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Dáil Éireann debate -
Thursday, 4 Jan 1940

Vol. 78 No. 11

Committee on Finance. - Offences Against the State (Amendment) Bill, 1940—Committee and Final Stages.

Sections 1 to 4 put and declared carried.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."

There is a portion of this section which possibly some of the legal gentlemen will deal with far better than I can. In line 50 it declares that for certain acts a person shall be guilty of a contravention of the regulations made under this part of the Act. Those regulations are not made by the Act. There is a provision by which they can be made. Is it correct and in order that it should be declared in the Bill that a certain thing is an offence under the regulations, such regulations not being at the time in existence?

The regulations will be made to deal with that.

A further section merely declares that the Minister may make regulations. Supposing such regulations are never made, how can any person be guilty of an offence against regulations that do not exist?

It cannot be an offence if the regulations are not made.

It distinctly says in sub-section (2) that the refusal to do so-and-so under the said sub-section shall be an offence against the regulations under this part of the Act. Section 7 says that the Minister may make regulations, but he does not have to.

If the Deputy looks at it he will see "and shall be dealt with accordingly". If there are no regulations made, surely there cannot be any offence.

Are the regulations contemplated under this Bill to be laid upon the Table of the Dáil and to be revocable by resolution?

They are. All regulations are laid on the Table.

Is it set out that these regulations may be revoked by a motion of this House?

It is not set out in the Bill.

If it is not, what power has this House to take cognisance of any regulation made under the Bill? I think Deputy Benson raised a point of very material substance. If the Government say, "We have to take Draconian powers to deal with the emergency," we should give the powers. But we are going further than was contemplated if we are going to give, not only unprecedented powers, but power to create a series of new crimes by regulations without any necessity being imposed on the Government to lay the regulations on the Table of the House with a view to having them reviewed, if the House thinks it is necessary. Why does the Minister exclude from the Bill a provision which is contained in every other Bill which allows the making of regulations by a Minister? Is it not true that in every other case where a Minister can make regulations which have the effect of a statute there was an obligation on the Minister to lay the regulations on the Table of the Dáil and, for a period of 21 days, it would be open to any person to move to have them revoked?

Look at what the regulations refer to. They refer to sub-section (1). The regulations, I presume, will prescribe the manner in which the demand for the name and address of a person can be made; the manner in which the search will be carried out and how the photograph and finger-prints are to be taken. It is clear that sub-section (2) only relates to the matters in sub-section (1).

That is not right.

The regulations are made under Section 12 of the main Act and they must be laid on the Table.

Surely there can be no objection to laying them on the Table of the House. It is a safeguard against any possibility of abuse and is often much more important in connection with any allegation of abuse, because it allows the Minister to say, "They were before the House for 21 days and, if they are so awful as you complain, why did you not object." I suggest to the Minister that such an amendment should be put in. It would do no harm.

The Minister for Industry and Commerce is not correct when he says that it only refers to (a), (b), (c) and (d) of sub-section (1). If he reads sub-section (2), he will find there is an additional thing:

"shall be guilty of a contravention of the regulations made under this part of this Act in relation to the preservation of discipline and shall be dealt with accordingly."

What is that for?

Has the Minister any objection to putting that in?

None whatever.

Will you put it in?

On the Report Stage? If you put it in in the Seanad, you will be dragging us back here again.

We will put it in in the Seanad.

If you do, you will be dragging us back next week. Put it in on the Report Stage.

Is there an amendment to Section 5?

The Minister will introduce that on Report?

Question put and declared carried.
Section 6 agreed to.
Section 7 declared carried.
SECTION 8.
(2) The following provisions shall apply and have effect in relation to the commission, that is to say:—
(a) the members of the commission shall be appointed and be removable by the Government;
(b) the commission shall consist of three persons of whom one shall be a barrister or solicitor of not less than seven years' standing or be or have been a judge of the Supreme Court, the High Court, or the Circuit Court or a justice of the District Court;.

On this section, I put down simple and accommodating amendments for the Government and I move:—

In sub-section (b), line 20, after the word "persons" to insert the word "each" and to delete the word "one", and in line 21, after the word "a", to insert the word "practising".

The amendment would then provide that this commission should consist of three persons each of whom would be a practising barrister or solicitor of not less than seven years' standing. There would then be a court of legal persons to decide these matters. The Government would still have the nomination of these persons but such a court would have for the public a greater guarantee that a case advanced would be considered on its merits and the liberty of the person would not be subject to the finding of persons of non-legal experience. The Minister can say, of course, that nearly all criminal cases are decided by non-legal persons —jurors. But this is not a jury. It is, in essence, a court and it is a court charged with very serious responsibility. The powers have been given and we ask for guarantees regarding the use of them. Recent events have satisfied us that a Government in possession of these powers may abuse them. We may get guarantees from the Government that they will not abuse these powers, but this enactment will be part of the law of the State and succeeding Governments may not honour the undertaking given by this Government. They can give a guarantee only for themselves while in office. That is not fair either to the ordinary citizen or to the law of the State. There ought to be some safeguard for the individual. We are seeking to ensure that that safeguard will be equivalent to a guarantee of the liberty of the individual.

I have a difficulty about accepting this amendment. At some time or other, these commissions may become dangerous places of adjudication, and I should not like to accept the amendment for that reason. While I have not in mind the exact situation that might arise, I can see that, in a certain set of circumstances, it might be very dangerous for people to act on it. We might not be able to get people to act on it. As the Deputy knows, when you come up against a situation like that, you have to fall back upon the only people who will act for you— the Army. That is the objection I have to it.

Assuming that that is so, is it not possible that in the Army you would find a solicitor or barrister of seven years' standing?

The amendment pro vides that they should be practising their profession.

Do they not appear at courts-martial? I see some force in what the Minister says but, on the other hand, there is the danger of abuse. This is going to be ordinary law. It will remain when, perhaps, all of us shall have passed away. While there may be one danger, there is the greater danger to the liberty of the individual. If a situation such as the Minister has adverted to should arise, Parliament could give the necessary powers to deal with it and ought to give these powers. Meantime, we have in mind the liberty of the person, which I consider is of paramount importance. The other case has not yet arisen.

There would be one person on the court who would have knowledge of evidence. You are only asking for one?

I am asking for three.

In the first amendment. In the second amendment, you are asking for two legal persons and an officer.

If I do not get the three eggs, I will take two.

I shall take the second amendment.

Amendment, by leave, withdrawn.

I move:—

In sub-section (2) (b), line 21, after the word "be" to insert the words "a commissioned officer of the defence forces with not less than seven years' service and each of the others shall be."

I do not know if the Minister has any observation to make regarding the commissioned officer. I put that down because there are lieutenants in the Army with 15 years' service. If I were to provide for a ranker, I would be doing an injustice to these men who, in normal circumstances, should have higher rank. I did not like to draw a line in respect of men who have given good service. I put down seven years' service for the purpose of experience. I had in mind ten years, but I thought it might be said that I had in contemplation only an officer who was there before the Government took office. I did not want to have that complication.

I shall take that amendment.

There is a slight omission in this amendment. The word "practising" is left out. Would the Minister consider putting in that word?

Would you go so far as to say that one would be a practising barrister?

Yes. I shall bear it in mind for the commission.

Amendment agreed to.

I move amendment No. 3:—

In sub-section (3) to add a new paragraph as follows:—

(e) If the commission fail to report that no reasonable grounds exist for the continued detention of such person, such person may apply to the High Court in a summary manner for an order declaring that no reasonable grounds exist for his continued detention and the court may make such order if and only if such person by evidence satisfied the High Court that no such reasonable ground exists. If such order be made such person shall, with all convenient speed, be released.

This amendment, of course, is in a different category from either of the other two amendments. A person may feel aggrieved in connection with a decision of this court, and this amendment seeks to provide that he shall have an avenue of approach to the High Court and that it would fall upon him to produce his evidence there and to show that there was not a reasonable ground for detaining him. This, again, is a further attempt to ensure the liberty of the person. I do not know that it is necessary to assure the Minister that, while I have no belief whatever in internment, nevertheless I am not interfering with the Government in this matter of internment if they think that it is the only means of securing the safety of the State. My concern is only about a person who, through accident or otherwise, is detained and in respect of whom there is not a proper case for detention. There have been cases in which persons have been imprisoned wrongfully. I have heard of one case of a man who spent 27 years in jail—not in this country. It seems that he had been forgotten, but by reason of the industry, attention and devotion of a public-spirited man, whose son is a member of this House, he was released eventually. I know of a case of one man in this country who was in jail for over a year when a sentence of two months would have been sufficient for the offence. It is unlikely that there would be many cases of that sort, but the efficacy of this Act, in its use and operation generally, will depend upon the justice with which it is administered, and this amendment is put down with a view to affording an opportunity to a person to obtain his freedom if he has been improperly detained.

I should like to ask the Minister, in all seriousness, to accept this amendment, and, just as in the case of a similar amendment to the Bill last night, my entire objection in this matter is because both Bills are lacking in a provision such as this. I do not suppose the Minister will accept the amendment—I think we can anticipate that—but I think that their only reason for refusing to accept it is that the Minister for Justice and his colleague seem to have a holy horror of the High Court.

There is a reason for that, when dealing with detention. Internment is a case, as I see it, where you have not sufficient evidence. You know, from police reports, that a person is associated with some illegal organisation and you intern him. If you have an appeal to the High Court, I should imagine that the High Court would have regard to the rules of evidence and that, when you went in there, if you were not able to satisfy the judge on the tendering of legal evidence, the person concerned would get away whether he was entitled to be detained or not. With regard to the cases put forward by Deputy Cosgrave, where a person was left in jail for a considerable time or for a longer time than he should have been in prison, is not that point got over by the fact that there is a commission there to which the man can apply, just as to the High Court?

This amendment was really framed with a view to the situation outlined by the Minister, to the effect that detention is aimed at where sufficient evidence for a prosecution does not exist. It was in an endeavour to meet that situation that this amendment was framed and provided with the somewhat unusual provision that the burden would be on the person appealing to satisfy the High Court of his innocence, and that there were no reasonable grounds for his continued detention. The framework of the amendment is that the person must appeal to the commission in the first place. Now, considering the type of persons who may be detained under the Act, I consider that the very fact that they would appeal to the commission would be evidence of their bona fides, because I imagine that the type of people who are aimed at here and who may be detained under this Act would not appeal to the commission under any circumstances. Accordingly, a person who does apply to the commission furnishes evidence of his bona fides, in my opinion, and of the fact that there is something to be said against his detention.

If, in addition to appealing to the commission, he goes into the public courts of the country and makes an appeal for his release then I think he has given two proofs of the fact that he regards his detention as something that is unreasonable and contrary to what he thinks to be right and proper. I think we may assume that most of the contemplated internees would refuse to appeal or give any recognition, and this two-fold recognition would be some evidence of a person's bona fides. Then, if he does go before the High Court, he will have to satisfy the court of the fact that his continued detention is unreasonable. The onus is put on him of proving that, and that onus is not usually put on a person charged with a criminal offence. As I have said, it was in order to meet the case outlined by the Minister that the amendment was framed in this way. I understand that this Bill is to go before the Supreme Court for a decision as to whether or not it is in the spirit of the Constitution. I imagine—and I emphasise the word “imagine”—that a provision of this kind might be helpful in support of this particular Bill.

Well, I do not know. We have a commission there to hear an appeal, and I think that is quite enough for anybody.

Amendment put and declared lost.
Question—"That Section 8, as amended, stand part of the Bill"—put and agreed to.
NEW SECTION.

I move amendment No. 4:—

After Section 8 to add a new section as follows:—

(9) The Government shall once at least in every three months furnish to each House of the Oireachtas particulars of (a) persons detained under this part of this Act, (b) persons in respect of whom the commission has made a report to the Government, (c) persons in respect of whom the commission has reported that no reasonable grounds exist for their continued detention, (d) persons who had been detained under this part of this Act but who had been released on the report of the commission, and (e) persons who had been detained under this part of this Act who had been released without a report of the commission.

This amendment scarcely requires anything to be said in its favour. It makes provision to the effect that once at least in every three months the Government shall furnish certain particulars to each House of the Oireachtas, particulars with regard to persons detained and the other particulars which are set out in the amendment. It has this advantage about it, that it provides members of both Houses with information regarding what has happened. If a case could happen in which a man was detained for any length of time it would be possible to have a question raised in the House as to whether that man's case would be reconsidered, or something of that sort. The Government could be asked, for instance, what other steps might be taken to deal with that man. I think it is a reasonable amendment and it will not interfere with the working of the Act.

Could you not get those particulars by way of parliamentary question?

That is a procedure I object to. If a parliamentary question is to be put about matters of this sort Deputies are liable to be button-holed and so on. The information is given there and it is no compliment to anybody to get it. There is another point. A Deputy might, on occasion, think that if he were to ask a question of this type he would be showing an anxiety for some cause or other. We do not want any such thing as that. It is better that the information should be supplied in the way I suggest. It is information that the House ought to have. We are giving powers to the Government to detain certain persons and the least we ought to get is information as to what has happened.

Do you want the particulars as frequently as every three months?

Three months is a good while in which to leave a man.

Would the Deputy agree to every six months?

I am quite satisfied. The Minister is a very hard bargainer.

The Government do not like to embarrass the Opposition.

Amendment, as altered, agreed to.
New section ordered to stand part of the Bill.
Schedule and Title agreed to.
Bill reported with amendments.
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