possible to include in this amendment provision for a message from the President to the effect that in his view a national emergency existed, and that it was desirable that the Houses of the Oireachtas should take that matter into consideration. The other point is this. What exactly is meant by a time of war and armed conflict? It is possible that two nations might declare that a state of war exists and yet there might not be an armed conflict. It may be desirable in a case of that sort to introduce legislation to deal with the situation that would then arise. It may be well for the Government to consider these two aspects of this particular amendment. Practically in all cases where power has been seized by Governments in recent years, it has been through the process of law. All the forms have been complied with, whether or not they were in accordance with the facts of the period. An amendment of the Constitution can be made in this way during two years, but after that it would be necessary to get a referendum in order to alter it. There has been time during the last few months, when the Government could have considered this matter and might have had it dealt with, when there was much less tension than there is at the present moment. That, however, is a matter which is now past. It is for the House to consider whether, in the circumstances, it is not advisable to have such precautions as will render it impossible for a passing majority of the two Houses of the Oireachtas to deprive citizens of all the rights they have under the Constitution and at the same time to have the phraseology so regulated that the Government would not be hampered in the event of a state of war existing without actually an armed conflict having taken place.

I take it that this Bill which is being introduced by the Government is the result of some consideration by them that the provisions of the existing Constitution which make reference to a time of war or armed rebellion do not define precisely the circumstances which would accurately or precisely describe that condition of affairs. I presume, therefore, that the Government has received the advice of its legal adviser that the term "time of war" or "time of armed rebellion" as set out in the Constitution does not enable them to do certain things which are necessary in a time of crisis such as that through which we are now passing. We could quite understand that, even though we may not be at war, we might very well have here a condition almost akin to war from the standpoint of economic and industrial emergency. I would like from the Taoiseach an assurance that a provision of this kind and an amendment of the Constitution in this manner would not he availed of to render to some extent nugatory the provisions of the Constitution which are of vital importance to the citizens, if the state of war, for instance, is not in Britain, but in some other portion of either Europe or the world. I take it that the Government have introduced this Bill in order to deal with the situation which is now presented to us, namely, that our next-door neighbour is likely to be involved in war; but the Taoiseach will probably assure the House that if a war is taking place in some other portion of the world it is not intended, in ordinary circumstances, to use that fact as reason for rendering nugatory certain provisions in the existing Constitution.

I understood from the Taoiseach to-day that he believed that when the Constitution was being passed, there was included in Article 28 the power which he now seeks, that it had included the power to abrogate the whole Constitution when any resolution of either House was passed declaring that a state of national emergency did exist. That certainly was not the impression that I had on reading it and it comes now as a surprise to find that that was the view which the Taoiseach had when passing this document. We are now hurriedly introducing an amendment which extends he conditions under which the entire constitutional liberties of the citizens may be abrogated. There is a limited period of about two years in which that amendment may be again changed by ordinary legislation. Let us hope that when this period of emergency is over, that particular amendment will also be considered and something better than it will be inserted.

On the resolution itself I can only say that it has been an ordinary occurrence to people visiting a country in the course of the last couple of years to be shown over the points of strategical importance and be told the positions that have been mined and the precautions that have been taken to blow them up. This country now finds itself facing a state in which there is national emergency, and the best it can do is to blow up the entire Constitution. I do not say that it is not necessary to do that, but let us be clear that that is what we are doing. Can we save anything from this wreck? It may be necessary to have government by emergency resolution, government by decree, which means government by civil servants. I Can we save anything? The constitutional liberties of the people depend upon two or three pivotal rights: freedom from arrest, liberty to associate and freedom to speak one's mind. What is the situation that is going to exist when these constitutional guarantees are abrogated? Can we get an assurance from the Taoiseach on these lines: will we be assured that the Parliamentary Assembly will be called together frequently so that members will have an opportunity of speaking on the emergency resolutions? Will we have a further guarantee from the Taoiseach that there will be freedom in the Parliament so that if members decide-to raise points they will have the opportunity? When there is a resolution brought in to nullify a particular order, the order is usually many months in operation before there is an opportunity of discussing it. I would ask the Taoiseach to give an assurance in regard to these emergency resolutions that Government time and private time will be given in order to have them discussed. It is necessary to get from the Taoiseach a guarantee that the ordinary privileges of Parliament would still exist and that we will be allowed to speak our minds here, even though the full effect of that may not be got, because in ordinary circumstances one does get public opinion formed by the discussion here being promulgated outside in the Press. The Press is going to suffer censorship: our attention has been directed to that. Let us see that this House will not be put under a censorship in so far as the House may not be allowed to meet at all. I notice that the powers of arrest given in the Emergency Bill are very wide in character. I do not know why the Taoiseach should look for further powers of arrest when one considers recent legislation, which has made it possible to arrest, detain or intern almost at the Government's will people who are declared to be engaged in any activity injurious to the State, which is a wide term covering almost anything. I would ask the Taoiseach to give a comprehensive assurance that on a certain number of occasions it will be possible to have discussion so that no one will be unjustly affected by the measures being brought in.

There is another point, and that is with regard to currency. I do not suggest that an attempt is to be made to interfere with the currency as we have it in this State. I think that, the Taoiseach will get more confidence here and now, in the moderation he intends to use with regard to these proposal, if he will give the guarantees I have requested, and state that the liberty and right to discuss will be forthcoming. One last thing I may say that, perhaps, it is a pood thing, from the very limited point of view, that this matter arises now and not two years hence.

I want to say very shortly that the position of any Opposition on legislation of this kind is extremely difficult. We have here a clear constitutional duty to defend the rights and interests of the ordinary man, his constitutional rights and interests against encroachment by the Executive, or by bureaucracy represented by the Civil Service. Nevertheless, we have got this fact, that the Government of this country, faced with the world situation that it is now faced with, is entitled to ask for exceptional powers. We may have grave misgivings about the abuse of such powers, either by this or by any other Government that afterwards may be elected, but whether we trust individually the Fianna Fáil Government or not, the fact remains that the present Executive Council is the Government elected by the Irish people and is, as any Government in this country in these circumstances would be, entitled to the exceptional powers they look for and, I think, they are so entitled when the world dissolves itself into war. Therefore, this Government is entitled to them and, reluctant though we may be to give these Draconian powers, I think we are obliged to give them, and to trust that any Government elected by the Irish people will prove themselves worthy of the immense responsibilities placed upon them, and the trust reposed in them toy those sent here representing what is a minority of our people.

The Taoiseach, in introducing the measure, reviewed the situation briefly. On these observations I wish to comment shortly. Emergency regulations will be made, as he indicated, arising from the present crisis. Circumstances, I agree, require that this country shall be neutral in this war, if it is humanly possible to keep it neutral. But does that imply or is it to be taken as meaning that the people of this country are indifferent to the issue of the conflict now proceeding? I think it right to say now that I do not believe they are indifferent. I believe the vast majority of our people place their sympathy on the side of Poland, France, and Great, Britain against Berlin and Moscow, and I think it right that, at an early hour, that should be placed on record. The Taoiseach has indicated that regulations will have to be made to supply the vital necessities of our people during the impending period of conflict. We must ask ourselves at this time, whence these supplies will come and how we hope to get them? I think it right that each individual Deputy, apart from his party affiliations, should consider that question and ask himself where we are going to get supplies, which this country must have if it is to carry on; and also ask himself, if these supplies are going to come to us in British ships from British sources, shall we welcome in our ports the ships which bring us supplies which our people must have if they are to survive? I think we will welcome such supplies when they come.

I think we must go out to look for them, because I think it is to be of vital interest to our own people to get these supplies, and to maintain them for the entire period of this appalling conflict, and when we get them—as I believe we will—we shall have to ask ourselves, if we are asked—and we may not be—what our attitude is towards the ships which are required to protect merchantmen bringing vital supplies to Great Britain? What will our attitude be to them? Will we take up the position that we ask our vital supplies to be protected, that we ask of Britain supplies to keep our people alive, but that if she asks for facilities to get food supplies to keep her own people protected from starvation and want that we refuse to welcome those ships which protect our supplies and hers as we welcome the ships that carry supplies to ourselves? I ask no answer to that question from the Taoiseach. I simply put that point to each individual in the House amongst all Parties, and invite each of them to reflect well on the decision that must be taken, and to ask: Will Ireland take up the position that she seeks for her own people supplies, but that she is not prepared to vouchsafe facilities to secure supplies for Great Britain from which we hope to get what we require? I urgently ask every Deputy to reflect on that dilemma, and to weigh it up in his mind. Before requesting any categorical reply from the Taoiseach, I invite him to consider this proposal and to consider the reactions of his own colleagues and of the country in the dilemma that I think is before him.

I do not think anything I said with regard to the views taken as to the meaning of "time of war" suggested that when the Constitution was passing, I thought that the Constitution could be blown up at any time. Everybody knows that, in time of war, a Government, if it is to do its duty, has to be armed with emergency powers. There is not a Constitution in the world in which provision is not made to enable the Executive of the State, in time of crisis, to carry on without the restrictions placed upon it by the Constitution. What I said was that "time of war," if it meant anything, meant the sort of condition in which this State will find itself if Great Britain is at war. We shall have war all round us. We may not be participating ourselves in that war, but we shall have conditions here almost the same, so far as the question of supplying the material needs of our people is concerned, as the condition we would have if we were actually a belligerent. It is a question, then, as to whether the term "time of war" in the Constitution meant conditions exactly like these, and it was not suggested when we were discussing the Constitution, so far as my recollection goes, that provision should not be made for such conditions. This amendment has been introduced simply to clear away a possible doubt. I am not sure whether a court here would not hold that the commonsense view to which I gave expression as to the meaning of "time of war" was the proper view but, as a number of orders will depend upon the Bill, and to prevent any question of challenge of their legality, we want to take no risks, and in order to avoid a possible risk, we are introducing the amendment.

I sympathise with the Loader of the Opposition who says that the opportunity might possibly be taken at any time by a Party which had a majority in the Dail and Seanad to say: "There is an armed conflict and because there is an armed conflict, we are passing a resolution that the Executive should be armed with the authority given in a Bill of this sort," and that constitutional guarantees should be suspended. I do not know whether it would be possible to provide any further safeguard. There is a point, I admit, in the suggestion that it might be made necessary that the President, who is outside Parties and fundamentally the guardian of the Constitution, should express an opinion. In this case he will have an opportunity of expressing an opinion because, within these years, this amendment of the Constitution could not be passed, if he decided to exercise the powers he has and to compel its reference to the people, so that, so far as this particular emergency is concerned, that added safeguard is there. Whether it should be put in the amendment, so as to apply in future, is another matter. I will consider the suggestion that this amendment should be examined again during the remainder of the period which has still to run during which the Constitution may be amended by legislation. My own view is that it is almost impossible to get hard and fast lines on which anybody, other than the Oireachtas itself, can determine whether or not an emergency exists in which the vital interests of the State are concerned if there is an armed conflict. A number of theoretical points could be raised with regard to the matter, I know, but in relation to this particular amendment it could not be passed if the President were to say to himself: "This is an excuse—there is no real emergency at the moment—by the Government to get these extraordinary powers." When it is through. if any emergency arises, it leaves the Oireachtas, by a majority in both Houses, to decide whether, in fact, there is an armed conflict which affects the vital interests of the nation.

Would it be better to leave it to a court to decide that or to the representatives of the people? I am not sure that we would be able to express it in such particular terms that a court could be permitted to decide it. After all, conditions of this sort are conditions which are best known by the Government and best appreciated, perhaps, by the representatives of the people than by any other court. However, I understand the point; I appreciate it; and I say to the Leader of the Opposition, whose objection I fully understand, that there is in this particular case the guarantee and that I will give the matter further consideration during the time which has to run during which the Constitution can be amended by legislation.

With regard to the guarantees that have been asked as to the manner in which we propose to exercise these powers, we have been some seven years in office and I do not think it am be suggested that, at any time during that period, the Government acted in any way other than as a Government fully responsible to Parliament. That must be our guarantee. It is the only guarantee we can give, because, if we were not such, any promise that I might make would be of no value. I simply promise that in the exercise of these powers we will have regard to constitutional right and constitutional practice here, and that we will summon the Dáil as frequently as possible, considering the demands that may be made for the conduct of the public business generally, because, remember, that from the moment this sort of emergency arises, it is practically a day and night work for every member of the Ministry to perform his executive duties. There will be many problems coming up for solution in regard to the several Departments and there will also be a number of problems which the Government, as a whole, will have to discuss, so that from that point of view, I do not want to bind myself to the statement that Parliament will be called very frequently, or anything of that sort, but, as I think I have already said, if any leaders of responsible Parties come to me and say: "We think that in view of the passage of such and such measures, you ought to summon Parliament, and give us an opportunity of discussing these orders and measures," I should certainly do so. I cannot say any more.

With regard to the powers of arrest and the other powers taken, I think it would be better to leave these over for the Committee Stage of the Bill. The various Ministers who will have the exercise of the powers proposed to he given will then be able to answer in detail the points raised. A committee has been sitting and examining the situation for a considerable time and asking themselves what are the various possibilities that might arise and the powers that would be needed, and it is as a result of the recommendations of such a committee that this Bill has been drafted. If there are any particular points to be raised, I think the Ministers concerned could answer them on the Committee Stage.

Question put and agreed to.